Could the AXANAR LAWSUIT go all the way to the SUPREME COURT? (Part 2)

Yesterday I began taking you on a journey through 250 years of fair use in copyright law.  My information came primarily from this excellent 70-page article by University of South Carolina School of Law Professor Ned Snow: “Judges Playing Jury: Constitutional Conflicts in Deciding Fair Use on Summary Judgment.”

For more than two centuries, the determination of fair use in copyright infringement trials was left to juries to decide.  After all, the Seventh Amendment of the U.S. Constitution guarantees citizens the right to a jury trial in civil cases (like copyright infringement).  But sometime between the 1970s and 1990s, fair use suddenly and inexplicably switched to being a matter of law determined by judges before trial at summary judgment.

This just happened last Wednesday to Alec Peters in the AXANAR infringement lawsuit, as I explained in this recent blog entry.  Judge R. Gary Klausner ruled that, in his opinion, fair use was invalid in this particular case and could not be used as a defense during trial (taking away the primary path to victory for Alec Peters in this lawsuit).  Although Judge Klausner also provided his personal opinion that Axanar was substantially similar to Star Trek, in that matter, at least, he chose to let the jury decide the ultimate question of whether there is substantial similarity.  But on fair use, his opinion also became a court order and took that decision entirely out of the hands of the jury.

Two days ago, I told you that this ruling by Judge Klausner gave Team Axanar valid grounds to request an appellate review of the case to the Ninth Circuit Court of Appeals.  But as I said, judges invalidating fair use before trial is now a commonly accepted practice in federal courts throughout America, and has been for three decades.  There’s a fairly decent chance that Alec Peters’ appeal will be denied at the federal level.  And that leaves only one more stop on the train…

The Supreme Court of the United States.

But why would the high court even care about this case?  It’s a frickin’ Star Trek fan film!  And even if Team Axanar is upset about not getting to use its fair use defense at trial, why would a case like this get to be one of the 2% of the 7,000 hopeful cases each year that the nine Justices agree to hear?

Well, it wouldn’t be the first time.

The Supreme Court actually cares about cases like this one…or at least it did back in 1998 when the justices heard a copyright case (Feltner v. Columbia Pictures Television, Inc.) and ruled there was a Seventh Amendment violation when a decision was issued at summary judgment rather than being put before a jury.  Here’s what happened…

C. Elvin Felter owned three TV stations and ran episodes of several television series owned by Columbia Pictures, which he licensed.  But then he became delinquent on his license payments and kept airing the shows anyway.  The trial court ruled that Felter and some other named defendants were liable for infringement, so Felter petitioned the court for a jury trial to determine statutory damages.  The court refused his request, instead arbitrarily setting statutory damages at $20,000 for each of the 440 times his stations aired episodes after he lost his license.  That’s $8.8 million dollars folks…OUCH!

Felter appealed to the Supreme Court, arguing that the denial at summary judgment violated his Seventh Amendment right to a jury.  Justice Clarence Thomas wrote for an eight-member unambitious majority (with a concurrence by Justice Antonin Scalia) that courts were violating the Seventh Amendment in determining damages awards in copyright cases without a jury.

Well, who cares?  Alec Peters isn’t complaining about statutory damages; he’s complaining about fair use…totally different things, right?

Let me turn the virtual microphone over to Professor Ned Snow to explain the problem…

Feltner’s holding as to statutory damages in copyright actions strongly suggests that the Seventh Amendment also requires jury consideration of the fair use issue.  Like the issue of statutory damages, fair use represents an issue that determines whether copyright holders may exercise their legal rights.  But unlike the issue of statutory damages, fair use is more fundamental to the legal right of copyright.  That is, the issue of statutory damages arises only after the scope of a copyright holder’s right has been determined, or in other words, only after a defendant’s liability has been determined . By contrast, the issue of fair use arises during the very process of determining the scope of a copyright holder’s right, or in other words, it is the very basis for determining liability.  Therefore, if the Supreme Court views the issue of statutory damages as subject to a jury trial under the Seventh Amendment, then certainly the Supreme Court must view the issue of fair use likewise, for the latter issue is more fundamental to the exercise of a copyright holder’s legal rights.

Short form translation: if the Supreme Court thinks statutory damages should be considered by a jury, then fair use is even more deserving of Seventh Amendment protection!

Back to the professor…

If a judge resolves fair use issues as a matter of law on summary judgment, one person’s life experiences control the relevant cultural standard of fairness; if a jury resolves those issues at trial, a plurality of life experience controls that standard, and such a plurality more likely reflects the views of society.

And that’s what the Seventh Amendment is all about: the views of society and not just a single guy wearing a black robe at work each day.  (Do YOU wear a black robe at work each day?  Didn’t think so!)  And that’s why fair use spent more than 200 years being determined by juries and not judges.  But then–BAM!–suddenly the judges are in charge of it.  And was there any particular reason given for this change?  Apparently not…

[T]his change in the classification of the inferences arose without deliberation or reasoned analysis.  Neither courts nor scholars have ever provided any basis for changing the classification of these inferences from factual to legal.  The change simply occurred. Overnight and without consideration, courts discarded the centuries-old method for deciding fair use — the jury — as they relabeled factual inferences to be conclusions of law.

So it’s not just a question of whether Alec Peters got a jury trial.  It’s a question of whether he was afforded a jury to consider his fair use defense.  Indeed, by completely removing the jury from the fair use equation, not only is Alec Peters’ Seventh Amendment right to a jury trial being removed, so is full consideration of his First Amendment right to free speech.  Last quote from Professor Snow…

A risk therefore exists that summary judgment will foreclose a fair user from realizing an otherwise meritorious defense. Given the speech nature of fair use, this risk represents a threat to constitutionally protected speech.  By failing to recognize an inference in the fair use analysis, a judge fails to recognize the possibility that speech is protected. A judge who disposes of a fair use argument on summary judgment necessarily ignores the wide disparity of opinion that arises in the factfinding process of the fair use analysis, and in so doing, the judge may impose liability on protected speech.

