LEGAL EXPERT says AXANAR has more ways to WIN than to LOSE the lawsuit! (Interview)

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.

109 thoughts on “LEGAL EXPERT says AXANAR has more ways to WIN than to LOSE the lawsuit! (Interview)”

  1. ok, so how do you win on “non-willful”, if you can’t (i guess?) talk about OTHER ST fan films…?

    *if you can give it perspective*, i think “non-willful” is a winner! =)

    1. Even the judge thinks non-willful is reasonable. I would expect some allowance for discussing other fan films to be ruled on. But who knows? Just more grounds for appeal if not.

      1. Just because the Judge is leaving the “willful infringement” aspect for a Jury to decide; it doesn’t necessarily think is ‘reasonable’. IF the Judge had been asked to fully decide the case; who knows how he would have ultimately ruled?

        But, most lawyers follow the following Axiom:
        – “If you know for a fact you’re innocent/not at fault ask for a Judge trial.”

        – “If you know you’re Guilty/at fault, ask for a Jury trial.”

        And it was Alec Peter’s/Axanar’s Defense team that asked for a Jury trial. 😉

  2. “I have a very unique strategy, but I can’t tell you”that has all the earmarks of a 12 year child who has all the answers to everything in the world but can’t tell you because it’s a secret – this guy has very little substance !
    This is another example of a Monday morning quarterback who maintains he has all the answers and holds them until after the game – lol …

    1. Actually, it’s because he’s advising Alec, and if Alec’s lawyers use the strategy, it kinda needs to be a secret. The New York Jets don’t hand their playbook over to the New England Patriots before the game begins (not that that ever stopped Bill Belichick!).

      1. Well, thank God Moses is communicating with Alec about his thoughts. That’s my first question answered.

        Now, these statements I’m curious about:

        ” Now, in this case, it’s pretty obvious they have a hostile judge.”

        ” 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. ”

        And now I feel vindicated in my previous comments!!! All of them concerning this judge.

        1. “Well, thank God Moses is communicating with Alec about his thoughts. That’s my first question answered.”

          As I remember, God talked to Moses first and then Moses spread the word. (Yeah, I know, I’m making fun of the guy’s name. I shouldn’t do that. But I so want to say, “Let my fan film go.”)

          1. >> …I so want to say, “Let my fan film go.”

            It could be worse… I immediately had this stuck in my head for some reason. 😛

        1. I am a looooooong suffering Jets fan.

          That said, I also really like the Chargers and am thrilled they are finally coming to Los Angeles so I can watch them lose in person! 🙂

          1. I’m an Eagles and Steelers fan. Born in Pittsbugh and living in Philly. I’m glad lost and so far Pittsburgh is winning as I type this.

          2. You just lost friend points from me, Jonathan! Wrong answer, -5 pts!

            You see, they’re MY Chargers!! So, keep your damn hands off! LOL.

            All kidding aside, I’m disappointed the Chargers Organization could or would not work out a deal with the city to build a new stadium and keep the team here. But Dean Spanos, I believe, has finally reached the end of his rope after trying to get this done for 15 seasons now.

            It should be interesting to see what San Diego will do about this situation now. How can the #8th city in the US go without an NFL team? I’ve even heard rumors about trying to get our arch rivals, the Raiders, to come here! Good lord!

          3. The Raiders are headed for Vegas, dude. It’s all but a done deal at this point. And if SD isn’t gonna pony up money to build a new stadium for the bolts, then they certainly ain’t gonna build one for the silver and black bullies. To be honest, I think San Diegans made the right call. The NFL shouldn’t be allowed to hold a city hostage or a team for ransom (choose your metaphor).

            And hey, I LOVE San Diego. My parents lived in La Jolla for 15 years. My nutritionist is down in Mission Bay. And Comic Con, back when I used to go, was amazing (now it’s just the world’s largest petri dish). I’ve been a Chargers fan since I was 7 and decided I liked the lightning bolt on the uniform. I’m sorry they’re no longer in your town, IDIC, but better they move to L.A. than farther away. (They did start here, after all.) 🙂

      2. That’s your first warning Jonathan. Belichick has never had his day in court. Remember, innocent until proven guilty! lol

        1. This was Bellichick’s statement back in 2007:

          I accept full responsibility for the actions that led to tonight’s ruling. Once again, I apologize to the Kraft family and every person directly or indirectly associated with the New England Patriots for the embarrassment, distraction and penalty my mistake caused. I also apologize to Patriots fans and would like to thank them for their support during the past few days and throughout my career. […] As the Commissioner acknowledged, our use of sideline video had no impact on the outcome of last week’s game. We have never used sideline video to obtain a competitive advantage while the game was in progress. […] Part of my job as head coach is to ensure that our football operations are conducted in compliance of the league rules and all accepted interpretations of them. My interpretation of a rule in the Constitution and Bylaws was incorrect. […] With tonight’s resolution, I will not be offering any further comments on this matter. We are moving on with our preparations for Sunday’s game.

