AXANAR LAWSUIT discovery ruling – what does it all mean? (Part 4)

70 thoughts on “AXANAR LAWSUIT discovery ruling – what does it all mean? (Part 4)”

1. NICE!: “So the question is: who will blink?”

   …if plaintiffs were smart, they would would settle …but smart is not what i have seen from them

   …i think this goes to the top: Moonves is an arrogant prick; I hope this will be his undoing =(

   …i think they will move forward …even now, feverishly back-dating the “original” evidence they needed to bring suite (eyesroll)

   they will be made to pay, and to look foolish, and FULLY deserve it! =P

   Rule 11 indeed!

   1. I have to agree…this is, quite literally, a “don’t sneeze now” moment.

      Still holding out hope for fan film makers everywhere that this goes in our favor!

      Doug

2. Sounds wonderful, Johnathan. I appreciate the due diligence you have put in explaining both sides without any obvious bias. As a fan,I truly hope on Oct, 31st, we get a happy settlement ruling. Like you said, its a 50-50 shot, but its something to shoot for that won’t let it get any worse. Take care, sir. I look forward to more info as it comes.

   1. I realize that I might not have been clear in forgetting to mention that a settlement would have to be a meet-in-the-middle proposition. In other words, I don’t think either side would ultimately get a payout from the other, but I suspect neither side will make zero a starting point in negotiations.

3. Speaking of “pushing the envelope”, as you put it, Jonathan…remember, Star Trek Continues is all but daring the studio to sue them. I wish I could find the relevant article, but I’m drawing a blank at the moment. I don’t want to quote them from memory, as I may inadvertently put words in their mouths when they said something else…but yes, STC is “pushing the envelope”, trying to see what they can get away with.

   I do hope their tactic doesn’t come back to bite them in the ass.

   Doug

   1. Here’s the link to that blog, Doug:

      http://fff.trekbloggers.com/2016/08/09/star-trek-continues-plans-to-make-four-more-full-episodes-hopefully/

      But remember that STC will fold everything up if the studios tell them to. They’re pushing the envelope, yes, but they’re not lighting it on fired and shouting “Viva la revolution!” I really do hope they’re allowed to release all four remaining episodes, though. They do awesome work, and I love their series!

      1. …i’d put it more like “staying the course” 😉

         …but i also hope that STC continues to keep on continuing! =P

4. I’d love to be a fly on the wall when the guys who started the lawsuit explain to Les Moonves how they screwed up. I’m sure it’ll take the lead out of his pencil.

   1. Not to mention the Redstones. If we see a mushroom cloud over the courthouse, CBS,Viacom/Paramount, or all of the above we’ll know what happened, especially with latest news out of the show Discovery.

      1. Oh, let’s only deal with one discovery at a time here, Frank! 🙂

5. I’m not a lawyer, and I don’t play one on T.V. but…

   With this latest ruling to compel discovery, CBS/Paramount has to know they have stepped in it big time! Even if they go to trial and win, they won’t get that much. This really is beginning to look like a no-win scenario for them.

   I look for them to settle – quickly and as quietly as possible.

   But that’s just me…

   1. We’ll see. The studios have a LOT invested in this lawsuit. And my guess is that, when they have their settlement meeting on Monday, neither side will offer that attractive of a settlement option. The question is: will they meet in the middle or not?

      1. No, Jonathan, they did not invest. Since they went into it blindfolded, they dissipated money in this lawsuit.
         What could then be the middle to meet in now ?
         Finding an agreement to license Axanar as a fanfilm as it could be of a book, take money from it, does not preclude from keeping all IP rights for the future. The example is already clear since no other production would have survived to challenge the studio so long.
         As I said previously, that’s the Kirk way of defeating the no-win scenario.
         Yes, the chances are slim, but not unexistant either, yes it would be a precedent (but a win-win one) that would avoid many litigations. Yes, Hollywood is watching, and that is why this fight is important. Because whatever the end is, it will be analyzed at length and used as an example of what not to do, as Star Trek is not the sole IP property exposed to fan-films.
         Attorneys would be more profitably used to find agreements than issuing unrewarding lawsuits…
         What would be the position of Alec about such a possibility of buying a license ?

         1. I don’t know Alec’s mind, and he certainly can’t comment to me on the record during the trial, but I suspect that, if the studios offered to sell him a license to make a fan film for, say, $150,000…he’d write them a check on the spot. (It might bounce, but he’d probably go out and get a loan…or auction the rest of his Propworx collection.) But yes, Alec would LOVE a license. So would Vic Mignogna and Sky Conway and Tommy Kraft and the list goes on and on. James Cawley got a license…just not for fan films. The business model for licensing fan films is, unfortunately, unproven and risky for the studios. And as I told you previously, everybody in Hollywood wants to be the second one in the pool. But no one wants to jump in first.

            1. Yep, James Cawley chose to get a license because he wanted to stop filming since he was disgusted on how many criticism he received and did not have fun anymore.
               But in doing so, he has begun the process of licensing fan-made stuff. James’ museum is presented as a reproduction of Desilu studios, but is is mostly known as the New Voyages/Phase 2 sets.
               If CBS found it possible to license Cawley, it is that they managed to handle the project he prepared and recognize that his past as producing fan-films did no harm.
               I think a question the trial should ask is why Axanar (and others series/films) could not follow the same process ?