Ya hear that, Klausner?

Anyway, I’ve just saved you having to read a 70-page law review article.  You’re welcome.  (But you really should look it over if you want to understand the full implications of this fascinating issue of judges rendering fair use rulings.)

So where does this leave Axanar?  Well, I freely admit that there’s no guarantee that this case will ever reach the Supreme Court.  However, Professor Snow’s impassioned arguments at least call attention to the national merit of such an issue.  In other words, it’s not ridiculous (after reading what I’ve just written) for someone to say that Paramount Pictures Corporation et al v. Axanar Productions, Inc. et al merits the attention of a Supreme Court hearing.  After all, the question of whether or not judges deciding fair use violates Seventh Amendment rights to a jury trial could affect countless cases in the future.

And remember, the Supreme Court can’t, on a whim, take aim at bad laws or judicial procedures and arbitrarily invalidate them.  A case first needs to be brought before the high court before it can rule on any specific issue.

So Axanar represents a unique opportunity for the Supreme Court to weigh in on this relatively recent trend of judges hijacking fair use rulings from juries after 200 years of legal precedent.  As the Vulcans say, “Only Nixon could go to China.”  And perhaps only Axanar can go to the Supreme Court.

But why only Axanar?

Because first you need a copyright infringement case where a judge has invalidated a fair use defense at the summary judgment stage, removing it from jury consideration.  That allows the Supreme Court to look into the matter and rule on it.

Second, you need someone who can afford to keep a case going long enough to take it all the way to the Supreme Court without going broke.  Alec has a top law firm willing to continue his appeals pro bono as long as they need to.  So the money won’t run out.

Third, you need someone patient enough to stay with a case for years.  Alec is in no rush.  His only chance to actually make Axanar happens (assuming he loses at trial next month) is if his appeal works, he gets a new trial, and earns a winning verdict from the next jury on fair use.  But there’s no ticking clock on this.  The studio lease runs out in December of this year (long before an appeal to the Ninth Circuit could ever happen).  So Alec either keeps the studio running by renting it out or gets a new studio later on if his wins in four or five more years.

Now, will CBS and Paramount want to be dragged all the way to the Supreme Court?  That I can’t tell you.  But understand that the nine justices (by then, I assume we’ll be back to nine) will not be ruling on whether Axanar infringed on or copied Star Trek.  If you’re expecting them to say, “Yes, this was fair use,” or “Forget it, Peters, you copied Star Trek,” don’t hold your breath.

Instead the high court will simply decide if Judge Klaunser was improperly applying the law when he ruled fair use invalid to attempt as a defense at trial.  If the Supreme Court says he goofed, then they can order a new trial, and we’re back where to we are right now…only with a new jury being seated to hear the case again but this time with the fair use defense in play.

And after all of this, Alec could still lose the new trial, too!  There, I said it.

Yeah, it sounds like a lot of time and hassle just to make sure Axanar never gets made.  But it’s Alec’s dream, and it’s certainly worth the shot…or so he told me when I mentioned I was writing this blog.  Y’see, I wasn’t gonna spend the time reading 70 pages of legalese and researching dozens of law websites and Wikipedia entries if Alec was just gonna tell me, “Aw, I don’t need to take this case all the way to the Supreme Court.  That’s crazy!”

But no, he’s actually excited to read this blog and said he’ll take this case as far as he needs it to go.  He’s got nothing to lose at this point.

As for his legal team, well, many lawyers dream of one day climbing the steps of the Supreme Court in Washington, DC and arguing a case in front of the nine justices (even though they interrupt constantly!).  In fact, the one lawyer I ever knew who did argue a case in front of the high court (coincidentally also an intellectual property attorney) said it was one of the high points of her career.  So I wouldn’t expect Winston & Strawn to suddenly bail out of this case either.

That leaves CBS and Paramount.  And what they’re thinking, I have no idea.  But for me, even if Alec Peters ultimately loses, I just think it would be the coolest thing in the galaxy if a case about a Star Trek fan film actually makes it all the way to the Supreme Court!

105 thoughts on “Could the AXANAR LAWSUIT go all the way to the SUPREME COURT? (Part 2)”

  1. Well, first my appologie`s for my bad (written) english-skills (especially with this ` little thing…)

    Secondly would that be another of those things I do expect of REAL StarTrek.
    To make a difference, start something new and change the perspective. Or at least start a discussion about it.

    Even if Mr. Peters at last looses his dream of making Axanar; IF he realiy make this a case before the US-Supreme Court, it is STAR TREK!
    (And thereby a 1000 times better than this apocalyptic, military gouvernmented, illogical and timeline-nightmares (plural!!!) CBS and Paramount are responsible for)

  2. Yeah, the summary judgement on fair use was by far the most surprising part of the ruling to me. I had expected that it would be left up to the jury, as there are complicated issues of fact to be determined to decide fair use. (That’s not to say the judge doesn’t get to have some input on instructing a jury on that sort of thing, but I was surprised at how agressively he shut down the argument for fair use in a summary judgement)

    I was also pretty surprised at the conclusion that indirect profit still counts as profit, as it seems to me to allow very broad room to infringe upon your first amendment. Does reproducing part of a work as criticism count as non-commercial if you’re paid to write a review column? What if you write a blog that also promotes your commercial work and provide free criticism there? Indirect gain through publicity basically gives a judge the room to torpedo any claim of fair use they want to, so I’m really curious to hear whether the defense will be considering that too if they do appeal, as while I don’t factually disagree with anything Judge Klausner said as evidence in coming to his conclusion, it does seem to be a very dangerous doctrine to hold that personal gain through self-promotion is “profit” in terms of fair use rights.