        2. Sorry, Jonathan, I thought the blog was sponsored by ESPN!!! (JK) Milan, apparently the coach’s shenanigans are common knowledge, Not to mention Deflate-gate by the quarterback. Though unless something unexpected happens this weekend, with Atanta playing Green Bay and KC playing New England, it looks like the Super Bowl may be a re-run. A good one, but a rerun nonetheless.

  3. I appreciate the “on the other hand” nature of this post.

    But my “spidey senses” went ballistic when I read this “MOSES: I can’t tell you. They might use it.” Huh and double huh? Outside of wildly speculative ideas about why he would say that including that one side or the other has paid him for that idea, I wonder. Do you have any speculation about why he would not give us that idea outside of having already shared it with one or the other side?

    1. He explained why he couldn’t tell me. He’s advising Alec. If he has a potentially winning strategy, there are myriad ways that the plaintiffs could sabotage it if they knew what to expect and look for. In fact, I would have been MUCH more suspicious of Moses if he actually HAD told me! When I asked him the question, I fully expected the answer I got. But I had to at least ask.

  4. I completely agree with his analysis and have said as much for awhile. And the great thing is if Alec gets a non-willful which is still a win as far as were concerned right, he can still appeal and shoot for an even bigger win. So I think as long as Erin and Alec have their long term thinking hats thing only get uglier for CBSP the longer this drags on. Imagine a 5 year trial upto the appeals court and back only to end with non-willful and a slap on the wrist, talk about a waste from CBSPs perspective.

    1. I still wouldn’t be surprised to see a settlement before trial begins in two weeks (SHEESH–so close!!!). After all, CBS/P kinda “won” already with the judge’s ruling throwing out fair use. From here on, everything is a risk for them (losing on substantial similarity, losing on willful infringement, and losing on appeal and having to pay for a new trial). The best the studios can hope for is to keep things at the level they are right now (the judge pretty much telling the studios, “Hey, I think you’re right…” and the studios doing their happy dance). Why not quit while they’re still ahead?

      Of course, it takes two to settle, and Alec hasn’t been interested in their terms so far. So either those terms loosen a bit, or we’ll see everyone in court on the 31st!

      1. I imagine the hold up to a settlement has been Alec needing to do right by the donors and insisting that some form of Axanar be allowed to be made. CBS/P, on the other hand, can’t allow that without losing face after pushing the legal battle this far.

        1. The settlement talks are a point I imagine many have been frustrated to not know anything about, what each side are offering and what either or both of them are objecting to and refusing to consider.

          Shame that this subject, if I am remembering my updates correctly, is sealed under a protection order so we will likely never actually know unless that seal legally comes down.

          1. Yep. The thing about settlements is that they are meant to protect both sides. For example, Alec doesn’t have to say that he infringed and CBS doesn’t have to say they are acknowledging that Axanar was fair use after all. Instead, both sides say essentially nothing.

  5. MOSES: I can’t tell you. They might use it.

    So, does he not want them to use it? Would he not be willing to tell Alec or his lawyers this strategy (assuming it doesn’t include using corbomite)?

    1. Let me clarify: Moses does, indeed, want the defense to use his strategy. However, he does NOT want the plaintiffs to know it so they can sabotage that strategy.

      1. Ya, I’m sure the CBS legal team (one of the best in the country) hasn’t thought of every situation which Moses has dreamed up in this trial.. lol

  6. It seems that both you and Moses are forgetting a key point: Ranahan ASKED the judge for a summary judgement based on fair use. He has granted that but unfortunately for Axanar it went to the plaintiffs. You can’t ask for something and then moan when it doesn’t go your way (like the fan film guidelines).

    1. As was explained in an earlier answer when I quoted Professor Snow, Sandy, just because a party in a lawsuit asks for a ruling at summary judgment does not mean that they waive their right to a jury determination. They simply ask for a summary judgment ruling. If they don’t get it, then they can still invoke their Seventh Amendment right…at least in this country. Here’s that quote from the professor again if you missed it:

      “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.”

        1. Well, there are ALSO two other possibilities that would contradict your prediction:

          1) There is a settlement and no jury trial, or

          2) There is a jury trial not on fair use, Alec loses, appeals, is granted a new trial, and THEN there is a trial on fair use.