            2. Well, the answer to that question is pretty easy. It’s a different kind of license. Museum exhibit licensees have been around for years and it’s a well-established process for getting licensed. No fan film has ever been licensed before and, therefore, it will cost the studios in research and development to create processes and contracts and to assign staff members. CBS is allowed to determine what they do and do not spend their money on. And if they don’t want to license Star Trek to fans for the purposes of making fan films, the studio is not required to defend or justify their decision.

   2. Concur all …

6. I don’t know how studio releasing their finances comes up as an issue.

   Filling sensitive documents under seal is done all the time. It doesn’t make them public. The course system would be completely broken if you couldn’t use sensitive documents in course while keeping them out of public’s eyes. It is not broken.

   It’s also not necessary to prove actual financial damages to win the case and get statutory damages.

   Finally, you’re over estimating the importance of this subject when you suggest the studio would be embarrassed to lose and have to explain the expense to “the shareholders”. CBS is a 14 billion dollar company and they probably have a hundred lawsuits going. The shareholders do not know or care about this fan film lawsuit. They care about stuff, like the P/E, the Viacom merger and stuff that actually affects share value. There is no scenario in which CBS loses their copyright or trademark over Star Trek with this case. Losing this case, which they won’t, can not have any effect on revenue.

   1. Well argued, Frederic. But let me ask you a question. You said as your last sentence:

      “Losing this case, which they won’t, can not have any effect on revenue.”

      Now, assume CBS/Paramount lose this case…just as a hypothetical (I know you said they won’t). But if the studios lose, that means, most likely, that Alec Peters gets to produce and release Axanar to the masses. If that happens, and losing this case has no effect on revenue (as you said), then doesn’t that argue against bringing the complaint in the first place? And if so, doesn’t that turn this into a frivolous lawsuit?

7. Pegging hope on two things:
   1. Minimal actual damages
   2. Innocent infringement

   Unless I’ve missed some facts, it seems to me that those hopes are fundamentally flawed in the following respects:

   ACTUAL DAMAGES
   Market harm is only one of the four factors to be weighed in a fair use analysis, and while it’s important, market harm and actual damages are not synonymous, and Jonathan seems to be equating the two.

   He characterizes the plaintiffs’ case for damages as ‘actual’ first and ‘statutory’ as a fallback. Nothing I’ve read in the pleadings backs that up.

   In fact, the law gives the plaintiffs, even up to the time that judgment is rendered, the choice of electing statutory damages instead of actual. Of course, for the defense, focusing on actual damages allows them to minimize the infringement while amplifying their hopes for a ruling of fair use.

   As one of my lawyer friends reminded me, in a copyright case, it’s the violation of the exclusive rights of the copyright holder that is the harm, and ANY profits obtained by the defendant are presumed to be damages. All the plaintiff has to introduce into evidence are the defendant’s gross revenues (which is why winning the financial summaries in the motion to compel really isn’t that big a deal; it’s standard for cases like these). It is the DEFENDANTS’ burden to winnow the financial impact down to “profits attributable to the infringement,” not the plaintiffs.

   Furthermore, Axanar focuses on the notion that market harm is only something that you can judge retrospectively; in other words, looking back at Star Trek’s financials and trying to assess the harm they suffered because of Axanar. But market harm is also about assessing the *potential* harm on the copyright holder’s future finances. CBS/P are arguing that allowing unlicensed productions to create their own works based on Star Trek — and to earn money from them — harms their potential market.

   Axanar’s argument that “oh, but we’ve earned so little compared to your billions,” is disingenuous, essentially claiming that stealing must be OK if we’re doing it from someone who’s rich.

   The very essence of copyright is that no one gets to control your intellectual property but you; no one gets to earn income from your intellectual property but you. Fair use is but the exception that proves the rule.

   INNOCENT INFRINGEMENT
   Arguing that winning the case would be but a pyrrhic victory for the studios; the burden is on them to prove that Peters willfully infringed, and short of that the statutory damages fall well below the $150,000 the plaintiffs could claim per instance of willful infringement.

   Jonathan asserts that willfulness requires reading Alec Peters’ mind and since no one can do that, he should be able to get off scott free (or at least cheaply). Trouble is, copyright law recognizes that it’s impossible to read an infringer’s mind in order to establish willful intent to infringe. That’s why the standard of proof is acknowledged from the get-go to be circumstantial — gathering sufficient evidence that Peters *should have known,* and that a reasonable person, seeing all the facts, would conclude similarly. The “but all the other kids were doing it, too” defense won’t go far with anyone who is a parent.

   Also, note that this is a civil case. The plaintiffs don’t have to prove Peters’ objective recklessness beyond a shadow of a doubt; they only have to do so by a preponderance of evidence. I’d start with that intellectual property class he likely took in law school and work my way up through the blogs, forum posts, podcasts, media interviews and witness testimony (hello, Christian and Terry!).

   Finally, Jonathan keeps trying to portray this case as a loser for CBS/P because they ultimately will see little money from Axanar, and there are a variety of reasons for that to be true, even if the studios were to win on every point. The trouble is, Jonathan fails to understand that CBS/P aren’t after money; they now know how much (or little) money Axanar has. They’re after a judgment that sends a clear message — YOU AREN’T ALLOWED TO EARN MONEY OFF OUR INTELLECTUAL PROPERTY; claiming you’re fans who love our IP doesn’t give you the right, even under fair use, to do so.

