OFFICIAL STATEMENT from ALEC PETERS…

This morning, Judge Klausner made a ruling that the case will go to Jury Trial to determine if Axanar is “substantially similar” to the CBS copyrighted works. If it is, then the jury will have to find if the infringement is “willful” or “non-willful”, and Judge Klausner already stated that “Peters’ actions demonstrate a respect for Plaintiffs’ intellectual property that makes a finding of willfulness on summary judgement inappropriate.” If the jury does not find “substantial similarity” then the case will be dismissed.

Depending on the outcome of the trial, Axanar may choose to appeal the verdict to the Ninth Circuit, where Erin Ranahan is 5-0. The Ninth Circuit Court of Appeals is also known to favor artist rights.

So the story of Axanar continues…

37 thoughts on “OFFICIAL STATEMENT from ALEC PETERS…”

  1. In this case, the artists rights favored will most likely belong to CBS and Paramount.

  2. Ummmm, no Alec, that’s not correct. If the jury finds that it is unwillful it will only lessen the damages against you. The judge has already ruled that you violated the Plaintiffs copyrights.

    Just for clarity, here are the two full paragraphs that your brief quote above is from:

    “The Determination of Willfulness Must Be Left to the Jury
    “To prove ‘willfulness’ under the Copyright Act, the plaintiff must show (1) that the defendant was actually aware of the infringing activity, or (2) that the defendant’s actions were the result of ‘reckless disregard’ for, or ‘willful blindness’ to, the copyright holder’s rights.” Friedman v. Live Nation Merch., Inc., 833 F.3d 1180, 1186 (9th Cir. 2016). One “who reasonably and in good faith believes [his conduct does not constitute copyright infringement], is not ‘willful’. . . .” Evergreen Safety Council v. RSA Network Inc., 697 F.3d 1221, 1228 (9th Cir. 2012) (quoting 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 14.04 (Matthew Bender rev. ed. 2012)). “A determination of willfulness requires an assessment of a defendant’s state of mind. Questions involving a person’s state of mind are generally factual issues inappropriate for resolution by summary judgment.” Friedman, 833 F.3d at 1186 (internal quotation marks and alteration omitted).
    Here, Star Trek has a long history of fan films that stayed free from copyright disputes. (Lane Decl. Ex. 1, ECF No. 75-26.) Although Peters repeatedly stated that the Axanar Works were not to be called fan films, Defendants assert that this statement was made only to distinguish the quality of the Axanar Works (Pls.’ SUF ¶ 103; Defs.’ Resp. ¶ 103.) Thus, Peters’ belief that the Axanar Works were noncommercial fan films in light of his understanding from CBS that it would tolerate such films creates an issue of his state of mind that must be adjudicated by the jury. (See Defs.’ AMF ¶¶ 113, 118.) Furthermore, before creating the Axanar Works, Peters sent several emails to CBS to report third parties whom he believed were using Star Trek intellectual property without authorization. (Pls.’ SUF ¶ 117.) Viewed in the light most favorable to the nonmovant Defendants, Peters’ actions demonstrate a respect for Plaintiffs’ intellectual property that makes a finding of willfulness on summary judgement inappropriate.”

    1. Um, no, Curly Boy, you’re not reading that right! You’re conflating the “substantially similar” part with the “willful vs. non-willful” determination. If the jury doesn’t find it substantially similar, then “willful or non willful” is moot, as Axanar would, perforce, not be infringing.

      Which begs this question: If Judge Klausner has already “ruled that you violated the plaintiff’s copyrights”, as you assert, how is it there is still an avenue (however slim) for Axanar to win the case outright? For that matter, why didn’t he then just go ahead and approve the plaintiff’s motion for partial summary judgement?

      1. The judge hasn’t actually address the copyrights yet, remember this isn’t a trademark case it’s not one big copyright were talking about but dozens of individual works, all the cbsp supporters are right in that if this was a trademark case it would be over already one way or the other, because a) Axanar is obviously infringing on the startrek trademark but, b) trademarks must be vigorously enforced so trying to put that genie back in the bottle might not be possible for cbsp. On this copyright case however the only thing the judge has ruled on is that Axanar does not fit the criteria of fair use. He has not ruled on guilt and is leaving that for a jury to decide. Axanar can still challenge each individual copyright infringement dragging the case out forcing the jury to decide on a number of factors for each case. whether the claimed material is copyright-able if it was not already registered, whether enough of the copyrighted material was use to warrant infringement, whether the infringement was willful with maligned intent. I am confident that most if not all of the allegations will fail at one point or another. Leaving a final judgement that will be more embarrassing than frightening. However it does set a future precedent that will make non-willfull infringement much harder to claim. We can only hope that wiser hands steer the franchise in the future. Because if Axanar is proof of anything its that the current regime has no idea what their doing or what fans want from the franchise.