          1. *sigh*
            It wasn’t a “prediction” Jonny, it’s what the judge has ordered. Sure, Alec might settle before the trial but I doubt it if he hasn’t already.

          2. My feeling on settlement has shifted since the fair use ruling, which is why I’m bringing it up more often as a possibility these days…keeping in mind I have no idea how close or far away the two sides are right now. But Alec did imply they were close a couple of months ago (although we can’t know if that was just putting some positive spin on an otherwise frustrating situation).

            So here’s MY thoughts on it…

            The fair use ruling was a game-changer for both sides. For Alec, it took away his most probable path to victory. Despite what Moses said about the winning strategy-that-must-not-be-spoken-aloud, I still think it’s now a long-shot that Alec can win this case outright at the first trial. But every lawyer/legal expert I’ve spoken with (which is four…five if we count Alec himself, since he did graduate from law school) agrees that the judge’s ruling on fair use is at least grounds for an appeal. Whether or not Alec wins the appeal and gets a new trial doesn’t actually matter in my equation. Here’s why…

            CBS is trying to launch a brand new Star Trek pay-TV series that has a lot of pressure on it to work and attract subscribers. And despite what CBS executives might say or hope, they know the core of their subscriber base will come from longtime Trek fans. And right now, we are seriously fractured…and the reason is this lawsuit. Even if half the fans are pissed at Axanar, that still leaves half pissed at CBS. And even if the percentage of fans that even know about this case is minuscule, CBS still doesn’t want there to be ANY controversy when DISCO launches. And with an ever-increasing number of major news outlets covering this case (most recently Bloonberg and the Washington Post), the chances of the fan frustration and controversy spreading goes up almost daily.

            All for a lawsuit that CBS and Paramount have essentially already won.

            They’ve made their point. They own Star Trek, and the fans must follow the guidelines or else face the wrath of copyright infringement. The judge pretty much said so. If the studios walk away now, they “win.”

            But if they don’t settle and this goes to court, they risk losing in–as Moses said–multiple ways. Alec could win outright on substantial similarity, and that would be a HUGE blow for the studios. Alec could lose with a minor slap on the wrist, in which case the news media will talk about how the studios just spent a million dollars to make a few thousand. Also a loss…of face. And then there’s the appeal, which just drags this out for another year or two or possibly longer. And if Alec wins the appeal, then the studios are looking at spending ANOTHER million dollars to give Alec another chance to win with a greater likelihood of succeeding using fair use this time.

            So right now is really as good as it gets for the studios UNLESS they win a huge jury award, which is still a possibility. But as Moses said, in Las Vegas, you want to play a game with a lot of ways to win, not just one.

            So if the two sides are, in fact, “close” (as Alec said), then maybe the studios become a little more flexible now that they can just walk away on a high note. That said, I still think there’s a very good chance we see a trial begin in just 15 more days. But it’s not as big of a chance as it was before the summary judgement ruling.

            Just my too sense…

          3. Haven’t you realised yet that they want to make an example of Peters? You’ve prophesied many times that they’ll settle and they haven’t. Whatever their terms are they probably haven’t changed. They’ve made the decision (apparently) to be in this for the long haul. It’s Alec who has refused their terms. He is the one who needs to suck it up and settle.

          4. Well, I know Alec isn’t looking to settle with the current terms. I’m guessing they say something like there can be no more Axanar anything. So Alec really has little-to-nothing to lose by dragging this out and trying for the win…because if he loses, then there’s no Axanar anyway. Same result from losing or settling…so why not try for the win?

            On the other hand, as a I stated, the studios are now looking at this case potentially dragging on for a long time. I just don’t think they want that–at least, they SHOULDN’T want that…not just to smack down a Star Trek fan in front of other fans and wannabe fans. What do the studios really have to gain at this point? As I said, they’re so far ahead right now…and the likelihood of things getting worse from here (they’re close to the top of the outcome chart) is a lot higher than of them getting better.

            But we’ll see. You’re right, I’ve been predicting the studios will settle before the trial for a long time now because I think they’re being logical. Maybe there are no Vulcans at CBS and Paramount…

          5. “CBS is trying to launch a brand new Star Trek pay-TV series that has a lot of pressure on it to work and attract subscribers…..”

            This sounds awfully familiar….

            “Going into Star Trek’s 50th anniversary, the last thing CBS would want is any negative publicity related to Star Trek. As of August 30th, 1.5 million fans have watched Prelude to Axanar on Youtube, and other fan productions have large viewerships, as well. All of the fans watching these productions are Star Trek consumers. Alienating them by changing CBS’ relationship with fan films would not be good for business, particularly now, in the age of social media.”