    There is a narrow possibility of course that the jury will rule against substantial similarity, perhaps listening to Erin’s arguments that the infringements Axanar has made are largely upon protected elements that aren’t copyrightable, but it will definitely be a less interesting case with fair use thrown out the window. I’m glad to hear Alec intends to appeal if the jury doesn’t go his way with the intent to get a hearing on fair use. Even if a jury disagrees that Axanar is fair use, it’s a case that deserves to be heard IMO.

    2. I don’t think you need “profits” for something to count as commercial. I think you only need “revenue” .. which donation is just a different name for it.

      If I run a restaurant and lose money, it is still a commercial enterprise .. a bad one perhaps, but one nevertheless.

      It is hard to argue a venture is not commercial when a) money is taken, and b) deals are explored (is it in dispute that Alec talked to Netflex?) which shows an intent to make money.

      1. Just because you have revenue does not mean you have profits, Narius. Back in 1999, when my brother and I sold our Internet development firm during the dot-com bubble, we had $1 million dollars a year in revenue coming in. We also had $1.2 million in expenses. LOTS of revenue! ZERO profit. In fact, negative profit. Thank heaven someone bought us!

        1. Sure. But the point is that you do not need to make a profit to show that an enterprise is commercial. A commercial business can lose money and is still commercial.

    3. It seems to me that newspapers could potentially be targeted over a review column especially since they profit directly.

  3. “(by then, I assume we’ll be back to nine) ”

    Iam guessing you will be down to 5 or 6 by then… 😉

    1. I just found this on the History Channel website:

      “The U.S. Constitution established the Supreme Court but left it to Congress to decide how many justices should make up the court. The Judiciary Act of 1789 set the number at six: a chief justice and five associate justices. In 1807, Congress increased the number of justices to seven; in 1837, the number was bumped up to nine; and in 1863, it rose to 10. In 1866, Congress passed the Judicial Circuits Act, which shrank the number of justices back down to seven and prevented President Andrew Johnson from appointing anyone new to the court. Three years later, in 1869, Congress raised the number of justices to nine, where it has stood ever since. In 1937, in an effort to create a court more friendly to his New Deal programs, President Franklin Roosevelt attempted to convince Congress to pass legislation that would allow a new justice to be added to the court—for a total of up to 15 members—for every justice over 70 who opted not to retire. Congress didn’t go for FDR’s plan.”

  5. Hahahahaha! Thanks mate, I needed a good laugh. You are completely delusional. Not one thing that you or your “legal eagle” (who is clearly too embarrassed to be named) has predicted had come to pass, and this won’t either.

    1. I wouldn’t be so sure. The judge agreed with me on non-willful infringement being a possibility. The detractors were pretty adamant that is was clearly willful. Even if I end up being wrong on everything else–no appeal, huge jury verdict, denied as a witness–at least I have that one thing. So no regrets, mate. 🙂

      1. No, the Judge didn’t agree with you on non-wilful infringement, he’s left wilfulness up to the jury to decide.

  7. Ya know, now that were talking about a long drawn out 5 year case I wonder if cbsp thought this would be a much shorter battle. Send some threatening letters and poof this annoying axanar thing goes away. I doubt anyone was thinking supreme court and a 5 year trial way back when, I wonder if they had properly sized up Alec and the potential legal battle if they might have approached the situation differently.

          2. Nah!! Jonathan. I think that warm feeling that CBS/P has inside is a giant case of heartburn!!! I wonder if Lobe and Lobe is the one that’s going to feel the heat!!!

  8. “I just think it would be the coolest thing in the galaxy if a case about a Star Trek fan film actually makes it all the way to the Supreme Court!” – That’s my feeling as well. And I’m feeling that “revenge is a dish best served” by losing a legal case after foolishly wasting millions of dollars.

    Of course if would also be fine with me if CBS/P had an attack of sanity and cut a decent deal but I spent too many years working in corporate America to believe in attacks of sanity. I suspect that to cut a deal would mean some executive would think that would be a sign of weakness – to admit that he did the wrong thing earlier – and that can never be.

    On the other hand, there’s a slim chance that an exec could now claim victory because of the judge’s ruling and cut a deal, but sensible behavior on the part of human beings let alone corporate executives is almost as rare as unicorn sightings.

    1. I don’t see that from the link you sent. Alec was seeking a jury determination of the facts. He was denied that. His appeal will (likely) be simply that he was denied the opportunity to present that defense to a jury. Whether or not the appeals court believes it was or was not fair use will likely not even be considered by the appellate judges. (It’s possible, just not likely.) Instead, they will look solely at the question was Judge Klausner misapplying the law when he decided to rule on the validity of fair use himself rather than letting a jury reach that conclusion.

    1. Did you read that one–including the comments? Professor Ned Snow responds strongly and convincingly to all the points raised by both the author and two commentators. I recommend you carefully read all of Professor Snow’s well-written responses, but for me, this was the most salient one:

      This criticism goes to the heart of the matter. Do we want a vague uncertain doctrine or a bright-line clear doctrine? I vote the former, and here is why: from its inception, fair use has been designed to fit all situations where speech rights outweigh copyright’s interest in suppressing another’s repetition of expression. To ensure proper speech protection, fair use is entirely flexible to meet the demands of disparate and variant circumstances under which it might apply. Fair use necessarily lies in grey to protect the strong speech interest at stake. With flexibility, however, comes uncertainty. The doctrine must be uncertain to be flexible. So although the four factors should be given as jury instructions to help guide the jurors’ analysis, not much more than that is advisable. By adding more brightline legal rules, the flexibility begins to diminish greatly. As courts create hard and fast rules, the grey becomes black and white, and many situations may not be contemplated by black-and-white rules; speech suffers. So, leaving it to the jury enables fair use to fit all situations; keeps it in the grey; protects speech.