      2. From page 7 of the Judges ruling:

        “Accordingly, the Court finds that Defendants use copyright-protected elements in the Axanar Works.”

        That pretty clearly states that he’s found that Axanar has violated copyright Davey.

          1. Do you honestly think a jury will find that Prelude and the Vulcan scene doesn’t look like Trek? If it looks like Trek to fans it will certainly look like Trek to lay people. That’s a pretty slim straw to be grasping at.

          3. Awwww, and I just saw the Defence list of Expert witnesses and you don’t seem to be on it. I guess I was right in saying that you didn’t fit the requirements since you prejudiced yourself. You have my condolences.

          4. Actually, one of my legal eagles explained to me last week that I was a fact witness, not an expert witness. I posted that in a comment shortly before New Years, but I guess you didn’t read it (there’s LOTS of comments–that wasn’t meant as a dig). But yeah, I’m just a lowly fact witness. It means I just give facts, not opinions…which is fine. It’s a fact that I’ve viewed more than 100 Star Trek fan films online. That’s all they really need me to say on the stand (which is fine, as I pick up my son at 3:00pm).

        2. You ain’t family, Curly. Don’t call me Davey……

          Saying they used copyright-protectable elements isn’t the same as they “violated copyright”, particularly when he’s leaving the intrinsic test of “substantial similarity” to a jury.

          So, nice try, but still wrong (as usual…..)

  3. OK, Jonathan, it looks like Judge Klausner is using your notebook as a reference, so it may all boil down to your testimony if Alec was ‘willfully’ infringing or not. (No pressure! But for Alec’s sake, please don’t blow it. 🙂 )

    It’s disappointing that the Judge ruled that an unshot script that no one will see ‘infringes,’ but that’s the way the cookie crumbles.

    Best of luck to all at the trial in February!

  4. I still can’t get over the surrealness of seeing them cite the FASA materials after so many years of it being called “false-canon”. The judge may be a Trekkie, but he sure isn’t a Treknologist!

    1. It will be interesting, though, to see how he rules about admitting the FASA evidence. If he rules not to admit it, it calls his judgment (based partially on the FASA supplement) into question. If he rules to admit it, then there’s certainly grounds for an appeal right there.

  5. To be honest, I think the real issue is whether the infringement is willful or not. The other issue, whether the works are subjectively substantially similar, is pretty much a done deal. Whether we like it or not, any reasonable person who have seen some star trek and prelude, or just read the Axanar kick-starter page cannot disagree that Axanar invokes Star Trek. In fact, that is the whole point of Axanar.

    But even if the jury finds the infringement not to be willful, subjective substantial similarity will lead to “plaintiffs must motion the Court for such relief if the jury finds subjective substantial
    similarity. ”

    … so that probably means that if the infringement is non-willful will only save Alec but Axanar will never be made. Well .. at least I enjoyed Prelude.

    2. The wilfulness will determine the level of damages awarded. With the vast amount of evidence showing that Alec fully intended to make “the best Trek film ever” it will be pretty surprising if the jury finds it non-wilful.

        1. I think that counsel for the plaintiffs will argue to the jury that Peters’ infringement was, as we say, knowing and willful. He admitted as much when he claimed that Axanar was less infringing than other fan films. He also sought to mitigate them when he approached CBS. If they can convince the jury that Peter knew he was infringing, then they don’t have to prove that there was reckless disregard or willful blindness. The plaintiffs only need to convince a jury of one or the other, not both. Further, it can be argued that there is a UUGE difference between that and simply choosing to not litigate smaller infringers. A finding that Peters was unknowingly infringing would force all IP owners into aggressively enforcing their rights, something not currently required to maintain them.

          1. Just a quick reminder of what Judge Klausner said:

            Here, Star Trek has a long history of fan films that stayed free from copyright disputes. (Lane Decl. Ex. 1, ECF No. 75-26.) Although Peters repeatedly stated that the Axanar Works were not to be called fan films, Defendants assert that this statement was made only to distinguish the quality of the Axanar Works. Thus, Peters’ belief that the Axanar Works were noncommercial fan films in light of his understanding from CBS that it would tolerate such films creates an issue of his state of mind that must be adjudicated by the jury. Furthermore, before creating the Axanar Works, Peters sent several emails to CBS to report third parties whom he believed were using Star Trek intellectual property without authorization. Viewed in the light most favorable to the nonmovant Defendants, Peters’ actions demonstrate a respect for Plaintiffs’ intellectual property that makes a finding of willfulness on summary judgement inappropriate.

        2. The judge didn’t get that wrong, the Judge rightly pointed out that,

          ““A determination of willfulness requires an assessment of a defendant’s state of mind. Questions involving a person’s state of mind are generally factual issues inappropriate for resolution by summary judgment.” Friedman, 833 F.3d at 1186 (internal quotation marks and alteration omitted).”