            AND

            “Axanar is good for CBS and Star Trek. There is little doubt that fans are very passionate about Axanar, and many are looking forward to Axanar more than Star Trek Beyond. Axanar gives Star Trek fans what they want in Star Trek. We love Star Trek. We get it.”

            So, Mr. Lane, if Peters was so very wrong in August/September of 2015… what makes you right today?

            CBS and Paramount don’t want Axanar to be filmed… not as a Star Trek film, outside of the Guidelines they crafted. Peters has continued to repeatedly say, that he was unprepared to settle if Axanar couldn’t be made…

            It seems that what we have here is a Mexican Standoff…..

          6. >> So, Mr. Lane, if Peters was so very wrong in August/September of 2015… what makes you right today?

            Well, Mr. Jumpsuit (are you a Mr., Miss, Ms., Mrs., or other?), the difference is the judge’s ruling on fair use. I think that could tip things at the studios. I could also be wrong. I’m not saying they WILL settle, only that they COULD settle, and I think the odds of that just increased when Klausner gave Axanar grounds to seek an appeal.

            “It seems that what we have here is a Mexican Standoff…..”

            And if no one puts down their weapon first, they start shooting in two weeks!

          7. First of thanks for all these posts, I have been reading them with great fervour (though I have not delved into the documents behind them). Two things niggle me here though, well, okay, one and question…

            I don’t understand your argument of you think it more likely now that a settlement will take place…
            Firstly from the legal side of what has changed with fair-use? From what I understand from reading your posts (and this requires some mental time-travelling), this means (assuming the higher court rules in favour of allowing fair-use back in), that a new jury trial will get arranged at the same level as this one, SO… looking ahead to the future assuming we get fair-use back in, we NOW have the same legal situation as before the Judge ruled it out, i.e. looking to the future with “substantially similar”, “wilful infringement” and “fair-use”, albeit with “fair-use” postponed to some later date, with “fair-use” still standing at the 20% odds that you gave it of going in Peters’ favour. Of course the legal situation does change at the trial (as far as I understand from reading your posts) which will set the upper-limit of what they can fine Peters’ in the second trial with fair-use. (That explains the time-travel, the mental gymnastics between past, future and present, and probably a few Schroedinger boxes thrown in for good measure).

            Secondly the non-legal side of the settlement itself…
            + We know that they didn’t reach an agreement before.
            + We can lay good odds that Peters won’t compromise on the agreement, if as you say he has nothing to lose by going further (and if he does have more ways to win than to lose).
            + Therefore any budge has to come from the CBS&P

            The question then becomes, what would they need to budge on to allow Peters to say “yes”, and would this make CBS&P loose face? and how much face would they feel inclined to lose? You have already discussed what CBS&P would consider losing, i.e. not getting more than a few thousands dollars, and/or allowing Axanar to go ahead… so I don’t see a way that a settlement “which allows both sides to say yes” could arise.

            Now for the other question… Assuming no settlement before the end of this month, I wonder at what point Peters would accept the outcome and not push to appeal against the removal of the fair-use defence? At what point does he go “okay, I have won enough, I will leave it here”, as you say, he has nothing to lose from continuing, just curious to hear your thoughts, if you feel at liberty to share them.

          8. “The question then becomes, what would they need to budge on to allow Peters to say “yes”, and would this make CBS&P loose face? and how much face would they feel inclined to lose? You have already discussed what CBS&P would consider losing, i.e. not getting more than a few thousands dollars, and/or allowing Axanar to go ahead… so I don’t see a way that a settlement “which allows both sides to say yes” could arise.”

            As it’s getting late and I need to get to bed, let me just say this. The original plan by Paramount and CBS (and then later, by CBS and Paramount…don’t ask me to explain that statement) was to intimidate Alec Peters into tucking his tail between his legs and begging for mercy. The studios would have shut him down–hard!–and in return, dropped the lawsuit. It was never about winning $8.55 million dollars from a small-time Trekkie. It was about putting a stop to the trend-line of ever-increasing budgets and quality of Star Trek fan films. A line had to be drawn and an example made. Someone needed to go down publicly and severely to stop all the rest of the fan productions from trying to one-up Axanar because, eventually, the studios were worried about the $5 million fan film, the $10 million fan film…and maybe even the $100 million fan film!

