Moses Avalon works as a leading proponent of artists’ legal rights with 30 years experience and four books under his belt. Two of his books, Million Dollar Mistakes and Confessions of a Record Producer continue to be required reading in over 50 music business courses around the world including the music business programs at such prestigious colleges and universities as UCLA, Loyola, and NYU. His latest book 100 Answers to 50 Questions on the Music Business is a tell-all guide to help recording artists at each stage of their music career.
In addition, Moses is also a court-recognized music business expert in New York, California, Florida and Puerto Rico, has acted in an advisory capacity to multiple State Attorney General Offices and the Senate Judiciary Committee in Sacramento regarding the music industry, and has appeared on numerous television news shows (Court TV, MSNBC, CNN Money Line, & Bill O’Reilly) seeking the inside info on the music business. (I got the preceding two paragraphs from his website.)
Although Moses does not currently practice law himself, he knows the ins and outs of copyrights and has served as a consultant and as an expert witness on dozens of cases. In fact, on cases where he’s testified as an expert, the party that called him as a witness has won 7-out-of-7 times. Not bad!
He’s been following the AXANAR lawsuit closely and has been offering his guidance to Alec Peters. Moses feels strongly that Alec has more ways to win this lawsuit than to lose it, and he spent about 45 minutes on the phone telling my how and why…
JONATHAN: So, Moses, did you read my two-part blog about this case potentially going to the Supreme Court?
MOSES: Yes, I did.
JONATHAN: Do you think that there’s any possibility of that actually happening?
MOSES: I don’t see this ever going to the Supreme Court.
JONATHAN: So you don’t think there’s a valid argument about the Seventh Amendment?
MOSES: I didn’t say it’s not a valid argument. The Supreme Court doesn’t hear every case that it gets, as you know. They don’t give explanations as to why they don’t hear cases. This is not really a constitutional issue. This isn’t, y’know, right to life or right to death or discrimination. This is a copyright dispute; it’s kinda petty for them. Having said that, the Supreme Court has heard many important copyright cases. It would be great if I were wrong and this was one of them. But I don’t see the Supreme Court getting involved in it.
JONATHAN: Even if there’s an argument that the judge invalidating fair use might be a violation of Alec Peters’ right to a fair trial by jury?
MOSES: The judge can do whatever he wants. It’s reversible error.
JONATHAN: Reversible error?
MOSES: If it’s determined that the judge made a mistake, the appeals court can reverse the error by sending the case back to the district court and ordering a new trial. So in order to get to the Supreme Court, first Alec would have to have his actual jury trial and lose. Then he’d have to appeal to the Ninth Circuit, and in that they’d have to find that the judge did not commit reversible error, that the appeal was invalid. And then they can apply for it to be heard by the Supreme Court.
So I don’t see any of that happening. I don’t see the Ninth Circuit not seeing that this is reversible error. Their general philosophy would be to say, “Yes, the judge did make reversible error by denying Alec Peters his defense. We’re throwing it back down for a new trial.” They tend to play goalie when it comes to the Supreme Court. They tend to try to deflect cases from going upstream. They tend to try to deflect them back down to local courts.
JONATHAN: So you think it’s more likely that Alec is going to get a new trial ordered at the appeals court level then for the appeals court to turn him down, is that correct?
MOSES: IF he goes to trial, IF he loses at trial AND it’s prudent to make an appeal, and IF his lawyers decide they want to stay on this case to appeal–those are all big IFs right there…all of those are massive IFs–and IF it goes to the Ninth Circuit, my prediction at that point would be that they would likely say the judge had reversible error and kick it back down for a new trial.
JONATHAN: Well, at this point, most of us watching the case pretty much believe that Alec is much more likely to lose this trial than to win it.
MOSES: That depends. That depends on his lawyers’ strategy. They may not go to trial at all. They may try to push Alec to make a settlement. I think they will push him to make a settlement.
This is fairly standard of all pro bono cases. When law firms take on cases like this pro bono, they do it for the publicity, they do it because they think they can make new law.
Now, in this case, it’s pretty obvious they have a hostile judge.
JONATHAN: And what’s a “hostile judge”? (Although I think I can guess the meaning.)
MOSES: It’s just a lawyer term. It means someone who is unsympathetic to your case…for whatever reason. A hostile witness is a witness who doesn’t want you to win. A hostile judge is generally going to rule against you most of the time.
JONATHAN: So what makes you say Judge Klausner is hostile? Just because he invalidated the fair use defense?
MOSES: It’s not just that. It’s the way he did it. Copyright law is a very wide-ranging set of very ambiguous legal precedents. And it’s supposed to be that way, because every copyright case is unique. That’s why it’s supposed to be defended in front of juries. But this judge cherry-picked the case-law rulings that supported his opinion and ignored those that didn’t. That’s hostile. Also, he excluded three out of four of the witnesses the defense wanted to call…especially those who were supposed to talk about other fan films, which is essential to deciding this case. So he’s depriving Alec of a proper defense.
JONATHAN: So they’ve got a hostile judge. And this means…?
