If it’s Tuesday, that can only mean one thing: new documents in the AXANAR lawsuit were filed at midnight last night!
But seriously, folks, these will likely be the last Axanar filings for the foreseeable future. In two weeks (December 19…a Monday, of course), attorneys for both sides will appear in court in front of Judge Klausner for oral arguments, each supporting their clients’ motion for summary judgement. After that, the next document we will see will be filed by the judge himself…and it’ll either be good news or bad news (or both!) for the two sides in this case as he makes his final rulings on these two motions.
In the meantime, here’s what came in last night: REPLIES. Three weeks ago, both sides filed motions for summary judgment (the plaintiffs filed a partial motion…more on that in another blog). These documents each asked the judge to rule on facts that were not in dispute (in other words, so obvious that any jury would reach the same conclusion, so why even waste the time to argue about it in court?). Of course, neither side agrees on what these “obvious” facts are, which kinda suggests they’re not quite undisputed. However, if the judge is convinced by the arguments of one side or the other, he could, conceivably, end this case before the trial even begins, effectively handing a victory to one side or the other.
After filing their motions, each side was allowed, two weeks later, to provide a second filing in OPPOSITION to what the other side had argued in its motion. And finally, a week after that (which was yesterday), each side could provide a brief REPLY to that opposition filing. Here are links to both of those replies from yesterday:
Unlike the previous summary filings (each of which was 20 pages long, a court-mandated limit), both of these replies is only 10 pages long (also a mandated limit)…and each is actually worth your time to read. Both attorneys make excellent and very solid points. The plaintiffs come across as quite angry and aggressive, making many strong statements and using some convincing analogies. The defense, on the other hand, while still certainly aggressive, is more nuanced in applying some precise letters of the law. It’s a battle between a hammer and a scalpel.
If you read both filings in the order I’ve supplied them (plaintiffs first), you’ll finish the first reply and likely think, “Well, this is an open and shut case! There’s no way the defense can argue their way out of it.” Then, if you then read the defense reply, you’ll likely think, “Hey, not so fast! There’s more here than meets the eye.” (Well, not all of you will think that, but I know that I did.) Try it if you have the time, though…it’s fascinating!
And if you don’t have the time, later on this week, I’ll write up one of my always-popular analyses of these two replies. And since they’re both half as long, maybe I’ll be half as long, too!
In the meantime, if you’ve missed any part of this case so far and want to backtrack on all the many, many, MANY blog entries that have been posted about it thus far on FAN FILM FACTOR…they are now all collected in one convenient place! You can access this collection of articles from the “FAN FILM BLOGS” tab in my navigation bar and then select “Axanar Lawsuit” from the drop-down menu.
I get what you mean by thinking that Axanar wouldn’t stand a chance after reading the Plaintiffs’ reply, and after reading the defendant’s reply thinking they indeed provide good points and have a decent chance.
I have a question which might sidetrack a bit, but it is related to the case. While reading the Plaintiff’s reply I noticed they used the term Klingonese. Having thought the term for the language was just Klingon, I did some research and landed on the wiki page. That, in turn, led me to the page of A Klingon Christmas Carol; a play performed almost entirely in Klingon that ran between 2007 and 2014. Now I can’t be certain, but I’m assuming that they charged people for the tickets to this show. There are apparently also publications. The script in Klingon, with English supertitles, a DVD recording and an official musical score were released. Again, can’t be certain but I’m fairly sure they don’t just hand those out (if they do, I’d love to know where), but anyway, how is that not relevant in this case?! There was never any legal actions against this from what I can see and find, so how is what they did be legal/alright? And I don’t mean to say that CBS should go sue them next, I fully support the Star Trek community in creating more, new Star Trek works, but their use of Klingons seems to make them money, so why did CBS do nothing there if they are so affraid of financial damages? It being just a play, I could sort of understand, but once they started releasing materials like a musical score and DVD, why no action then?