            The problem is their plan A didn’t work at all. Alec Peters lawyered up with a top intellectual property law firm willing to work pro bono…and they LOVED the case and LOVED the client. Really. The detractors might not like Alec Peters, but Winston & Strawn were throwing everything they had at this case–including multiple $1000/hour partners who just wanted a piece of the action. This was BAD news for the studios. Now if they wanted to win this case, it was going to cost time, money, and goodwill of the fans. Initially, back in March/April, the studios thought that the fans had mostly turned against Alec Peters (don’t ask me how I know this). But by the time of JJ Abrams’ May announcement, the realization had begun to dawn on Paramount that the fans were not as unified in being anti-Axanar as they initially thought. That’s kinda when Paramount and CBS became CBS and Paramount, as the latter was now much more worried about the potential bad press (suing your own fans) heading into the July roll-out of the $300 million blockbuster. Paramount didn’t want to risk anything hurting that movie at the box office (which is why JJ’s announcement was not entirely his own fantasy…but there were always TWO studios litigating this complaint, not just one).

            At this point, though, CBS had already moved forward with the new guidelines, which would effectively solve the original problem of stopping that troubling fan film trend-line. There would be no more Axanars (assuming the guidelines were followed), and so the lawsuit could potentially have been dropped then. But the terms still weren’t acceptable to Alec and his team (because–I am guessing–they still put the kibosh completely on Axanar). The studios weren’t about to effectively “neuter” their new guidelines by allowing Axanar to be made, and so the standoff continued.

            But the problem that Paramount faced from bad publicity in July was now threatening CBS. They had, by this point (late summer), announced the new Star Trek: Discovery series. And it would debut just about the time the trial was getting started. Needless to say, the PR challenge of trying to boost fan enthusiasm while also suing one of the fans was not exactly something the marketing department at CBS was looking forward to. And I suspect that, had DISCO not been delayed, we might have seen a settlement back in November. But DISCO did get delayed, and now the trial could begin and end before the publicity campaign would really rev up in April. And the belief from CBS was 100% confidence that they would win–possibly even win big.

            But the fair use ruling changed that. Even if the trial ends in March, an appeal keeps it going. And with all of the problems hitting DISCO (including now-indefinite delays), CBS really, REALLY needs this distraction of a lawsuit to go away.

            Will it? Well, it won’t be long until we find out one way or the other.

        2. Sandy,

          Let’s say the trial has ended, Alec is guilty of “non willful” infringement, and fined $10 grand. If CBS/P appeals because they believe it should have been found “willful”, you can then bet that Erin will file an appeal to allow for Fair Use to be back in play in the next trial.

          The appeals court will then have to decide the following:

          A- did the jury get the willful/non willful verdict wrong, if the answer is no, CBS/P’s appeal is over(unless they appeal to the full court or higher) or if the answer is yes, they can’t change the verdict, only “remand” it back to district court for a new trial and a clearer set of jury instructions on the difference.

          B- was Judge Klausners ruling on “fair use” “legally correct”, if it was, so be it, but if it was not because of the 7th amendment and right to jury trial, it again gets remanded back for a new trial, and in this one fair use can not be taken off the table.

          While we differ in our views, anappeal is a bigger minefield for CBS/P than for Alec.

          1. CBS/P would have to appeal on grounds other than they didn’t like the verdict. They have to find a misapplication of the law by the judge in one of his rulings. I don’t think they have that at the moment.

          2. “Let’s say the trial has ended, Alec is guilty of “non willful” infringement, and fined $10 grand.”

            If the Jury finds that Axanar is substantially similar, then the Judge would be willing to file an injunction (he has already said he would) then CBS/Paramount would have no reason to appeal. EVEN IF the jury comes back with non-willful… They stopped someone from using their IP, which is what they obviously want here.

          3. But then the door opens to an appeal, and CBS/P’s win is potentially “tainted” as we don’t know whether Alec would have won on fair use. That unknown keeps the hope alive that it’s a valid defense. Had the judge not ruled fair use invalid on summary judgment, the trial could have happened with all cards on the table. And if Alec lost THAT trial, then all hope for other fan films to win with that strategy would be mostly dashed.

          4. “But then the door opens to an appeal, and CBS/P’s win is potentially “tainted” as we don’t know whether Alec would have won on fair use. That unknown keeps the hope alive that it’s a valid defense. Had the judge not ruled fair use invalid on summary judgment, the trial could have happened with all cards on the table. And if Alec lost THAT trial, then all hope for other fan films to win with that strategy would be mostly dashed.”

            Right… but I wasn’t talking about Peter’s motivation for appealing, I was talking specifically about CBS/Paramount appealing, if they won the Substantial Similarity test, but the Jury declare that it was not willful infringement.

          5. I think the Jumpsuited one is saying under those reasons CBS/P wouldn’t feel the need to appeal considering it would find Alec/Axanar guilty, if non willingly, and the potential for an injunction on working further (if I understand his/her post properly)

          6. “What grounds would CBS/P have for an appeal? They can’t appeal simply because they didn’t like the verdict. The judge must have misapplied the law in some way.”