      Does this preclude appellate review of a jury decision finding the use to be fair? Not necessarily. It will depend on the doctrine of independent review—a subject for another article.

      This one is also important to read:

      Fair use represents the sole means for many defendants to realize their right of speech. Moreover, it represents a purposefully indeterminate doctrine, which gives rise to great subjectivity in its application. These facts set fair use apart from other cases where judges rightly keep fact issues from juries. Specifically, the subjective nature of fair use issues makes unreliable a judge’s conception of what a reasonable jury would consider to be fair. The single judge may not recognize the speech value (i.e., the fairness) underlying the use that a twelve-member jury would recognize. And given that fair use cases are speech cases, we cannot risk not getting it right. Fair use cases are indeed special.

  11. And one last one that Carlos posted. It’s about the Snow article you’re placing so much stock in.

    “Finally, here’s an article critical of the Snow piece on which Jonathan Lane relies so heavily. Note the following about Snow’s thesis:

    «Snow opposes the use of summary judgment to decide fair use (except, perhaps, where the defendant is the movant).»

    Guess what, Jonathan. The defendant WAS the movant. Axanar ASKED the judge to rule on fair use in summary judgment. So much for your Get Out of Jail Free card.

    Interestingly, Snow himself weighs in on the comments thread. The critique is well worth the read. http://copyrightsandcampaigns.blogspot.com/2009/08/article-criticizes-deciding-fair-use-on.html?m=1

    1. Thanks for posting this, Sandy, as I saw it on the CBS/PvA Facebook group and really wanted to respond. Unfortunately, the one friend I have in the group didn’t want to forward my response for fear of being “outed” and dealing with a lot of malice because of it. So by posting it here on FFF, I get the chance to respond (or rather, to let Professor Snow respond), as I’m sure one of the detractors will be considerate enough to screen cap it and post it for Carlos.

      So the criticism that Carlos brings up (that Alec asked for a ruling on fair use, too, and got one…just one that he didn’t like) was actually addressed in Professor Snow’s original article. Perhaps I should have included this snippet, as well, but I was trying for a shorter blog this time. That’ll teach me to be brief!

      Anyway, here’s the very convincing argument against Carlos’ point (at least convincing for me–all of you can be the jury and decide together):

      Judges have also reasoned that where both litigants move for summary judgment, summary judgment must be appropriate. That is simply not true. Even if both litigants move for summary judgment, this fact does not imply that either litigant has waived his right to a jury trial in the event that he loses the motion. In moving for summary judgment, a litigant waives his right to a jury trial on the condition that he win the motion.

      So although both litigants waive their respective rights to a jury trial where both litigants have moved for summary judgment, both their waivers are conditional on winning the motion. The prevailing litigant’s motion for summary judgment cannot effect a waiver of the losing party’s right to a jury trial. Judges, then, may not infer that both parties have unconditionally waived their jury right where both parties have moved for summary judgment. Both parties moving for summary judgment is different from both parties agreeing to a bench trial.

      So true!

      1. I for one, am glad Curly Boy is carrying the water for all these half-baked criticisms. It’s so much fun watching you shoot them down! ::munches popcorn::

        1. Legal experts and the 9th Circuit Court themselves are providing half-baked criticisms? Boy, you are and idiot.

          1. So what is I am and idiot? Doesn’t mean I’m wrong, dude.

            Oh, and calling me “and idiot”–despite the typo–is still an insult, Sandy. Consider yourself warned. Next direct insult to me or anyone gets the comment trashed. Them’s the rules.

          2. Actually, I think he called me an idiot.

            And from where I’m sitting, you play “gotcha” with your posts. You post something and completely ignore any responses, most of which range from coherent responses to outright exposition of the falsity of your assertions (I should know, since I’ve written some of them!). To me, not only do I find such behavior idiotic, it’s rude to boot.

            As for legal experts, try reading the article I linked to from the Washington Post below. I am fairly certain a law professor qualifies as a “legal expert”. Considering there is much debate in the legal community regarding the subject on which Professor Snow opines, perhaps it is a matter that should be taken up by the highest court in our land. And Axanar just might be the case to do it with. If you could get past your personal butthurt over the situation and actually think about that, you might just understand….

          4. “Boy, you are and idiot.” How ironic that someone manages to completely mess up the English whilst calling someone else an idiot.

          7. You mean “and idiot,” and it still counts as a direct insult to a person, and so I issued a warning to you, Sandy. Next comment with an insult gets thrown into the trash.

          8. Interesting how Curly Boy will only call me names (or clarify that’s he’s calling me a name), yet never engages me on the merits of the argument……

          10. Curly boy is Sandy’s internet handle. Therefore I don’t think it’s out of bounds to call him that since he called himself that publicly.

  12. Who was it who even asked the judge to rule on the 4 parts of Fair use? Was it CBS/Paramount? Or was it Axanar/Peters?

    It wasn’t CBS/Paramount. It was Alec and Axanar. This was ruled on, only because Alec’s lawyers put it in their motion for summary judgement. They wanted a summary judgement on those points. If they hadn’t have asked for that the judge wouldn’t have been able to rule against them.

    Here’s some more discussion about Professor Snow who you relied upon in your article.

    «Snow opposes the use of summary judgment to decide fair use (except, perhaps, where the defendant is the movant).»