          His comments about Peters’ actions could be viewed in the most favorable light, are just that… It’s a question for the Jury to decide in a trial, not a Judge to answer on a Motion to a Summary Judgement…

          1. True, it’s not the judge’s call to make. But he seems to feel that the arguments in favor of a finding of non-willful infringement are certainly valid ones.

          2. You are putting words in his mouth that aren’t there Jonathan. Reread the ruling, he said if you look at Peters actions in the best possible light…. Or in other words give Peters the benefit of the doubt… and because the average person might, that’s why it’s an issue for the Jury…

  6. I’m sorry, but given all teh evidence – and assuming at the end of the Trial Alec Peters/Axanar receive a judgement against then and a hefty Damage award to CBS/Paramount; IF Erin Ranahan stays on and W&S attempt an appeal – her ‘Appeals Record’ will become 5-1.

    This isn’t a sporting event folks. The Law is the Law. And CBS/Paramount (given the totality of Alec Peters actions in the situation) is 100% on CBS/Paramount’s side. Am Appeal isn’t a re-trying of the case – the Appeals court will go over the court record. If they found Judge Klausner made a mistake or a ruling not supported by law they may do something – but so far is rulings have been rock-solid and well supported by law.

  7. Just for understanding:
    Would it be possible to get a verdict like : one count of non-willfull infringement on last years locked script since Axanar, in this format only, is substantial similar to the Star Trek works are only taken in their entirety (leaving out the arguments for non-willfull). Meanining the jury can’t determine that single elements are substantial similar, but if Star Trek is viewed as one work you can see this similarity.

    I’m aware there is a pretty slim chance for such a verdict but it would be interessting non the less

    1. I think if any violations are found to be non-willful, they all will be. After all, non-willful infringement is based on Alec’s mind-set. Did he believe the studios were not going to sue him for Prelude but they were going to sue him for the full feature? If so, when did his mind chance, and what caused that reassessment?

      No, I think this is an all willful or all non-willful scenario…unless something very strange happens in that jury room.

  8. i do not get the issue with the FASA content. True…from a current continiuty perspective it is out of canon…but it is still their copyrighted content.

    just because disney has declaredbthe EU noncannon…does not make it public domain open season for others to use freely.

    1. There was a deadline to introduce the FASA content as part of the case. The plaintiffs missed the deadline. The judge didn’t seem to care about that rule, however. But hey, he’s the judge.

  9. It’s really difficult to tell if the judge’s latest ruling (on summary judgement) was good or bad for either party in this case. On the one hand, it looks bad for the defense but then it may also be grounds for appeal since he seems to have eliminated the fair use defense. But on the other hand, it looks really good for the plaintiff’s case of infringement.

    I don’t understand the rules of evidence so I don’t know if the judge considering the FASA material was proper or not. Nor do I understand if it is not proper, if it rises to the level of being further grounds for appeal. I understand why the plaintiffs want the FASA evidence included since it adds horsepower to the concept of ‘sufficiently delineated’ as far as Garth’s character is concerned. But that’s also the reason the defense doesn’t want it considered. But it is evidence. And it’s not like the defense needs time to depose it to determine what it will say in court. It’s just evidence. And since it is applicable, my gut tells me it should be considered because it is, in fact, licensed IP based directly on the plaintiffs’ IP.

    Seems to me, the judge’s decision hasn’t settled anything really since it could be overturned in whole or in part on appeal if it ever gets that far. Plus, the pressure is building for the plaintiffs since the longer this thing goes on, the more $$ it will cost them that they likely will never recover regardless of the outcome.

    From what I can tell, all that happened is that things just got allot more complicated for both sides and allot more expensive for one.

    1. The importance of having the evidence early enough to examine in discovery is not because you get to ask the evidence questions but rather because you can ask the WITNESSES about the evidence. The FASA supplement was introduced too late in the discovery process (after the deadline) to allow the defense time to ask folks like John Van Citters about it…possibly giving them grounds to challenge its relevance at trial. For example, they could have asked JVC if CBS or Paramount ever considered the FASA works canon prior to this trial. And if so, what can he point to supporting that statement? If not, then the defense has a way to minimize the relevance of the FASA evidence. But because they now don’t know what JVC will say about the supplement being canon when he’s on the witness stand, they run a risk even bringing it up during trial. (First rule of cross-examination: NEVER ask a witness a question unless you already know what his/her answer will be!)

      1. I still dont get why canon vs non-canon is a relevant argument though. Nothing to do with copyright ownership.

        I suppose defence could have had some contract questions on ownership…but I think the reason it was allowed was (other than timeliness) defence had no real arguments against allowing it in.

        If they really had wanted to, defence could have gotten in any relevant witnesses related to this content.

        1. Not gotten witnesses, Brian…questioned them. By the time the FASA supplement was declared in evidence, all the witnesses had been deposed. There was no time left to re-question them unless the judge ordered it with, like, three days left. And that wasn’t gonna happen.

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