Good question. Did you read about the Klingon amicus brief?
https://fanfilmfactor.com/2016/04/28/klingons-step-up-to-defend-axanar-in-lawsuit/
I had not. Thanks for the link! A very interesting read.
“That sagging old rust bucket is designed like a garbage scow. Half the quadrant knows it. That’s why they’re learning to speak Klingonese.”
-Korax, The Trouble with Tribbles.
“You’ve not experienced Shakespeare until you have read him in the original Klingon.”
– Chancellor Gorkon, “Star Trek VI: The Undiscovered Country”
🙂
Probably because it was licensed?
Reading through them both, I came away with the impression both sides could have stated their cases a lot simpler a lot sooner. You’re right, though, Jonathan. If the law had never been challenged successfully before now, Plaintiffs’ reply would have been the slam-dunk ending to Axanar. But not so fast–Defense’s reply shows that many other courts have decided that taking the law merely on its face is insufficient to prevail. It’s going to be an interesting hearing on the 19th, that’s for certain.
Really interesting stuff here! The plaintiff’s lawyers proceed with building up the defense’s case as a legal “strawman” argument they smash ruthlessly… while the defense eviscerates the plaintiff’s case through the “death by a thousand cuts” style of combat.
I still can’t get over the surrealness of CBS/P clinging to the FASA games supplement after they decried it as false-canon at worst (and simply non-canon at best!) to the point of the license being revoked decades ago. Something so inherently “NOT Star Trek” that it was ejected away from the property and all but set on fire is now to be believed as being proof that something similar or based on it MUST be Star Trek (and consequently the holiest of Star Trek “canon” at that). Scotty had it wrong since, apparently, lawyers at least CAN change the laws of physics by bending reality so bizarrely. O.O
This doesn’t matter in a legal sense, but I’ve also had that on my mind James. The studios have long stated that books, games etc are non-canon. Now they matter all of a sudden. It just shows the total disregard they have for fans and their efforts to expand the universe beyond the core canon material.
Some interesting reading, much easier to follow than previous fillings (most likely as they are shorter and more concise) and your right both sides make some good points.
I think much of how you read the between the Plantiff and Defence filings depends on your own ideas of Copyright (which is different from what will be legally defined in court, though if it makes it that far its the layman juror who will be in part making their mind up whether it is infringing or not).
I find it interesting with W&S line about Prelude being a parody/satire piece as any time I have watched I have never once considered it to be anything but a documentary (mockumentary) meant to be set in the Star Trek universe, any humour as they point out with the Alexander character is what I could imagine being in any real world documentary (say the Veteran accounts with Band of Brothers) and not that she is a “comic relief” character.
For me reading in my own mind I think the Plantiffs have the more convincing argument, but as I say much of that is derived by my thoughts on what makes a Vulcan a Vulcan and it still could go either way in court.
Probably some more thoughts later, the information is still percolating in my head.
It’s still percolating through mine, too! 🙂
Having read both filings I have several questions about the Plaintiffs claims.
First.
Their claims that the proposed characterization of “Garth ” is not transformative.
In “Whom Gods Destroy” Garth was depicted as an insane, Ego-maniacal patient.
Who would given the opportunity, destroy any person or being that presented a contradictory attitude towards his views. Only in the last few moments of the program was he shown to have any sanity at all.
In “Prelude to Axanar”, Garth is shown to be a rational, captain faced with decisions that would affect the outcome of a war with the Klingon people. Showing that given the need , unorthodox strategies can be effective if used against an opponent.
Transformative is the only way to portray the characterization of Garth in these examples.
Second.
Why did the Plaintiffs not react prior to the filing, to other “Fan Films?” There are many which use more identifiable characters. The Plaintiffs claims would have been much stronger if they had taken action against the others that actually use these characters in their portrayals, and infringements.
Lastly.
Why the request for an obviously illegal request for Prior restraint. This in and of itself shows contempt for the law.
These and other not so obvious questions await answers in the coming weeks.