            I am not the one suggesting that they would appeal. My point was, if they won the substantial similarity test, then Klausner has already found the Axanar Works infringing, and he already said, that at that point he would be willing to move forward with Injunctive relief…

            What I was saying, was what should that happen, even if the willfulness question didn’t go their way, they wouldn’t have a motivation to appeal, because they got what they wanted, Axanar won’t be made (pending a defense appeal of course).

            CBS doesn’t care about the money in this, other than they believe someone was commercializing their IP… Once they can put a stop to that, that’s going to be sufficient for them.

        1. That’s a very complex question with a very complex matrix of answers. The first thing that has to happen is…well…something with this case: win, loss, or settlement (or appeal). Before any of the above happens, I couldn’t begin to speculate.

  7. Like you Johnathan, i am glad Moses wouldn’t tell you his strategy. Watching my dad practice law for 45 years, I always admired the fact that while the prosecution/plaintiff always has to put all his/her cards on the table, the defense can set up their strategy in secret. While W&S can’t spring any surprises, they can tailor their defense using EVERYTHING the judge has allowed BOTH SIDES to bring to the table.

    this is a big advantage because while the plaintiff will hammer Alec using “big rocks”, the defense can use those very same big rocks and reduce them to pebbles with the right strategy.

  8. A very interesting read, as always, Jonathan! Thank you for bringing this to us FFF readers. There is such a long way to go to gain as much victory as can be had from all of this, but Mr. Avalon’s analysis and observations help by putting forth more positive outcomes for consideration. I like him already!

    I also appreciate his opinion on Judge Klausner as a hostile judge. More’s the pity that Winston and Strawn have to battle in such a court. Talk about having the deck stacked against you!

    One final thought: since Mr. Avalon is so good at winning for those he is called as an expert witness, I wish there was a way he could be called to testify on behalf of Axanar and Alec!

  9. It’s absolutely formulaic plotting that just as the hero’s about to lose in any number of ways, reinforcements ride over the hill, decloak, the hero gets in a lucky punch or something else happens to save the day. I’d hate to see real life violate that formula.

  10. I’m a little confused about your thoughts of other fan films risking a lawsuit after the court goes for non-willful infringement in the Axanar case (but for “infringement” in particular). Axanar’s infringement being non-willful doesn’t imply non-willful infringement for any subsequent case. In my perspective that would rather be a perfect example of *willful* infringement because in this case every fan film producer will now know they’re committing infringement *and* CBSP will sue them if they cross a certain (more uncertain) line.

    1. It’s tough to say. If Alec wins on the willful versus non-willful, even if he is declared liable, that’s still a pretty small verdict. And the precedent will have been set for fan films to use the defense of “Hey, we thought it was okay.” Since the fan film guidelines were released, nearly two dozen Trek fan films have been released. Nearly all of them have violated at least one of the guidelines in some way. Now, a few were “grandfathered in” because they were already in production. But as time goes on, that distinction will become ever more tenuous. So if CBS and Paramount continue to look the other way for fan films that cross the 15-minute limit or ones that have an ongoing series with more than two 15-minute parts, that becomes an additional justification for claiming the non-willful defense. And if that results in just a few thousand dollars of fine, as Moses said, that’s pretty small, all things considered. A well-funded fan production might take the chance. I’m not saying it WILL happen…only that it COULD happen.

      1. “A well-funded fan production might take the chance.”

        I don’t get this. if you get a fine, it’s not like a late license payment. You don’t get a license in the deal!

        What good is it to produce a fan film if CBS/P is after you? It’ll be taken down youtube and anywhere else anyone could see it.

        Making fan film isn’t about being working in the dark, smuggling this stuff around like it’s drugs or a sneaking out an hostage from terrorist. You make fan film that you want other people to see. In the daylight.

        1. Perhaps…although some might say it’s the forbidden fruit that fans want to see the most! Also, while YouTube will take stuff down, Vimeo isn’t nearly as cooperative. Add to that fan bit-torrents and other mirror sites in other countries. Yeah, I’m sure fan filmmakers would rather their work be seen in the light of day, but you never know with some people.

          1. This exact thing happened to Damnatus, a german Warhammer 40 000 fan film ( http://www.imdb.com/title/tt1838495/?ref_=fn_al_tt_1 ) , it was pretty big in scope and took a long time to make. Games Workshop (who owns WH40K) was also pretty fairly behind it, not exactly endorsing it, but they’d expressed interest.