MOSES: Well, the minute the law firm realizes they have a hostile judge, and they realize the case is gonna go against them, the social equity of their investment in this goes down substantially because they don’t want to go to trial and lose. And if you have a judge that’s hostile to you, there’s a good chance you’re going to lose. So I think that they’re gonna try to push Alec into a settlement. And I think if he insists on a trial, they will take it to trial. They are obligated to do so. But that doesn’t mean they’re gonna give it their A-game.
JONATHAN: I’m not so sure. I’ve been reading every document–hundreds of pages! And while I’m not a lawyer myself, it sure looks like Erin Ranahan has been throwing everything she’s got into this case.
MOSES: Yes, if I was to opine on their motions, I would say that, so far, they are bringing their A-game. Erin’s work was first-rate. And it has been up to this point. But the point you’re talking about is a different point. The point I’m talking about is once they have a trial date, once they have to swear in a jury, once they have to physically stand up there and make a public argument, once this case becomes open to the public and anyone can sit in that gallery, that changes the game for the law firm. You see what I’m saying?
JONATHAN: Yes, but I don’t see how the law firm would not bring their A-game at this point, as well. I mean, obviously, they have a hostile judge, but it sounds like if they don’t bring their A-game, they almost guarantee a loss. Wouldn’t they rather go down fighting than to just throw in the towel?
MOSES: It happens all the time. Law firms get tired of cases. They can lose heart. Now, I hope I’m wrong about all of this, I really do. And I don’t have any reason to believe that Winston & Strawn has or is going to lose heart.
But personally, I wouldn’t push him to settle when they still have such a strong case.
JONATHAN: A strong case? But you said they have a hostile judge. And fair use was just thrown out.
MOSES: But they still have substantial similarity, and that’s a decent case, as well. And the more important victory, to me, is not whether or not it was substantially similar. The more important victory is whether or not it was willful or not willful. So in my parlance, losing but losing with not willful is a victory for Alec and a victory for fan films in general.
JONATHAN: And why is that?
MOSES: Because the damages for non-willful are, like, a few thousand bucks. It’s less than the licensing fee! So the studios would have spent millions of dollars and basically walked away with a judgment that not only is very little money for them–literally pennies–but a horrible legal embarrassment for them.
JONATHAN: Do you then think that other fan films are gonna do what Alec did and just go balls to the wall and risk a lawsuit themselves?
MOSES: I don’t know enough about the fan film landscape to really answer that with authority. But I would think that if you’re hell-bent on making a fan film, you’re gonna think twice about it if Alec settles. And I think that, if Alec goes to court and a jury comes back and says, “This was non-willful infringement. Your fine is $750,” I think that sends a very strong message to the fan film community. Don’t you?
JONATHAN: Yeah, I just don’t know if the rest of the fan film community has the balls that Alec has.
MOSES: I can’t comment on that! [We laugh.] If a decision comes down that after two years and millions of dollars, the fine for doing this is seven hundred bucks, I don’t think you have to be a genius to figure out that that’s a victory for Alec.
JONATHAN: Well, I don’t think it’ll be seven hundred. At best, I think it’ll be a few thousand. Because it’ll be either $200 or $750 per violation.
MOSES: Even if it’s a few thousand. It’s nothing.
JONATHAN: So we no longer have fair use, but we still have substantial similarity, and we still have willful versus non-willful…
MOSES: I think they can win substantial similarity. But I have a very unique strategy that I think most lawyers have not considered.
JONATHAN: And that is?
MOSES: I can’t tell you. They might use it.
JONATHAN: Well, can I tell you my idea to disprove substantial similarity…and you can tell me if I’ve guessed right?
MOSES: What’s your idea?
JONATHAN: The defense shows the jury the end of the episode “Mirror, Mirror” and then the beginning of the Star Trek Continues episode “Fairest of Them All“–maybe they even show them side-by-side. Then the defense says to the jury, “Now, this is substantial similarity. There’s no question that Axanar borrows a certain small number of elements from Star Trek. We’re not saying it’s not somewhat similar or even moderately similar. But when you compare it to Star Trek Continues, with Kirk and Spock and the Enterprise and all the identical sets and costumes and music…and when you consider that that is the bar for substantial similarity…then you have to reach the conclusion that Axanar does not reach that bar. In fact, considering the amount of characters and starships and music and even the story itself that was completely original, Axanar doesn’t even come close to that bar.”
MOSES: That strategy only works if you have a jury full of smart Trekkies just like you. Chances are, that won’t happen.
JONATHAN: Oh, well, there goes my career in litigation!
MOSES: Hey, it’s not a bad strategy. But it’s risky. So is my strategy–so is any strategy. You never know what a jury is going to decide. But I just think that my approach has a much better shot at winning, and it’s much harder to defend against if the other side doesn’t see it coming. And I really do think it’s a very winnable case…the substantial similarity.
So Alec has two ways to win: substantial similarity and non-willful infringement. Getting either of those is a win in my book. Only if he loses on both of those does he lose completely, so that’s already 2-to-1 odds in his favor. And even if he loses completely, if he then goes to appeal, there’s a whole other set of ways to win, making his odds even better.
And look, Jonathan, if this were Las Vegas, I’d say Alec has to go to trial…because there are more ways to win than to lose. And in Vegas, if you ever have more chances to win than lose, THAT is the game you have to play.