I didn’t see a question with your first point, Tanya, but your second question is a key element of this case. The reasons for the studios’ lack of action against other fan films spanning decades is, of course, known only to the executives themselves. However, I would guess that the reason would have involved not wanting to deal with the headline: “Studio sues fan for loving Star Trek!” However, that strategy of non-confrontation was only leading to more and more expensive fan films of ever-increasing quality: New Voyages and Continues, each with budgets in the five to low six-figure range; Renegades with a budge in the mid-six-figure range, and then Axanar with the seven-figure budget and a brand new studio. A line (which had never officially been drawn) had now been crossed by fans, and the studios decided to change the unwritten rules. They sued. Are they regretting that decision? Hard to know just yet…
As for your last point, the answer is simple: the plaintiffs don’t believe their request is illegal. They probably think the defense’s counter-argument claiming first amendment rights violations is nothing but poppycock (or a variation on that term involving bovine manure). And we’ll just have to wait and see who gets bragging rights when the injunction is either granted or denied.
Win or lose, I suspect CBS/Paramount is likely considering a new legal team. Or at least a strong rebuke for them, as well a strong internal shuffling.
No matter the outcome, I bet SOMEONE is going to be a sacrificial lamb/convenient(and likely manufactured) scapegoat after this PR train wreck.
With a loss, perhaps. With a win, I suspect CBS General Counsel Jonathan Anschel will be taking a bit of a victory lap.
There was so much redacted, presumably because it is under non-disclosure, in the plaintiff’s filing that I got a bit grumpy about missing out on the “good stuff”.
And somewhere during the process I realized why this is so fascinating. I’ve read enough so that I now look to spot a formula: the plot starts with innocent events, gradually turns darker and darker with the bad guys seemingly in the ascendancy when somehow the good guys find a way to snatch “victory from the jaws of defeat” a bit before the end of the book and then all is good. We don’t know how this battle will wind up and that has my attention.
There’s also a fun sufi teaching story that applies entitled: You’re Right
Judge Nasrudin was listening to a case. After hearing the plaintiff present his side, Nasrudin remarked, “You’re right.”
Then, after the defendant had presented his case, Nasrudin again remarked, “Yes, you’re right.”
Nasrudin’s wife had been listening to the case, and remarked, “that doesn’t make any sense—how can both the defendant and palintiff be right?”
“You know what?” Nasrudin responded. “You’re right, too!”
LOVE that story! 🙂
Hopefully, the judge got the un-redacted versions.
I believe so. The redactions are intended for the general public and simply keep confidential anything said during discovery.
I, too, found myself saying “Yep, good point.” several times while reading the plaintiff’s response. And still finding myself saying the same thing while reading the defense’s response. I would love to be on that jury to hear both sides argue the case from their two extreme positions.
But in my ending analysis, after reading both, I found the concept that plaintiff’s use of existing and known astronomical ‘stars’ like Izar, pre-existing Earth names like Soval, Garth and Vulcan as well as the descriptions of ‘Vulcans’ which easily could be compared to the ‘Beatles’, the ‘Monkeys’ or any elf ever seen on screen was somehow ‘their own IP creation’ and copyrightable just plain ludicrous. The fact is, almost everything IN Star Trek was derived from other sources so as to be ‘relatable’ to a ’60s audience. And now they claim to own them?
And that’s not even mentioning the fact that many of these so-called ‘copyrightable’ elements were never copyrighted! Does it make no difference, as far as copyright law is concerned, that those copyrightable elements were never copyrighted and then arguing they are somehow covered (by default) by copyrights filed for an episode title itself? If so, there would be no reason to copyright ‘Captain Kirk’ and/or ‘Mr Spock’ in view of the fact that they both were covered by each and every episode title ever copyrighted in Star Trek!
In the words of the venerable Mr Spock, himself, “I find your argument strewn with gaping defects in logic.”
In a response on a different blog post (can’t remember which one now), I compared Soval to Sarek. Take away the “Spock’s daddy” and “married to a human” and try to find a significant difference between the two characters as delineated by the Star Trek works. In other words, would a description of Sarek for a copyright registration be able to be used, word-for-word, as a description of Soval? “Vulcan ambassador, arrogant, stubborn, dislikes humans but ultimately comes to respect and admire them, pointed ears and eyebrows, bowl hair cut, stoic and emotionless.” Did I just describe Sarek or Soval?