    So yup, right there, this is the exception. This is the case where the defendant was the movant. They put it infront of the judge, he ruled now they’re upset he ruled on what they asked because he ruled against them.

    http://copyrightsandcampaigns.blogspot.com/2009/08/article-criticizes-deciding-fair-use-on.html?m=1

    1. See the response I just posted to Sandy’s substantially similar comment. As Professor Snow explains, there is no assumption of unconditional waiver to a jury trial given in making the request for a judge to rule on fair use at summary judgment. The waiver only applies if the party wins the motion. If they lose the motion, they can still request a review by jury. The Seventh Amendment trumps all legal procedure. Unless a citizen specifically says, “I waive my right to a jury trial,” the right persists. Asking for a summary judgment ruling never makes such a statement, either explicitly or implied, by the defendant.

  13. Let’s play devil’s advocate. You said “But as I said, judges invalidating fair use before trial is now a commonly accepted practice in federal courts throughout America, and has been for three decades.”

    So it is a commonly accepted practice. Note that the supreme court has never stepped in on this issue, and there was 30 years worth of opportunities to do so.

    Secondly, the 7th amendment said “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

    It does not specific state any or all of the issues needed to be decided by a jury. A jury is deciding on SOME of the issues in this case (in particular subjective substantial similarity & willful). So what is the violation here? Now the supreme may disagree with me, and said there is a violation eventually. But they have not done that in the past 30 years. What is the reason to do this now?

    In addition, “and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States”. So if Alec lost, Axanar is determined by the jury to be “substantial similar”. In this case, the court may find that allowing a fair-use trial again is moot because the chance of a successful defense is nil .. anyway.

    In fact, even if Alec wins all the way to the supreme court, given that Axanar would have been found “substantially similar”, the chance of winning a new fair use trial will be even smaller. The chance of Axanar will be made is diminishing small. Obviously Alec would just soldier on and put on a brave face today. But will someone tie down their career and life to fight a law suit instead of moving on? I don’t know. Time will tell. Personally, i won’t. Alec showed some talent in making sci-fi … if a deal comes around to make something else professionally, do you think he will stick around to continue to fight just on the very small chance that he will prevail and make Axanar?

    1. Well, having spoken with Alec, I can tell you the following. 1) He very much wants to make Axanar. 2) His life and career don’t depend on it. 3) He has some other very intriguing and exciting plans that I’m guessing I’m not allowed to talk about or else he would have already made an announcement. But when he does, I’ll be sure to say, “Yeah, that’s what I couldn’t tell you about back in January.” 4) He can do those things while the Axanar lawsuit makes its way through the legal system. And if he loses, he loses. It will be sad for us donors that the full movie can never be made, but I knew going in that this was a risk. (Risk…risk is our business!)

      But to answer your question, yes, I think Alec will stick around to continue to fight just on the very small chance that he will prevail and make Axanar. After all, what reason does he have not to? It’s not stopping him from doing other things. The only choice Alec Peters needs to make is whether to get on with his life, declare defeat in the lawsuit, and never make Axanar…versus get on with his life, continue to fight this lawsuit in the background, and have at least a chance to make Axanar. I’d say take the chance. If a doctor said I had a choice between certain death and a treatment that had only a 5% chance of working, all other things being equal, I’d try the treatment. As I said, risk is our business!

  14. Johnathan lane wrote:
    ——————
    “Second, you need someone who can afford to keep a case going long enough to take it all the way to the Supreme Court without going broke. Alec has a top law firm willing to continue his appeals pro bono as long as they need to. So the money won’t run out.”
    ^^^
    Unless Alec Peters and Axanar are continuing to take in (and not report) pledges/donations at this point; they could VERY WELL run out of money. Yes, Axanar productions and Alec Peters are getting the lawyers hourly fee waived via Pro Bono representatilon; but EVERYTHING ELSE including:
    – Filing Fees (which add up)

    – Court Document copy fees (usualy 50 cents per page or higher)

    – Travel Costs (IE if they need to go to another part of California or the U.S. to appear.)

    – Discovery costs (Court Reporters do not take or provide copies of transcripts for free.) Nor are Teleconferences done free of charge.

    – Trial costs as oftentimes Civil cases, depending on the court district, the Plaintiff and Defendants are co-responsible to pay for a Court Reporter and other costs during a Trial. And often the loosing side bears the FULL cost of this once the trial is over. In Criminal cases the state pays for that stuff because someone’s Freedom is on the line – but for Civil cases the state wants to be reimbursed by someone for a variety of trial costs.

    So yes, while pro Bono representation takes care of the Lawyers (Firms) hours working on the case (that would normally be billed to the client and can range anywhere from a low of $250.00/hr. to a couple thousand and hour (depending on the lawyer/firm); Axanar Productions and Alec Peters are still on the hook for all the other costs described above. So, the continuing litigation in this case is hardly ‘free’ for either side; and these costs will continue through the appeals process if/when either side decides to appeal.

    1. – Filing fees are minor from this point on.
      – Court documents are now filed electronically, so copy fees are minor.
      – Travel costs are minor for appeal, as no one actually has to go anywhere (except Pasadena if there’s an in-person hearing–there often isn’t–and Erin Ranahan is based in L.A.) and possibly Washington, DC if this trial does get tot he Supreme Court. And if that happens, I will donate my frequent flyer miles for Erin to fly to DC first class. 🙂
      – Discovery costs are not applicable to appeal…no witnesses, no new evidence.
      – Court reporters will only be necessary if the Ninth Circuit Appeals Court hears oral arguments. Not sure if the U.S. government picks up the cost of the reporter in the Supreme Court. That’s kinda part of their annual budget, isn’t it?

      So at this point, as happened with Axanar itself, Alec has already paid the costs for most of this case. If he loses, the costs of proceeding further through multiple appeals are minimal in comparison.