   It’s worth it to the studios to spend the hundreds of thousands (millions?) this lawsuit will likely cost them to send that message. Not simply to Alec Peters, who eventually fades away, but to anyone who thinks they can set up a commercial venture under the auspices of their “love for the franchise.” Even the staunchest fair use/transformative works people acknowledge that there’s a line you don’t cross, and the studios aim to prove by a preponderance of evidence, that Alec Peters crossed that line. A lot.

   1. Now this, ladies and gentleman, is an AWESOME response! I doubt that even CBS Deputy General Counsel Jonathan Anschell could have provided a better insight into the inner thought processes of the studios at the moment. 🙂

      And to be honest, Legal EYE, you make excellent points. And I am so glad I am not a lawyer and don’t have to face these arguments in court! I’m not sure what I would say. I suppose it’d be something like this, though…

      1. “CBS/P are arguing that allowing unlicensed productions to create their own works based on Star Trek — and to earn money from them — harms their potential market.”

      For this one, I’d likely bring up the proliferation of an ever-improving-in-quality parade of fan films on the Internet. I’d call the jury’s attention to the fact that Star Trek fan films been made and shown publicly at conventions and sold on VHS tapes and DVDs dating back fifty years (well, the VHS sales only date back to the late 1980s) and have been on YouTube since almost the beginning of the service back in 2005. Then I’d show how the fan films have been increasing in the number released each year, steadily, from a few to dozens and dozens annually. Did you know that TWELVE Star Trek fan films have been released onto the Web just since September 3rd? That’s SIX PER MONTH! (Wow.)

      I’d probably point to fan films that predated Axanar that “sold” branded Star Trek merchandise as perks, paid professional actors and tradesmen years before Axanar, built studios of their own and rented them out to other fan productions (again, years before Axanar did), and featured Star Trek veteran actors reprising their iconic roles (need I say it?–years before Axanar). I’d probably even point to the photos Jonathan Lane took at the “Star Trek: Renegades” world premiere at the Crest Theater in Westwood in August of 2015 (four and a half months before the lawsuit)–complete with a theater marquee that said STAR TREK RENEGADES, red carpet entry for stars from Tim Russ and Walter Koenig to Nichelle Nichols and Robert Picardo, Paparazzi and limos, a full theater with seats available only to donors (I donated in order to get my ticket–just like buying one, I guess), and perk sales on the stage in front of the screen before each showing of the 90-minute film. (I took LOTS of really great photos of the event.)

      That would establish the “world” of Star Trek fan films both when the lawsuit was filed and going forward. I would remind the jury earnestly that, in all that time, with a hundred different fan films and series producing over 250 hours of unlicensed fan-produced Star Trek, that the studios never once contacted YouTube to take any of them down. I would even point to the incident with “The White Iris” where CBS licensing actually contacted YouTube directly to tell them to put BACK UP a Star Trek fan film that used copious amounts of IP (even a doctored clip from an original TOS episode) because it had been taken down accidentally due to an automatic software sweep for copyrighted material.

      I’d briefly mention the guidelines only to show that CBS and Paramount are not stopping fan films but rather encouraging them while still not licensing them. Obviously, this means that the first part of your argument “…that allowing unlicensed productions to create their own works based on Star Trek…harms their potential market” is obviously not valid or else CBS and Paramount would not be permitting ANY fan film to exist–let alone condoning and encouraging them–for fear of potential market harm either backward or forward looking.

      Of course, you did say “…AND to earn money from them…” but then the burden is on the plaintiff to prove that money was earned ONLY by Alec Peters and NOT by other fan films. That assumes, of course, that you’re talking GROSS revenues (which you said you were). If it’s net, then Alec has made zero, since I believe that Axanar is almost out of money at the moment, and Alec is auctioning off his Propworx collection in order to keep the lights on. And I’m pretty sure he’s hired an accountant to thoroughly review his books.

      So if making GROSS revenue off of Star Trek IP is a problem that creates market harm, I would then point to all the other Kickstarter and Indiegogo campaigns for fan films that have also raised six-figure amounts. Before the suit was filed, “Star Trek Renegades” took in nearly $700,000 (not much less than Axanar’s $1.2 million). Star Trek Continues took in a few hundred thousand. New Voyages, Captain Pike, Pacific 201, Farragut, Horizon…the list of Star Trek fan films with “gross revenues” from crowd-funding and perk fulfillment goes on and on…even though they all wound up with zero profit, having spent every last dime…just like Alec. So I suppose the question I would ask the jury to think about then is: “Why would the studio allow all these other fan films to generate revenue if that represented such market harm to the Star Trek property? In fact, why are the studios actually ENCOURAGING the fan films of the future to go out and raise up to $50,000 each in crowd-funding going forward? Isn’t that NOT in the studio’s best interests if there is, in fact, market harm?”

      Now, it could simply be that Ares Studio is the revenue generator–and oh, if only that were true! But as I’m sure you’re aware, the studio has generated nothing so far, and by the time it’s profitable, it will no longer have anything to do with Star Trek IP. It’s been separated legally from Axanar Productions, meaning, on a go-forward basis, no revenue will be made from the studio off of Star Trek IP. And no revenue was made up until now. Alec himself didn’t take a salary so much as pay himself back for expenses. The accounting is now done on proving that fact.

      So while I don’t know if my arguments would meet the “preponderance of evidence” bar, I’d certainly try the strategy…if I were a lawyer, which I’m not. I’m guessing that Erin Ranahan will have a MUCH better line of attack (most of which is WAY above my pay grade). 🙂

      2. “I’d start with that intellectual property class he likely took in law school and work my way up through the blogs, forum posts, podcasts, media interviews and witness testimony (hello, Christian and Terry!).”