And that’s why Soval likely isn’t copyrightable.
Interesting. It may well go to the crux of why CBS/P could not register specific copyrights for every element ever seen in Star Trek over the last 50 years. Aside from the fact that attempting to do so would be time consuming and probably expensive (which is no excuse), they probably knew it would be impossible to ‘delineate’ each element enough to satisfy copyright requirements. Moreover, they never believed it would ever be necessary as there is no way they could have predicted the events of ‘today’ (the lawsuit) 50 years ago. It could be argued that they should have seen this coming as fans began making their own Star Trek fan films over the years but again they probably never thought it possible a fan film would one day raise 2 million dollars from just fan donations.
The lawsuit seems to be a perfect storm of what the IP owners should have done but didn’t.
While other fan films may have cracked the seal on Pandora’s Box, ‘Prelude’ really opened it. But now the ‘cat is out of the bag and CBS/P is trying to figure out how to herd cats! (Was that a mixed metaphor?)
I would still love to be a fly on the wall in that courtroom!
The trial is open to the public, IDIC. You’re welcome to sit and watch. I’m going to try to go for a few days myself if I can manage it.
Having read both, it seems to be a war of the general versus the specific. Is it just me, or does the Defense get a lot more specific with respect to citing case law and prior rulings? Would anyone be surprised if the portion of the case regarding the not-yet-made film being dismissed, leaving the rest for a trial?
That request is on the menu of things being requested by the defense. We’ll know in about two-to-three weeks!
Not everyone will see this on techdirt or Facebook, but to me it explains much about the Axanar suit.
CBS Sues Public Domain For Existing
Okay fine, CBS hasn’t sued “the public domain” — but at this point I suspect that’s only because they haven’t figured out how to do so. In the mean time, they’re suing a YouTube channel for copyright infringement after it posted sixteen public domain episodes of the Andy Griffith show. How, you ask? Isn’t the public domain the, uh, public domain? Apparently not if you get creative with your lawsuit:
https://www.techdirt.com/articles/20161205/09014436193/cbs-sues-public-domain-existing.shtml
Yeah, I saw that. It’s really fascinating and says a lot about the Loeb & Loeb approach to copyright infringement lawsuits. If CBS loses both Axanar AND this Andy Griffith case, it could well send the top brass at CBS into a panic. I suspect they will then initiate a full-on inventory of everything they own and don’t own. Any show moving into the public domain or already there will get registered or re-registered. Characters will be registered, as well. Hundreds of thousands to millions of dollars will be spent.
And it’ll all be solving the wrong problem!
What CBS continues to miss is that there are ways to monetize the fact that fans are utilizing their IP. Yes, in a perfect world, CBS would want to control all of their IP and license everything. But the world is changing. Come up with ways to make money in new and different ways, CBS…we Trekkies even have a whole bunch of win-win ideas for you…and they aren’t even proprietary! And because they’re not proprietary, at some point, another studio will try them out before CBS does, and then they’ll be first out of the starting gate. And just like All Access is trying (too late) to stake out territory Netflix has already claimed, so too does CBS run the risk of losing out once again while they’re busy registering every copyright they can and preparing for the next six-figure lawsuit.
Just a humble prediction…
A few thoughts.
re: IDIC Sometimes: It is true that Garth is named after a star…it is already well estaished that names in and of themselves are not copyrightable. But it has been made clear that Alex specifically portrayed the character from a specific episode of Star Trek. Not some guy in space who just happens to have the same name.
It is also well established that establishing copyright does NOT require a legal filing for every element portrayed. It is not nor ever been required for a novelist to make a legal copyright document for every character location or situation. The specific legal requirement to copyright Soval or Garth of Izar or a D7 just does not exist. It doesn’t.