            Before it, people had really been clamoring for a 40K film, and GW wasn’t obliging, so it was a pretty big deal all around. Then Damnatus is almost finished, and BOOM “You’re not allowed to release the film, noone may see it!”. Coincidentally, GW had just started making their own WH40K film Ultramarines ( http://www.imdb.com/title/tt1679332/?ref_=fn_al_tt_1 ), I’m sure that had nothing to do with it. *cough*

            It took a few weeks, and then one of the computers of the people involved got ‘hacked’, and a copy appeared on the pirate bay. While I’m not an avid player of 40K I thoroughly enjoyed Damnatus. 40K has a very large universe in terms of world-building and scope as well, and I think this fan film does justice to it.

            Article here: http://arstechnica.com/gaming/2007/11/when-fan-art-meets-ip-warhammer-40k-fan-film-slain-by-copyright-snafu/

  11. I surprised nobody has picked this up yet.

    You spelt Moses’ surname Ava’n’lon, where it is spelt Avalon on the picture beside it. Right at the start of this blog.

  12. I don’t see how any of this is positive for fans of Axanar? The way I’m reading this, it looks like when he says “win”, he means non-willful, and pay lower fines, it doesn’t mean that Axanar is allowed to proceed. It’s still an infringing work that can’t be produced.

    Then, if you make a different script, or maybe you change the format to the documentary format that prelude is, you have an enormous legal risk. That new work could cause another lawsuit and then it would DEFINITELY be willful.

    They could also just wack you in the head with trademark lawsuits, they just didn’t bother with that right now. They have a lot of weapons in their arsenal, it’s not like all you have to do is whiz past this trial, and then win an appeal and you’re home free. There aren’t just two or three steps in this.

  13. So, if Alec loses the case (hopefully not) and all the appeals, does that mean the Axanar film is dead in the water?

    1. Probably…unless someone else wants to do it! 🙂

      And remember, the guidelines do NOT apply to audio dramas or fan literature. I suspect fans will eventually know the full story of Axanar in some way or other…

      1. Indeed. After the fog clears and the dust settles, this is the thing that will drive a certain group of people the most crazy. Even if Alec loses the case(s), appeal(s), and gets some kind of fiscal penalty…in some form or another we’re probably going to get to see/read/listen to Axanar, even if someone else makes it with cardboard boxes for ships and posts it on some Russian knockoff YouTube site. And there will probably also be a documentary about the struggle to make Axanar, which will likely be terribly inconvenient if it happens to come out around the same time as, say, the second season premier/finale of a potentially struggling online-only franchise whose owners have pissed off a sea of fans (and a revered showrunner).

        And if/when we get to read/see/listen to it, some people will simply never be able to get over that. And they won’t be able to bear FFF writing nicely about it, or linking to it, or positive comments being posted about it. There will be blogs launched with titles like Axafanficmonitor where earnest debates will be had about real internet journalism, definitions of the word “independent” will be suggested, ads will be placed for CPAs, awards will be given for the lamest schoolyard ways to rename Jonathan, recycled “defender of the faith” memes will be praised for their stunning lack of originality, pie recipes will be shared, conspiracy theories about the IRS’s links to secret donor lists with missing names will have their own mini-wikis, TMZ-style photos made covertly from parked cars will show Alec happily living his life and there will be much indignation for that audacity…oh, and lots of sushi.

          1. Uptick for the multi-layered Talking Heads reference. 🙂
            I assume the verdict in the Court-case has to be studied for ‘landmines’, but is there a vague, tentative schedule for Appeals?
            Is it likely to be this year, next year, after ‘Disco’ season 1 is done..?

            Btw. A happy half-century and keep up the cardio – it pays dividends.

    2. The Axanar project has been dead-in-the-water for a long time. Now, with a zero budget remaining it all seems meaningless!

        1. It would definitely be a great Kharn roast. I also got the Talking Heads reference from the song “Once in a Lifetime.”

  14. Also why I stated clearer jury instructions. If CBS/P believes the judge did not apply the law properly when instructing the jury before deliberations, leading to a finding of non willful guilt, that is an appealable avenue

    1. Possibly. That said, both parties typically agree to the phrasing of jury instructions before they are given. Assuming that happens with this trial, it’ll be tough for the studios to appeal on those grounds.

  15. How is non-willful infringement a win for the fan community? It may sound like one for the lawyers since they focus on money. But clearly if the verdict is infringement, Axanar is not going to be made.

    CBS is not in it for the money. CBS is in it for the control. If they can decide to arbitrary shut down fan films, where is the win for us?