      For those of you who don’t know, Christian Gossett (director of Prelude) and Terry McIntosh (former Axanar PR director) are scheduled to be deposed this week. I’m guessing they’ll say something shocking like, “Alec knew he was committing copyright infringement and did it anyway.” Of course, the plaintiffs don’t have to fly all the way up to Washington State to prove that. Just look at the Axanar Kickstarter and Indiegogo campaigns, which say, “‘Star Trek’ is a licensed property of CBS and so they have the final say in any Star Trek venture.” Case closed, right?

      Well, if it were that cut and dried, I doubt Winston & Strawn would be taking this case on pro bono. After all, it’s a guaranteed loss for their firm, right? Well, I’ve spoken at length about the likely defense strategy, and it isn’t as simple as “but all the other kids were doing it, too” defense. I think this is where the plaintiffs are missing the obvious. And here I will speak as a parent and use Halloween as an example because, well, it’s coming up on Monday night! (BOO!) I’ve told my son Jayden that he should never accept candy from strangers. He shouldn’t walk up to strange houses. And yet, on Halloween, all the kids are doing just that…and we let them! Now, if it’s NOT Halloween and Jayden asks me if he can walk across our neighborhood, knock on doors, and ask for candy, I will tell him “No.”

      Alec asked the studios. Four times. This was even stipulated by the plaintiffs. And at no time was Alec Peters ever told, “No.” He was never told not to do this, or to do it without using Trek actors, or not to use the USS Enterprise or Vulcans or Klingons or triangular medals. He wasn’t told not to crowd-fund. He was never given an upper fundraising limit like $50,000. The studios gave him no guidance whatsoever. They only told him, “If you step over the line, we’ll let you know.” But they never told him where that line is. Now if there’s an e-mail out there that I don’t know about, or a Cease and Desist letter that was sent out, I absolutely apologize for being wrong on this point. But if indeed there were four separate meetings and the studio never said, “No, it’s not Halloween,” then when Alec looked out at the neighborhood and saw all the other kids going door-to-door asking for candy, why would he NOT also think it was Halloween? I would!

      3. “The trouble is, Jonathan fails to understand that CBS/P aren’t after money; they now know how much (or little) money Axanar has. They’re after a judgment that sends a clear message — YOU AREN’T ALLOWED TO EARN MONEY OFF OUR INTELLECTUAL PROPERTY; claiming you’re fans who love our IP doesn’t give you the right, even under fair use, to do so.”

      That is a VERY valuable insight, EYE, and obviously one I cannot argue with because I don’t control the way that CBS and Paramount think and feel. The only thing that I would mention is that Alec Peters has actually LOST a lot of money on this venture, something I am certain the jury will be made aware of. And of course, Prelude to Axanar was distributed for free over the Internet, cutting off an obvious revenue stream for him. So trying to show that Alec was earning money off of your–well, CBS’s–intellectual property is going to be an uphill battle. His business straegy–give the product away for FREE and then run an expensive studio that costs $15,000/month–kinda sucks, don’t you think? I’m sure the jury would think Alec was crazy…or just an obsessed Trekkie (since we’re all kinda crazy, right?). And of course, it goes back to that Halloween analogy I just made. Other fan series created their own studios and have charged others to for use (if for no other reason than to simply cover electricity costs). There’s no proof Alec was going to do otherwise with Ares Studios, and he certainly didn’t do it before the lawsuit. If anything, thanks to the fact that Alec was given NO guidance at all from the studios that building a studio of his own was a no-no (when others were being allowed to do so), perhaps the jury would accept a “Well, NOW he sure knows! And you can be sure he’ll never do it again!” argument. After all, if I’d never told my son not to go to other people’s houses, knock on their doors, and ask for candy, how would he ever know not to do it? How can I punish him for breaking a rule I never gave him? Now, if Alec tries to build ANOTHER for profit studio now that he knows it’s over the line, THEN he should definitely be shut down. But with no warning the first time and lots of others doing the same thing, is it really fair to penalize him for breaking a rule he didn’t know existed…at least not for Star Trek fan films?

      Yes, copyright infringement is a no-no…usually. Except on Halloween. Was it Halloween for fan films and Alec Peters was just another kid putting on a costume and saying “Trick or Treat”? I guess we’ll see what the jury says.

      (So, since I’m not a lawyer…how did I do, Legal EYE?) 🙂

      1. “Alec asked the studios. Four times. This was even stipulated by the plaintiffs. And at no time was Alec Peters ever told, ‘No.’ He was never told not to do this, or to do it without using Trek actors, or not to use the USS Enterprise or Vulcans or Klingons or triangular medals. He wasn’t told not to crowd-fund. He was never given an upper fundraising limit like $50,000. The studios gave him no guidance whatsoever. They only told him, ‘If you step over the line, we’ll let you know.’ ”

         Ah, it dawns on me why C/P is suing. It’s because Alec asked in the first place. The other fan films just made and released their films, but Alec asked ahead of time. So they probably got annoyed that someone disturbed their 50-year nap.

         1. Not necessarily. Other fan filmmakers reported talked directly to the studios, as well, including James Cawley and Vic Mignogna.

   2. Fascinating read, Legal EYE. It was even more interesting when Carlos Pedraza posted it over 5 hours ago as a comment on the group he runs with Hinman. So, I wonder who you are to be carrying his water over here, as I don’t think it’s Carlos’ style to post anonymously. Perhaps someone who has falsely claimed to work for CBS Legal in the past?