The bigger question…as mentioned by Jonathan…is are these characters sufficiently defined/delineated to be a uniquely copyrighted element. This will be determined by the judge or jury.
Regarding overall infringement…to my mind it is mostly irrelevant if Garth and Soval specifically are copyrightable or not…as there is no real argument that the piece (prelude) as an entirety is(and was intended to be) a piece of the Star Trek universe.
Also…it has been made clear by the defendants that the pointy eared characters are Vulcans…from the planet Vulcan…that happens to look just like the portrayal in movies and TV. Alex has not depicted pointy eared elfs in space. He has depicted Soval…a very specific (albeit minor) Vulcan character.
Regarding the FASA element. It doesnt matter that this material has been rejected from a ‘canon’ standpoint. It is still copyrighted material owned by cbs/para…that they believe has been infringed.
I like your post from 1:27 Jonathan. I think that really sums the case up. The previously unspecified line has been crossed. It is about being clear that certain activities will be tolerated , certain will not. Alex crossed that line big time (unfortunately for him).
IMO it is likely some items will go to trial. The most likely elements being the money that Alex made and was that used for (or will contribute to) direct personal gain (profit)…either now or in the future. The number of specific infringements (to calculate damages).
There is little doubt (IMO) that the copyrights were infringed, and any of the fair use arguments will not apply.
Also…that article on Andy Griffith is interesting. CBS is totally in the wrong. There could be some specific trademark issues the poster has to be aware of…but public domain is public domain.
“There is little doubt (IMO) that the copyrights were infringed, and any of the fair use arguments will not apply.”
The jury is still out on that one, Brian. (Actually, the jury hasn’t even been seated yet!) 🙂
FASA’s extensions are irrelevant to the case as they’ve not been listed as infringing works. (That is, when the plaintiffs were asked to list specifically what works had been infringed to define the limits of what the case would be about, they failed to include the Four Years War extension, so they can’t claim that it’s been infringed upon in this case. They’d need to file a seperate case to do so)
The defendants already correctly pointed this out in their opposition brief. It’s actually a really bad look for the plaintiffs that their attorneys have mentioned it again in this reply, along with another work not listed in their complaint, because IMO it makes it look like they’re not respecting the court’s time by bringing even more works that they failed to add to the complaint into the argument. This is why you still need to be careful even when you’re using the hammer method, and it could hurt their case.
As to whether Prelude is set in the Star Trek Universe, sure, of course it is. But that may simply mean it’s inspired by unprotected elements of Star Trek, and isn’t specifically breaching any copyrights. Even the most original works will contain some unprotected elements. (The defense makes an excellent argument that a fictional species cannot be copyrighted as a character that I found very persuasive, which if the judge or eventual jury agrees, would eliminate Kharn as a potentially infringing element of Prelude. Remember, the Plaintiffs don’t just have to establish that they own copyrights, they have to establish that those copyrights are for reasonably distinct elements that are actually protectable under law. Nobody reviews copyright claims at the time of registration to determine that, so registration can be insufficient to prove actual copyright infringement) It could also be using copyrightable elements, but have a valid fair use defense, and there is also a pretty good argument that Prelude makes original commentary on Star Trek and tells a story in a different style and perspective, which could be ruled as transformative.
My favourite line of either reply has to go to the defense, however, for this gem:
“Of course, Plaintiffs have no rights to actor Gary Graham’s identity or features.” LOL.
Hey, who’s writing this blog, buster, you or me??? 🙂
Seriously, though, I might just quote you in my next analysis (or steal what you just wrote and not credit you so that you’ll just have to sue me) as I really couldn’t have said it any better myself. I forget, Matthew, are you a lawyer or lawyer-in-training…or have you just been paying close attention like me?
Feel free to quote me- when I do blog, I do so under a CC-BY license anyway, precisely so that people know they can quote me without asking my permission, because I believe in extending access to common intellectual property.
I’m a part-time author among other things, so I have some understanding of intellectual property (more so as it relates to New Zealand than to the US) because it’s something you need to know about when producing your own IP.