        1. My mailman is Reggie. Great guy. Jayden always waves hello to him when we drive by him on his route, and a few times, we actually joined Reggie for a few blocks of delivering mail, and Jayden would open all the mailboxes for him.

  16. It can be deemed a win because if Everytime CBS sues, they spend millions in legal fees. To do so knowing they may only recover a few thousand in damages, makes the likely hood of suits gainst other fan films unlikely.

    Yeah it will suck if Axanar is not made, but sometimes you have to have a “victim” for the greater good

    1. I doubt it. Just ST Beyond makes hundreds of millions. A few millions to stop fan film .. i am sure they can afford that. In fact, even if willful infringement is the result, and there is a big judgment, Alec will just declare bankruptcy and CBS cannot collect.

      I think CBS already knows that (that there is no money in it for them) and they are doing it for the control. And if Alec loses, it is much easier for CBS to sue the next fan film since there is precedent.

      I really don’t share your optimism that non-willful infringement is a win for the fan community … except allowing Alec to dodge a bullet.

      Not only Axanar will not be made, i bet no more “professional quality” fan film will be made.

  17. If CBS/P really wanted DISCO to succeed, why saddle it with the acronym (in usual Trek format) “ST:D”? 😛

  18. Happy Birthday Mister L.

    You are in an exclusive club now. The only way to enter is live for half a century!

    Enjoy your day!!!!!

      1. Congratulations!

        I guess now I know that we are very close in age … i just turned 50 last less than a month ago.

        Hard to imagine that I have less than half of my life to live now 🙁

        1. What…you don’t think you’re gonna make it past 100, Narius? George Burns once said, “I hope I live to be 100 because it’s a very healthy thing to do. Very few people die who are over 100.”

  19. I seriously hope for the Axanar team that there truly are more ways to win than to lose! CBS needs to accept the fact that what they currently hold rights to is much larger than they are. Hostile judge or not – from what I’ve seen above, Axanar has a fairly good chance of success. I’d hate to know that Prelude was it. I mean – it’s indicated in its name: PRELUDE. You’d expect there to be more! My hopes and prayers are with their team! Axanar must continue!

  20. Would Alec be legally prohibited from making the film if it is ruled a non-willful infringement? If so would Alec appeal and risk the possibility of a worse defeat in the hopes of having the fair use defense reinstated by a higher court.

    1. If Alec is ruled liable for infringement, even non-willful, then the judge can (and likely will) issue a permanent injunction at the request of the studios. If that happens, then Alec’s only chance is to appeal for a new trial.

      Now, as I understand it (and I don’t have immediate access to the legal eagles right now), once the question of willful versus non-willful infringement is decided, the defense can ask for that question to be excluded from the next trial (and the judge will likely grant that request). The new trial would seek to determine solely the question of fair use ruled on by a jury. If that defense fails, then the previous verdict of infringement based on substantial similarity stands with the first jury’s verdict of non-willful infringement remaining still in place.

      1. That’s not correct, if that was the case every trial defendant would always pick the least amount of damages related to the case..
        If this was to proceed to the next trial (very doubtful) whatever transpires with that court would be a binding judgement! Anyone familiar with basic law should understand that ..

  21. Yes, I understand the PR reasons for why the plaintiffs would want to settle, but as you say, “A line had to be drawn and an example made”. So we have two options pre-trial as I see it:

    Option 1 CBS/P let Peters get off the hook in a settlement, with CBS/P going “We don’t care about drawing a line in the sand anymore, we can do that with the next case, should one occur, right now we only care about PR for our new series”.

    Option 2 CBS/P value drawing a line in the sand more, they see this as their last chance, they have already created this one, and they don’t want to start a fresh new one in the future. Any hard part of the settlement that allows CBS/P to save face, Peters just says “look, the trial can only getter better for me from here, I’ll take my chances thanks”.

    For me a settlement looks far more likely after this trial. CBS/P can hope for a good outcome from this trial alone, so they have their precedent set, their line in the sand to say to future fan films “this is what you get if you step over this line”, and then they can make a nice deal with Peters to say “we got we want, now please silently go away, we make it worth your while to not go for that low 20% [your figure] chance of success with fair-use”. CBS/P wins, Peters wins, everybody wins. To paraphrase again from The Storyteller, “This then presents the opportunity to allow both sides to say yes”.

    Then it only remains for Peters to decide whether he thinks he can still do better for himself, for Axanar, and for the future fan-films, to take the gamble to draw his line in the sand and continue to go for fair-use.

    We shall see…

    P.S. Thank you for your response, quite long for someone who said it was getting late and needed to get to bed. I apologise for my incoherent babbling last night, twas very late for me by the time I had caught up on the latest Axanar news :).

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