      Moreover, I wonder just who Carlos is carrying water for, since I doubt that he wrote that either…..

      1. Whoever wrote the comment–Carlos, one of the studios’ legal team members, or Bob Dylan–the fact is that it was an excellent piece and very politely and intelligently presented. Would that everyone would send something so civilly! I hope I was equally respectful in return and that my responses are as carefully considered as I considered Carlos’ or Charles’ or David’s or Bob’s or whoever wrote that piece initially. I even shared it with Alec, I was so impressed.

         Look, this case will be significant once it makes it to trial because of three reasons: 1) it’s Star Trek, 2) it’s a David and Goliath story, and 3) it will determine how fans fit into the new world of do-it-yourself media when it comes to studio-owned content. The case already getting a lot of attention from fans. In the last six days, my blog has seen more than 20,000 page views (nearly all of them the blogs about the Axanar lawsuit). I’m usually lucky to get 500 visits a day, so Axanar has been a 600% increase in web traffic for me. (Man, I should really install Google Ads!)

         Now, this doesn’t mean I’m going to become “All Axanar, All The Time.” Tomorrow is a blog about Starship Tristan’s latest episode release. I just wanted to point out how much fans care about this case. I can’t imagine interest is going to lessen once it goes to trial.

      2. Hubcap your up to no good again as always.

         1. I miss apostrophes…don’t you? 😉

            1. #puncuationfail

               As to what I’m up to, did I lie in anything I said?

   3. Too bad there won’t be an opportunity to pull an NFL on P/C.

      Jury: “Yeah, yeah, we find that Axanar is in violation of copyright and we award $1 because YOU SUCK.”

      1. Well, we can but dream, Frank

8. If CBS does not want certain info being made public they may come up with a compromise that may involve allowing Axanar to continue on the condition that CBS and paramount will have distribution rights enabling the plaintiffs to make money from the movie.

   1. Nice dream, Borg, and one I would love to see happen. But I think the chances are slim.

9. Another Excellent piece Jonathan. I really have been enjoying your articles. Aside from being well organized and written, and always make me laugh to boot. Not reboot mind you. Frankly, I don’t understand those interested in Trek footwear.

   Anyway. I have always believed this was winnable for Alec, so I still believe the lawsuit is an excellent way to set precedence for the fan film community. Win, lose, or draw (in pencil, not in pen) the studios will be thinking twice before suing a fan filmmaker again. Not only because winning will become more difficult each time, IP attorneys will line up to make a name for themselves to try it. Studios will have to reevaluate their way of doing business when it comes to fan films. They may have to just accept fan films for what they’ve always been, a free way to gage the interest, keep interest, and know what to do better for their fans.

   1. Thanks, Charles. My next few blog posts are going to be very SHORT. I am exhausted!!!

10. A psychology degree?? Fascinating!
    I guess I can see where that degree could be a natural help in marketing. And a whole lot more fun too. It also explains alot about how you approach things, like project “small access”.

    Now, my concerns about the lawsuit are, what the studio has done by pushing back the start of STD till early spring. Maybe they might claim that somehow is caused by Axanar, causing the studio to delay production. But, they are the ones who urinated on the fans, by attacking them directly. I just can’t see how any fan produced material could ever hurt the studio’s. Seems they are the ones making bad decisions by NOT listening to what people really want. I think the studio’s really stepped in it big time, never imagined that Axanar would fight back. And now, they are desperate to find a face saving way out.

    As always, thanks for keeping us all informed. I’m enjoying this immensely.

    1. Psych major and graphic designer (I have an AOS degree in the latter). My brother and I owned a multimedia company throughout the 1990s where I served as Creative Director. Since then, I’ve worked in information architecture, user experience design, and business analysis. And I worked for Willy Wonka. I’ve also written a professionally-published book about a real-life Santa Claus. Oh, and I wrote “Starship Spotter” for Pocket books. And I’ve worked for Star Trek licensing as a fan trivia consultant for nearly a decade…and for Rod Roddenberry as the same thing. And soon I’ll be changing careers and going into teaching. Never stop the bus–just change Lanes! 🙂

       As for the delay of DISCO, that’s not the fault of Axanar or any fan film. There’s issues in Toronto of a lack of qualified industry talent because of too many productions moving up there and slow processing of work visas for Hollywood professionals to relocate. DISCO literally didn’t have enough people to get its first episode out by January. Most of the industry knows this, so it’s a non-starter as an argument in court.

       1. A book about a real-life Santa Claus? I wonder if Mick Foley has a copy…..

          1. A real bearded Santa who’s worn the red suit for 25 years. Here’s the link: https://www.amazon.com/Being-Santa-Claus-Learned-Christmas/dp/B00D9TR7LY?ie=UTF8&keywords=being%20santa%20claus&pldnSite=1&qid=1430810015&redirect=true&ref_=sr_1_1&sr=8-1

             1. Johnathan I’m curious what you’d think of the studio’s possibly using angry fan letters responses stating they would Boycot cbs/p as evidential proof that axanar did “Financial” Harm (which I realize may start a chicken or the egg debate in the court room)

             2. There were no boycott threats made before the lawsuit due to the existence of Axanar (at least none that I am conscious of). The studios had to have a direct casual reason for suspecting financial damages to their property (according to a Supreme Court ruling in a prior case). And even if they did receive a few letters pre-lawsuit saying, “Axanar is so good that I’m NOT going to see Star Trek Beyond” or watch any new shows!” the studios would still need to demonstrate why they believed the writers of these letters actually followed through on their threats (minds change and sometimes threats are hollow), and more importantly, how many of these letters they received. If the answer is “six,” then Alec owes the studios about a hundred bucks. If the answer is “200,” then he owes the studios about $3,000…assuming everybody made good on their threats.