Even if I weren’t a backer, (I am) the Axanar case is hugely relevant to anyone interested in fanfiction in general, or who thinks copyright law is applied in a way which robs the public domain of intellectual property. To give that some context, under New Zealand law, the first season of Star Trek would enter the public domain next year under our laws, as copyright for television applies for fifty years from the end of the year it was first broadcast in, which I understand is a pretty standard length internationally. US law provides 20-75 extra years to that protection, (depending on how old your work is, because Mickey Mouse) which of course means that we have to worry about US law if we want to publish anything online.
It’s definitely worth touching on the public domain sometime, btw. It’s hugely relevant to fan fiction, as Wicked is basically fan fiction of a public domain book, and look how huge that story became!
I’ll tell Alec to start looking for studio space in New Zealand for his next Star Trek fan film project! 🙂
I’m not precisely sure whether US intellectual property is considered to go into the public domain under our timer or under the country it was produced in under the Bern Treaty, (where most countries have agreed to respect each others’ copyrights) so I’m not sure moving to NZ would help Alec make Axanar or any other Star Trek films, unfortunately, so he might want to check with W&S before he starts packing!
Oh, well. There goes my plans for Kiwi Trek!
One other comment. It has been mentioned numerous times about other infringing content…why have these not been brought to suit.
For the purposes of determining copyright infringement…it doesnt matter if CBS/para have let other infringements go. That argument does not dilute Alexs alleged infringements in prelude…and allegedly planned (but never produced) infringements in the Axanar feature film.
I suppose they could be used as some argument when determining damages (ie to mitigate the damages). Some argument about CBs/para made incidental income from these shows.
IMO…this could be the worst possible outcome for other fan films. If this lawsuit leads in any way to limiting any future CBS/Para lawsuit options or potential damages…you had better believe the next day there will be cease and desist notices sent to all star trek…star wars…LOTR…Harry Potter and all other fan projects shutting them all down.
So be careful what we all wish for.
This lawsuit could indeed change the landscape of fan productions…but not necessarily in the way hoped.
While fear-mongering is not prohibited on this blog, Brian, it’s also not particularly appreciated. First or all, CBS and Paramount cannot issue cease and desist letters to Star Wars or LOTR or Harry Potter fan films. And so far, Disney and Lucasfilm have embraced Star Wars fan productions in a way that is nearly opposite to CBS and Paramount. Disney understands the value of free publicity and interaction with the brand that keeps Star Wars fans loyal and enthusiastic about the franchise. LOTR is not an ongoing cinematic endeavor (unless Peter Jackson decides to do the “The Silmarillion”…and oh please, God, no), and so there’s little reason to crack down on LOTR fan endeavors since they only serve to keep interest alive and won’t affect future derivative works. As for Harry Potter, Warner did have Kickstarter suspend the page for “Severus Snape and the Marauders” (a MUST SEE fan film, BTW!), but they didn’t force Justin Zagri not to make the film. According to a statement issued by Justin at the time:
“I got a call from Warner Bros legal. Ensuring that I don’t have a heart attack, the very nice woman quickly assured me that we can still release the film.”
Warner just didn’t want the Kickstarter up raising tens of thousands of dollars. I doubt any verdict in the Axanar case would suddenly have Warner rushing to pull down “Snape.” In fact, if Alec wins on fair use, there’s a possible chance that “Snape” could also count as fair use. If so, why should Warner take the chance (and potentially spend tens or hundreds of thousands of dollars on a lawsuit) and risk getting the same verdict?
In the short term, I can certainly see some studios overreacting to a verdict in favor of Axanar. But others, like Disney and Lucasfilm, could well lead the way in demonstrating that there’s another, possibly better way to deal with fans of your property rather them shutting them down and chasing them away.
I know George Lucas himself approved of fan films, and by extension Lucasfilm, but does that carry over to Disney? Has there been any SW fan films since Disney acquired it, or have they spoken about it? Because Disney isn’t what I’d call a magnanimous copyright holder, considering they armed him to the teeth and took him to Capitol Hill to create the Mickey Mouse Protection Act, when he was about to be public domained in 2003. Disney even went after a little daycare that had the audacity to paint some disney characters on their walls.