  15. Every day I read something new about Axanar I become more and more convinced CBS/Paramount bit off more than they can chew. Hope Led Moonves’ ego can take the beating.

    1. I’m not sure this case is even on Les’ radar, to be honest. He oversees a LOT. And even though the legal fees are reaching the million dollar mark, there are shows with budgets five or ten times that…per episode! Don’t worry about Les Moonves. 🙂

      1. Jonathan, if the case isn’t on Les’ radar now, it will probably a shock to him if it pops up in SCOTUS. Talk about popping up on his radar!!! What a shock that would be!!!!

  17. I wonder how the shareholders are feeling about all the money being spent on this. We say that CBS/Paramount does not mind spending the money but that is only the executives. I am sure the shareholders have a different view.

    1. They’ll likely barely notice. As I said, there are CBS shows with annual budgets in the tens of millions or even a hundred million dollars. Star Trek Beyond Cost Paramount $350 million to make and market. If they tell shareholders, “Well, it’s actually $351 million if you count the minor lawsuit to protect the intellectual property of the franchise from infringement,” I doubt they’ll bat an eyelash.

  18. I felt the situation was pretty hopeless when the ruling first came down, but having read your blog about the possibilities, I realise I was being premature. I can’t imagine CBS/P would want to go all the way to the Supreme Court with this, unless they’re even more stupid than I thought. They are already the poster children for an industry which can’t adapt to this strange new world the internet has created.

    1. Actually, if CBS is even reading my blog (spoiler alert: they’re not), I doubt they’ll think me a legal Nostradamus with my prediction of this case reaching the Supreme Court. In other words, I doubt I’m making the studios or Loeb & Loeb quake in their loafers. I just enjoy the art of analysis and conjecture. Granted, it’s conjecture grounded in realistic possibility, but it’s conjecture nonetheless. Such conjecture of wondering “what if” got planes in the air and man onto the moon. In other words, yeah, Jon’s pretty full of himself right now. 😉

      (Actually, I am now officially totally exhausted! I’ve received 52 comments since I went to bed last night (this morning) at 2am, when the number of pending comments was down to zero. I woke up, it was 12. By noon, it was 30. I still have eleven more after this one, and I’m starting to think about dinner and sleep…not necessarily in that order!)

      1. Jezz Jono.You can do only so much.Make sure to take care of yourself Mate.LOL.Get some rest..

        1. I stay up late in order to take Jayden to pee in the potty in the middle of the night so he doesn’t wet his bed. It’s easier to push through until 1 or 2am than to set an alarm and wake up both Wendy and me (although Wendy’s still up right now; she just finished a business call with someone in Abu Dhabi. But I think she’s headed for bed. I might go upstairs a little early tonight myself. Tomorrow’s blog (non-Axanar!) is already written. And I’m totally knackered (as my British fans like Sandy might say!). 🙂

      2. I understand Axanar may not get that far and could still lose if it does, but there’s more hope than I first realised.

        Make sure you get enough rest. I doubt you’ll find too many people complaining if that means our comments don’t get approved so fast.

  20. Jonathan you missed the point entirely. Alec asked for a ruling on summary judgement on 4 points of Fair Use which the judge applied and found it did not pass muster due in fact because there are way to many instances of substantial similarities to copyrighted material that Axanar used and that was documented. Even if Alec used single entities that can’t copyrighted those entities combined together are copyrighted. Yes, I know you covered this already but again you are misinterpreting it. Another thing is Alec has not been denied trial by jury which is essential what the 7th Amendment is. His Fair Use defense was tossed out because it did not pass muster to survive.

    1. And the point is that he never waived his right to fair use at trial simply by asking for summary judgment on it. (See my reply to Sandy Greenberg with Professor Snow’s explanation of that.) If you read Snow’s entire article (or even my short summary of it), you can hopefully see that what the judge thinks does not necessarily represent the view of the greater society as a whole. It could…or perhaps it could not. Juries at least spread out life experiences beyond that of a single person with a law degree…which is what the Founding Fathers wanted. Alec is being deprived of that wider societal erspective by removing the core of his defense of another constitutional right, free speech, based on the opinion of just one man. While there’s no guarantee the argument about violating the Seventh Amendment will convince judges on the appellate level or higher to remand the case back tot he district court, it’s at least a valid concern to bring up (as opposed to a complaint without any legal merit).

      1. Jonathan, I really think you should go back over everything Alec has said about Axanar in regard to IP infringement over the last two years. Alec’s own words are coming back to bite him. In interviews and in podcast Alec freely admits he has infringed on CBS/P Star Trek copyright with the excuse, “so has everyone else”, which is a piss poor excuse where he admits he has in fact “willfully infringed” on copyrights more than any other. Alec kept insisting he was NOT making a fan film but a professional production where as others like Vic and James never crossed that line and kept their productions as FAN FILMS. Alec’s defense was denied since this is not a case of Fair Use when there are to many substantial similarities of copied works where Alec is indeed infringing on CBS/P copyrights but left that up to the jury to decide. There is nothing unique or unusual about it when the evidence is overwhelmingly against Alec.

        Fair Use defense goes out the window.

        1. Considering that Kudge Klausner granted the defense’s in limine motion to exclude evidence regarding the quality of the production (which speaks to the use of professionals) pretty much blows up what you’re trying to say, Rand. But, seeing as you are wont to just repeat what you’ve been told, and not think for yourself, you’ll probably never realize it….

    1. He’s a former law clerk at the Supreme Court! And he agrees with me???? WOW!!!!

      Yeah, my head just swelled to the size of an SUV! Thanks for finding this, Dave? (Did you tell the CBS/PvAxanar detractors yet? They aren’t gonna like it!)