                In short, I don’t think such a strategy would get the plaintiffs very far, Allan. But they’re certainly welcome to try.

11. Jonathan, I think you hit the nail on the head here: “and they really don’t like Alec Peters all the much (or so I’ve been told by somebody who knows somebody–take from that what you will).” This has been all about Alec, which is weird, because if anyone supported Trek more, I would like to see who. It does say though that this whole illogical fixation with nailing Axanar has been a huge expense for what? Ruining Alec is the prize someone decided on. The fix has been in for a long time, and is supported by the very nature of their “we’ll tell you when” reply to all the “Are we in trouble” questions. Why? That may be laid out in the stuff they get, if it is actually ALL the stuff. Even though they are supposed to cough up all the stuff the Judge orders, how is he to know they “forgot” to include the emails from whoever saying ” I don’t care what it takes, kill Axanar” and then trying to manipulate everything to suit. I am hoping that whoever ordered the hit, is overwhelmed by a survival instinct by CBS to save their collective rears and settle before they DO have to air the dirty laundry. Remember the Sony breach? Lots of heads rolled and Sony took a lot of damage, let alone the loss of their on line platform for a month of retaliatory hacking. Not that hacking is involved here, but the email dump has a way of not getting filtered in time to catch ALL the rotten fish. It goes back to just what is in their interests,as there are some really good arguments for how bad this can get for CBS, and Axanar does not a have a lot to lose. The often mentioned settlement of “Let Axanar go, work with them, and then try to make some money off it” is their best choice, and would help salvage the fan base they have lost. I am sure they HAVE lost fans, and that their actions were the cause, not Axanars existence. The sheer vehemence of the Anti Alec gang has shown that this is something, someone, some-wheres, is hard-over on, so do they have more clout that the alternative? I know this position may not go over well, but the whole logic of this debacle does not fit unless someone with a HUGE grudge is factored into it.

    1. It’s not so much a grudge as a deep-rooted concern. Carlos Pedraza, who is likely in touch with at least one of the lawyers involved in this case and therefore knows what they’re thinking, pretty much nailed it in his long argument from yesterday. And since I also know what the CBS lawyers were thinking earlier on this year (no, I can’t tell you how, so believe me or don’t on this), a big factor in their decision to sue and not settle was Ares Studios. They imagined this huge facility and this upstart fan financing it off of their IP. When the CBS execs actually went to visit, I am told, they were surprised that the facility was so small and modest (compared to what they imagined). At that point, it seemed like a reasonable settlement was possible or even likely. However, that didn’t happen. And as I said, I think Carlos nailed it. It might not be Alec who builds a $10 million studio next time, but CBS and Paramount don’t want there to BE a next time. So the studios are throwing everything they have into making an example of “the little guy” before the phenomenon of fan films produces a not-so-little guy in the future.

       Of course, they could have solved all of this simply by writing into the guidelines, “Thou shalt not buildeth thy own studio using our IP!” Woulda been cheaper. 🙂

       1. I’ve always said if it weren’t Axanar it would’ve been someone else. They were looking for a scapegoat, nothing more.

12. Just picking out one point you made above “What this means is that CBS and Paramount needed to have already collected some hard evidence or a solid indication that Axanar had or will directly harm them financially in some way.”

    A lawyer who works on copyright cases had this to say about that:

    “The PLAINTIFF DOES NOT HAVE TO PROVE FINANCIAL HARM. Even if CBS was not electing statutory damages, the measure of damages for copyright infringement is the defendant’s profits PLUS any actual damages suffered by the plaintiff. The plaintiff is still entitled to the defendants profits even if the actual damages suffered by the plaintiff are ZERO. This idea of financial harm is really only an issue because it is an element of the analysis of the fair use defense – but that is the burden of the DEFENDANT to prove.

    So I don’t see any situation where the judge would be bitching out the plaintiff because they didn’t have proof of financial harm – they don’t need it for their case in chief, and it is not their burden to provide any evidence of that with respect to the fair use defense, as that burden is on the defense to prove that there was no financial harm (in addition to proving that the other fair use factors weigh in their favor as well.). So, again, this all seems like bullshit.”

    This will certainly go to trial. The red line for both sides appears to be the studio. Alec won’t give it up and the Plaintiffs want to ensure he loses it. My personal hope is that after Terry’s deposition on Friday it will be clear to Alec and Ranahan that they have no hope of winning, either now or on appeal, and they’ll finally accept defeat and settle.

    1. I just reported that the judge said. He was the one who brought up a Rule 11 violation, not me. Once I have the full transcript, I’ll post it for you to read, Sandy.