Does this answer your question, Grifter? 🙂
http://www.starwars.com/star-wars-fan-film-awards
“Mickey Mouse Protection Act”…. I just love that!
It’s a real thing, though:
https://en.wikipedia.org/wiki/Copyright_Term_Extension_Act
Question regarding fair use:
Since CBS/Paramount don’t own the rights to the Star Trek universe, can e.g. Warner Bros. use such a ruling to make a for profit film set in the Star Trek universe? E.g. by using a complete new ship and new characters…but set within the Star Trek universe.
My guess would be no. The thing that would likely be the mitigating factor that is lacking in the Axanar case but present in the Warner hypothetical you suggest is the “for profit” part.
I am guessing that you mean Warner’s film is released in theaters (or put onto TV with advertising). In either case, the film itself is distributed directly for profit. In Axanar’s case, the film is being distributed for free via YouTube. Therefore, Axanar is not competing in the same market space. In other words, let’s say a theater is showing both Star Trek Beyond and Warner Trek at the same time. A movie-goer buys a ticket to see the latter. That is a direct loss to Paramount as money that would have gone toward buying a ticket for Beyond instead went to a competitive and unlicensed product.
This is why there are four elements to fair use, not just one, and they have to be weighed on a case-by-case basis as a whole–not just the sum of the parts.
But CBS/Paramount do own the Star Trek universe, back in October they produced documents which proved it to W&S who dropped that line of enquiry. Pretty sure Jonathan reported on this but can’t find the relevant post so heres one from elsewhere;
http://geeknation.com/apparently-cbs-paramount-really-do-own-star-trek2/
Any conversation on whether Warner, Sony, MGM, Fox , Disney (or whoever) making their own Star Trek movie is moot.
CBS doesn’t own the Star Trek “universe” because you can’t copyright a universe…only specific creative expressions within that universe that are distinctive enough to be protectable under copyright law. That’s kinda what this case is all about. BIG blog post happening tomorrow that touches on some of those points.
Yes..all statements are IMO. At the end of the day the judge and or jury will determine what is infringing…what is fair use…what is profit…what is personal gain…etc etc.
While not meant to be fear mongering…I guess it did come across a bit harsh.
I merely meant that many fans look forward to Axanar…rightly so. But I worry what a substantial win for Axanar might truly mean to the rest of the fan production community. Everyone seems to assume all will be rosy. I am not so sure.
And of course CBS/para do not own Star Wars or some of the other properties listed. They would not send anything on others behalf. I merely meant any change to the copyright game/playing field could very quickly change other companies currently accomodating attitudes.
Anyways…thank you for letting me post Jonathan. Cheers.
You’re welcome, Brian. And hey, I’m not saying there won’t be some tensions and possibly carnage if Alec wins. But at least it moves things forward. Fans films used to live in a “state of grace” that was one lawsuit away from collapsing like a house of cards. If it hadn’t been Alec Peters, it would have eventually been some other fan film maker. It was inevitable simply because the studios were doing nothing, saying nothing, to guide these fan productions…so they kept pushing the envelope. Now there’s guidelines (granted, not great guidelines, but there’s still a safe harbor). And if Axanar wins, there will be even more guidance…this time from the courts for both fan films and the studios themselves. Hopefully, this will eventually lead to a more synergistic relationship between fans and studio(s) rather than a tense or confrontational one. But it likely won’t happen overnight.
jon
I want to take a moment and thank-you for the job you do… You take the time every time to answer readers questions and comments in an intelligent and respectful manner. Not just some of the time but every time. I know that there are those out there who want to play the other end of this and I think they do so with out considering what happens. To fan films and fair use if the Mega Corps are allowed to trample on free speech and freedom of expression.
I don’t know if you noticed but there is no comment/question section at the Axmonitor which should tell everyone something about that site.