        1. Just checked…no mention of it there yet. (I think they’re in denial.) But Gabe Koerner did share my response (well, Professor Snow’s response) to Carlos Pedraza’s “gotcha” argument. You can tell by the comments which members bothered to read it and who’s there just to make insults. What do folks here think about “Lame Lips Lane” as my new nickname? Much more alliterative than “Slow Lane,” I’ll give them that. But not very deep thinkers, all things considered. One exception is Sharon Lowachee, who asked a very reasonable question. If someone wants to copy/paste for her, here’s the answer. Yes. Either side could appeal a fair use determination at summary judgment based on the fact that both plaintiff and defendant are entitled to Seventh Amendment protections. The point that both Pr. Snow and the former Supreme Court law clerk-turned-Washington-Post-legal-blogger are trying to make is that fair use should NOT be adjudicated at summary judgment. It spent 200 years as a matter for juries to decide. There was no reason ever given for the change to judges deciding. (Note: the real reason that no one talks about is that judges don’t trust juries to make the correct decisions.) So the two of them (and I) believe fair use should always be something for juries to decide.

          3. ” The point that both Pr. Snow and the former Supreme Court law clerk-turned-Washington-Post-legal-blogger are trying to make is that fair use should NOT be adjudicated at summary judgment.”

            and as you have pointed out in the blog, 30 years of case law said that it should. Is this argument ever raised at appeals in the past 30 years?

            Clearly not everyone agree with Dr. Snow and the law clerk.

          4. Supreme Court law clerk! He clerked for Justice Sandra Day O’Connor.

            I don’t know whether this argument is ever raised at appeal, but I have to say it’s an intriguing one. 200 years of precedent followed by an unchallenged judicial hijacking of a traditionally jury-trusted determination. Speaking as someone who is much more likely to someday serve as a juror than a judge, I personally resent the court taking the decision AWAY from juries.

            But we’ll see what happens. Alec has to 1) not settle, then 2) lose at trial, and 3) appeal to the Ninth Circuit before we see if this argument is even brought up by his legal team. THEN we can see how the appellate judges rule. That’s a LOT of steps on the way to me either being proven right or wrong. I can wait, though. There’s enough to keep me distracted. 🙂

  22. I applaud you Mr Lane. This is so professionally written. It’s direct, self-explanatory & informative. I like that ! And, believe it or not, I understood 99% of the ‘legal jargon’& that’s great for me. Anyway, saying, job very well done !
    #IstandbyAxanar
    #IstandBESIDEAlecPeters

    1. And…I’m awake again. Actually, I’ve already gotten Jayden up, dressed, fed, and driven to school, had a doctor’s appointment, and now I’m off to work with a client…

  24. Moving away from the whole, very passionate, legal debate raging on here for a second; I do wonder about one thing.

    What were to happen should Alec somewhere down the line get a win and is allowed to create Axanar? From my understanding a new kickstart campaign will need to be done in order to raise the funds to finish it. I believe last time we were at 1.2 million raised versus a need for 2 million. So that’d mean he’d need another 800.000. What if, because of this entire legal battle, the funds aren’t raised? Basicly I’m interested in an opinion on what was to be the situation if we do pull through with a win and possible outcomes there.

    I really have no stumach for politics, I’m just a fan who’d love to see this movie get made.

    Also, just a (quick) note to you personally Jonathan. First I’d like to thank you once again for writing all these blogs. It’s great to read and keep up with the entire battle raging. Even if I do think some things might be a little wishful thinking now and then (something I fully understand because as I said I too would love to see Axanar get made). Second, is there any chance of maybe adding an agenda or something on this website? I keep losing track of what is yet to come and going to Axamonitor’s timeline to see what’s next. Thirdly, I admire you for bothering to keep defending Axanar against the many negative voices I just saw above here at the comments. I mean that sincerely. I’d have given up on trying to convince people who are so set on their point of view long ago. Kudos to you for that.

    1. “I believe last time we were at 1.2 million raised versus a need for 2 million. So that’d mean he’d need another 800.000. What if, because of this entire legal battle, the funds aren’t raised? Basicly I’m interested in an opinion on what was to be the situation if we do pull through with a win and possible outcomes there.”

      The late Senator Ted Kennedy was once asked, when he ran for president in 1976, about what he’d say if asked about the accident at Chappaquiddick. His answer: “Er, we’ll, er, cross that bridge when we, er, come to it…um…hopefully.” (Yes, that’s a joke. And if you didn’t get it, it means you’re younger than 45.) 🙂

      In other words, let’s wait for Alec to win before we start mapping out future crowd-funding campaigns and budgets.

      “Second, is there any chance of maybe adding an agenda or something on this website? I keep losing track of what is yet to come and going to Axamonitor’s timeline to see what’s next.”

      If Axamonitor has it covered, then I’ll let Carlos have the monopoly on schedules. After all, he does it so well. 🙂

      “I admire you for bothering to keep defending Axanar against the many negative voices I just saw above here at the comments. I mean that sincerely. I’d have given up on trying to convince people who are so set on their point of view long ago. Kudos to you for that.”

      Well, thanks. Sometimes I need to give up on that, too. For example, I’m about to approve a post from Rand Johnson that offers nothing new or compelling. It’s just a rehashing of everything that’s been said a thousand times before (literally, probably a thousand times by people on the detractor pages…and in comments here). It’s not worth the effort to even respond to it because it’s the same old arguments and would therefore have the same old responses from me. I’ve got better things to do with my evening. So I’ll just approve the comment without responding. (You can see it elsewhere on this page…not sure where. It’ll be approved in another minute or two.)