13. …ok, but what about this: jj’s proclamation that the lawsuit would be going away… how will that play…?

    it was obviously planned, so it was certainly approved by someone, before it was put on a teleprompter to be used to manipulate everyone in attendance, and presumable the world-wide fan audience…

    the audience was VERY happy… Alec was STOKED out of his mind… =P

    everything was happy-happy joy-joy… =)

    but it was all a premeditated LIE. …they hoped to fool us all, and especially Alec into dropping his defenses!

    i doubt it’ll result in anything other than embarrassment for whoever ends up being the scapegoat for this LIE… but it feels like (in my Star Trek Fan’s heart) it should be some form of FRAUD =(

    1. That’s not exactly how it happened, Not Herbert. There was a lot more going on behind the scenes than simply feeding J.J. Abrams a lie to tell the fans. I do hope that one day the entire story can be told in public. Maybe when Alec Peters makes his documentary. 🙂

       1. …well, d’uh

          …jj was in on it for starters =P

          …sounds like u know something?

          gotta save it for your deposition? =(

14. Well Jon, do you ever get tired of being wrong? Not only has Alec and Ranahan failed to produce a huge amount of docs they also failed to produce their financials. The then attempted to claim privilege on the financials because of haters.

    If you thought the hearing was a big win then this is a huge loss. From the new filings:

    “There here is good cause for granting ex parte relief. The extent of Mr. Peters’ failure to produce documents was recently revealed when Plaintiffs took the depositions of Mr. Peters and Christian Gossett (the director of Mr. Peters’ film, Star Trek: Prelude To Axanar). Mr. Gossett is a third party witness who was
    deposed on October 22, 2016, and he produced thousands of pages of emails and other documents, primarily constituting communications between himself and Mr. Peters, virtually none of which were turned over by Mr. Peters, virtually none of which were turned over by Mr. Peters.

    Prior to and following Mr. Gossett’s deposition, Plaintiffs repeatedly advised Defendants’ counsel that Mr. Peters appeared not to have turned over documents relating to his creation of his independent Star Trek film project, including emails, social media and internet postings and other materials. Mr. Peters’ counsel has refused to search for any additional documents and to certify that Mr. Peters has produced all responsive documents. Plaintiffs would like the opportunity to depose Mr. Peters regarding all of the relevant documents in this case, after he has turned over those documents.

    Plaintiffs also need to be able to depose third party witnesses regarding the financial document prepared by Mr. Peters’ accountant. Finally, a privilege log necessary so that Plaintiffs have the chance to challenge any documents designated as privileged.”

    1. “Well Jon, do you ever get tired of being wrong?” Not according to my wife! 🙂

       Sorry I took so long to approve this comment, Sandy. I’ve been working feverishly on my blog about Thursday’s filing. You’re welcome to read it. My apologies if it’s not as sparkly as I usually write (and quite a bit longer). I’ve been fighting a cold all day, and my mind wasn’t quite up to my usual literary standards. But it’s there nonetheless for anyone who wants to read and then lambast it on this or that Facebook group. Enjoy!

15. This is hilarious too Jon. So the accounts have NOT been audited, they’re afraid of the haters (best thing I’ve heard all day), and Ranahan is accusing them of leaking docs (Carlos does not get his info from them BTW).

    “We are not willing to de-designate the financial information, which contain Alec’s preliminary Quicken notes, is not verified by any accounting, and is currently in the process of being reviewed by the accountant. Given the sensitivities with donors, which has stemmed largely from the delay that this lawsuit has caused, there is serious harm that is threatened to Defendants if these preliminary documents were shared with and misused by those that have a personal vendetta to destroy Alec’s lifelong fanhood, finances, reputation, and dreams of creating Axanar. This includes not only Plaintiffs, but third parties who have had extensive discussions with Plaintiffs and seek to leak information deemed confidential in the lawsuit in an effort to bring down Alec. Obviously the confidentiality obligations we have agreed to amongst counsel have not been perfectly followed by your clients (e.g., you made clear that the fact of having the initial settlement discussions was to remain confidential, but then your client publicly announced that settlement talks are happening; Van Citters was shown a document marked highly confidential during Alec’s deposition). Also you have already included in public pleadings certain information from these documents without filing them under seal. Defendants are not comfortable de-designating that document, including based on the carelessness that Plaintiffs have displayed for confidentiality agreements.”

    Ranahan, 10/27/16.

    These filings pretty much invalidates most of your analysis from the last few days. It also shows your source of info is lying to you. They only forgot to hand over one email my ass.

    1. Actually, it shows that I don’t have a mole like Carlos does. I was working solely on what was shared in court last Friday, which was that only a small amount of e-mails from CBS were missing. So that is what I told my legal eagle and what he/she commented on.

       The results of Christian’s deposition were supposed to remain completely confidential (by legal requirement), and yet somehow Carlos and many others of you (including your “insider”) seemed to know things that the court has ordered not to be shared publicly. That’s troubling, to say the least! I wonder if the defense will bring that up in their response (I assume they will be filing one). They can actually use me and my “misinformation” as proof that at least one side is playing by the rules and not sharing confidential information. It’ll be interesting to see if anyone on the plaintiffs’ side gets into trouble with the judge.

       1. The defense soooo did bring it up! They didn’t name Carlos specifically, but they brought up that the plaintiffs appear to be having outside parties carry water for them!

          1. If the defense has any hard proof, it could lead to sanctions. But we’ll just have to see.

       2. No one has a mole in the legal team Jon. There are many ways for that info to leak. For example (and I’m not saying this is the case since I don’t know him) Christian could have simply told someone after his deposition that they were surprised he turned over so much that they didn’t get from Alec. That wouldn’t breach confidentiality because he’s not bound by it. Stop looking for conspiracies. It’s making everyone look bad, including Ranahan.

          1. Some leaks happened BEFORE Christian was deposed, Sandy. But don’t take my word for it. The defense is now on record with those accusations in their latest filing with the court. So it doesn’t matter what you or I say anymore.

             1. Others have been deposed too. From the court filings it could easily have been Mr Citters telling someone about missing emails. These lawyers are highly paid professionals, they won’t risk their case leaking information to the press. You need to take off your tinfoil hat and stop thinking there’s a big hater conspiracy.

             2. JVC is an employee of CBS. He is not allowed to discuss what was learned during discovery. If he thinks he can, then my former boss needs to check with his current bosses. As I mentioned in my latest blog, sanctions have been requested by the defense. This isn’t a game, Sandy.

             3. I’m not saying it was J Van, I was just using him as an example.

                Here’s a question I’d like you to put to your mate Alec: If, as you’ve been harping on about the last few days, your newly audited finances are so good and account for every dollar spent and you’ve donated so much of your own money to Axanar, why keep the books secret? Why feed the haters with the secrecy and contradictions in you posts and just come clean. If you have nothing to hide, why are you hiding?

             4. I can’t speak for Alec, but I can quote from Erin Ranahan’s e-mail in Exhibit G:

                “Given the sensitivities with donors, which has stemmed largely from the delay that this lawsuit has caused, there is serious harm that is threatened to Defendants if these preliminary documents were shared with and misused by those that have a personal vendetta to destroy Alec’s lifelong fanhood, finances, reputation, and dreams of creating Axanar. This includes not only
                Plaintiffs, but third parties who have had extensive discussions with Plaintiffs and seek to leak information deemed confidential in the lawsuit in an effort to bring down Alec.”

                I think the keyword here is “misused.” Obviously, the detractors have little knowledge of how the law works (as you yourself have proven time and again, Sandy). So why should anyone believe that you have any better idea of how proper accounting works? For example, if Alec spent donor money to get new tires for his car, would that be considered a reasonable expense for Axanar and spending of donor funds? I’m guessing you guys would jump all over that (I think you have already). But the fact is that such expenses are indeed justified as legitimate if the tires were needed to drive to multiple locations intended to market and publicize the project with the intention of generating more donations.

                Other fan series don’t share their financials publicly (unless they’re filing for a 401c(3) status with the Federal government. Why demand one from Alec? That last time he tried to be transparent, look what happened. Why step on that land mine a second time?

             5. Come on Jon, now you’re just being obtuse. First off, Continues books are public as part of their 501 status. That’s really besides the point though.

                Time after time Alec has claimed he’s running the most transparent fan film ever and that every dollar is accounted for,etc, etc. Well bloody prove it then! It’s a bloody fan film, not a major corporation. No, it is absolutely not alright if he bought tires for his car! Making a fan film is not and should not be a damn job! Don’t you get it? That’s why everyone is so incandescent about this. It’s a hobby. People do it for enjoyment and for the love of Trek. They don’t do it to enrich their lives, pay their expenses, or buy tires for their bloody car! No other fan film producer does this.

                If he has nothing to hide he should stop acting like it.

             6. Noted and logged, Sandy.

                I’ll let others explain proper accounting practices to you. 🙂

16. Your comment about things going on behind the scenes underlined my fascination with the Affair Axanar. It is a real live “movie” with thrills, chills and high (legal) adventure. And further it’s a complex script with the good guys and bad guys subject to interpretation and bias so it has the wonderful ambiguity of some of Babylon 5’s characters.

    And the case has already made the list “10 Copyright Cases Every Fan Fiction Writer Should Know About”. Agree or disagree with the points made in that piece but all should certainly agree “Fan fiction authors everywhere – especially the really good ones – should pay attention to the outcome.” http://www.mondaq.com/unitedstates/x/538096/Copyright/10+Copyright+Cases+Every+Fan+Fiction+Writer+Should+Know+About

    1. Good link. Thanks!

17. Boy, am I disgusted that the defendants withheld emails in regards to the case. SMH and then to read within those emails that the defendants try to throw Starship Farragut and Star Trek Continues under the bus for possible copyright infringement. For a “fan film” that states they support fan films, the truth comes to light. Since you’re praising that Axanar has chance for the last few day, what does the FFF have to say about this discovery? Curious minds would like to know

    1. I’ve posted a full blog about this latest filing earlier this evening. Check it out–I wrote it with a bad head cold. (I’m still sick as I write this!) 🙂

       That said, I didn’t hit the STC or Farragut comments in the blog because it was already way too long. However, it’s a well-known fan film feud between Alec and Vic Mignogna (who used to work together, believe it or not!), so I’m not surprised to see Alec trying to screw over Vic. Vic isn’t much nicer to Alec. Personally, I like them both and wish we all could just get along!

       As for Farragut, no idea on that one. But I do know that John Broughton was not one of Alec’s biggest fans even before this e-mail came out justifying John’s opinion. Again, I’m going to stay out of it. I do know that there are quite a number of fan film producers who like Alec a lot, as well. I just wish there were more.

18. …i don’t think there is a “conspiracy” here; but it DOES look like dirty pool by the plaintiffs =(

    sanctions INDEED!

    …and didn’t i say that they would be dragging their feet on the discovery docs…? =P

    1. I don’t know what was or was not delivered on Friday, and Alec isn’t allowed to tell me (even though I’ll be on a panel with him in just a few more hours).

19. …true, but it looks (to me) like the plaintiffs spent their time/effort on subterfuge rather than honest disclosure… =(

    good luck on your panel! =)

    1. The panel went well. The six members of our audience really enjoyed it! (Jayden was number seven, but he spent most of the time playing on his iPad Mini. 🙂

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