      As for me generally defending Axanar, I see no reason not to. I believe in the project, and I believe in the people behind it. I think what CBS and Paramount did was wrong. If I believe in something, why shouldn’t I defend it? And anyway, there’s too many places online where Axanar detractors can all gather and chant in a group hate-in. I felt there needed to be a place that offered a warm seat and a cold beer to those who weren’t just looking to trounce the project and the people behind it. Sometimes you wanna go…where everybody knows you’re Lane! 🙂

      Cheers!

  25. BTW – I re-read both sides request for summary judgement – and the fact the Judge ruled that Axanar wasn’t entitled to a ‘Fair Use’ defense probably wouldn’t be overturned on appeal and possibly might be rejected if Axanar used that ruling as the basis for an appeal.

    Why?

    Because in the DEFENSE’S (aka Axanar’s legal team’s) motion for summary judgement – they SPECIFICALLY REQUESTED that Judge Klausner rule on their ‘Fair Use’ defense claim – and he did using the standard and proper legal tests to arrive at his ultimate conclusion. So yeah, if you really want to look at who to ‘blame’ for Judge Klausner ruling on that issue prior to Trial – blame Winston & Strawn (perhaps Erin Ranahan herself in consultation with Axanar’s ‘lawyer by training’.)

  26. Hi,
    Maybe I was tired reading so many articles and comments and did not get it, but I wonder what definition of commerce Judge Klausner used do decide Axanar is commercial. For what I know of it, the purpose of commerce is to buy and sell something. But Axanar (as Prelude) is not and has never been meant to be pay per view. Neither the Prelude nor the Vulcan scene generated financial profits, So how does he come to the conclusion that Axanar is of commercial nature ? His considerations are probably not based on facts but on his beliefs and own interpretation.
    That is why such rulings must not be one-person decisions.
    And for the fact that Judges decide by themselves instead of a jury will probably be explained as a way to save time and money.

    Regards,
    Nicolas.

    1. Read Pr. Snow’s full article for the reasons judges took this decision away from juries. He lists the reasons and then provides reasons those assumptions are in error. It really is a well-written article.

    2. For Nicolas…Judge Clausner denied fair use because Alec Peters gained 1.4M dollars on the back of the Star Trek brand.
      Alec Peters created a film studio with this money.
      Alec Peters allegedly(as per plaintiffs report) paid personal insurance, fees, bought tires for his personal car, used the studio location for running at least on for profit business (propworx).

      1. Historically, Brian, juries have decided to allow fair use verdicts even when a defendant personally profited off of a commercial venture. In fact, most determinations of fair use involved personal profit of some kind on behalf of the defendant. Just thought you should know that.

  27. ‘What do folks here think about “Lame Lips Lane” as my new nickname? Much more alliterative than “Slow Lane,” I’ll give them that. But not very deep thinkers, all things considered.’

    Personally I like your understated reply, it has a delicate literary flavor.

    I’m also happy to let the trolls stay in their cage rather than rampage here.

  28. Another great article, or finished one anyways. Love the comments as always.

    I turned my Uber driver onto this website yesterday, and he loved it! It was funny, because, when I got into the car, he had Star Trek communicators velcroed to the dash, and I innocently asked him what all this stuff was, while waving my finger over them. Of course I knew, but he explained, and then I hit him with fan films, and this site. He got more & more excited as I explained the fan Film world, and just how much there was to it. I’m hopeful Micheal shows up here often, and enjoys it as much as I do. Thanks again Jonathan.

  29. Hi Jonathan,

    FOX just promoted a some newbie at Fox Entertainment Group’s EVP of Litigation. She’s a complete idiot. Tell Alec Peters the time is ripe to take over a FOX intellectual property and make some money. I’m going to make an independent Alien movie that will be far superior than that crap Alien Covenant that’s coming in a few months.

    Read it here

    http://deadline.com/2017/01/fox-promotes-litigation-specialist-jill-ratner-gary-roberts-retires-1201882801/

  30. Correct…and I am not saying Judge K made the correct decision…or that it isnt wrong to look at it again at a higher circuit. Just explaining my understanding to Nicolas that the judge used the definition of personal gain to Alec Peters et al. as opposed to whether strictly speaking Axanar is or meant to be a traditional commercial media product.

    Having said that…if there is any meat to the netflix angle (or his own online channels) that may change that argument as well.

    1. Well, Axanar’s full financial statement will reportedly be released to donors (and, ’cause someone’s bound to share it, the public at large) next week. I’ve been waiting eagerly for that!

      And Alec never met with Netflix. Hoping to meet with Netflix isn’t the same as actually meeting with them.

    2. Brian,
      That still is different matter: alleged personal profit is to be dealt separately from the alleged commercial nature of the Axanar show. Money was obtained by fundraising campaigns, not by selling the film !!! So, the fundraising could be infringing, but not the non-existing film.

      Well, I will have a look at Prof Snow’s article then.

  31. Hey, look! I just got an e-mail from Professor Snow!!!

    Hi Jonathan.

    Thank you for blogging about my article. I thoroughly enjoyed reading your post, especially your analogy to the flock of geese. Loved it! I am also delighted that my article was helpful to you.

    I wish you the best in your blogging.

    Ned Snow

  32. I am happy that Ned Snow is much more knowledgeable than his relative Jon…. he just knows nothing….. 🙂

  33. Guess who contributed to the first draft of Professor Snows article? Eugene Volokh, the Washington Post legal blogger! Where an associate wrote about the Axanar / CBS/P suit.

    Associate Professor, University of Arkansas School of Law. The author
    expresses appreciation to Professors Eugene Volokh, Stephen Sheppard, Tomás
    Gómez-Arostegui, and Thomas Lee for their helpful comments on an earlier draft of
    this Article. The author also recognizes the valuable research assistance of Michael
    Thompson and Christopher Warzecha

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