I’ve said it before and I will say it again, the only ones hurting Star Trek (and now Andy Griffith) is CBS. If they are this worried and threatened by a fan film. Then maybe they should be looking at doing what’s necessary to improve it’s marketability rather than suing fans, and those using the public domain.
If I were involved in a Trek fan-film at this point, I’d be very concerned. Because If they prevail it will just encourage more… And I’d bet my last Quatloo, that Continues will be next…
There is that to consider. If CBS wins this case, will it simply embolden them? Perhaps. However, I think they will simply stick to the guidelines and leave most Trek fan series alone unless they “cross the line” again…and this time the line will be better defined and backed up by a legal ruling.
That said, the fan film format is now EXTREMELY limited for Star Trek. 15-minute time limits are incredibly constraining to creativity when combined with a two-part maximum. It’s not impossible to work within that framework, but it’s also not impossible to create great artwork on a postage stamp. It’s just more conducive to creativity to have a bigger canvas.
In my heart, I think this lawsuit is a good thing (except, of course, for Alec Peters) in that it is forcing a lot of questions to the surface and requiring answers. Granted, we might all not like all of the answers, but at least we’ll finally have them…hopefully.
I think with what 50 trek lawsuits, they are emboldened enough…
One more bit on the corporate greed front, recently you could watch last weeks BBT on the CBS app, it is now apparently all access only. With the episodes now clocking in at under 20 minutes buying them on Itunes just seems like a waste.
Anyways, keep up the good work
Thanks. It’ll be really interesting to see if CBS’ pulling Big Bang Theory off its app and putting them exclusively on All Access actually results in more sign-ups for All Access…and if so, how many. All Access is a huge risk, and my gut says it’s gonna be the next “New Coke.” We’ll see…
I completely agree with this. If they were going to go this route, they should have just asked for a bit more money from Netflix and put Discovery on there in the States like it will be elsewhere. Programming such as Daredevil, House of Cards, Sense8, Orange Is the New Black, etc., provide a proven track record, while CBS All Access simply doesn’t have enough unique programming beyond Discovery to attract much beyond serious Star Trek fans (unless they’re producing several other Access-only things and have managed to keep it very quiet). The danger I’m worried about is that at least “New Coke” still had original Coke to fall back on when it failed. If Discovery fails to perform because of this model (and not because of writing/acting), I hope they have the humility to port it back to conventional television (or Netflix) instead of killing it outright.
I’d expect it to be licensed out to Netflix. That would keep Star Trek going as a revenue-generating entity for the studio. Just jettisoning Trek out the airlock would be throwing away money.
You’re right about the hammer/scalpel analogy. I really see this going to a full jury trial. The only real question becoming how much the judge will rule that can go to trial. If it does go to trial, the defense will definitely want jurors who recognize the difference between “fair use” and true “copyright infringement” because the plaintiff’s will be using that hammer and swinging it wide for maximum splatter effect. We will find out in just over a month which way this is going.
CBS Filed Copyright Ingringement for Public Domain Works this week.
I think they need to reevaluate their Legal Team
You want to protect your house and property, you get a pit-bull.
And then you suffer the consequences when the pit bull bites someone with a gun.
Or a phaser?
The bottom line is really simple as far as I’m concerned is this:
https://scontent-waw1-1.xx.fbcdn.net/v/t1.0-9/15380742_1189279821119539_5417048295043841821_n.jpg?oh=a24f2a9ca74341b3d7533bea33ef35e4&oe=58F51A71
The image is from Defence doc 104.8 and is shows that Axanar raised a bit over $100k from Prelude (and produced it) and raised a further $1.3 million (supposedly funding 2 of 4 parts of the feature) but that currently there is no money left. In layman’s terms that means Alec has burned through a shed load of donor money and all he has to show for it is a Warhammer clubhouse, a place to store his props, a few unfinished sets, some VFX work, and a 3 minute Vulcan (sorry, a generic pointy eared alien with Chinese characters on his robe) scene. Even giving him the benefit of the doubt that the court case has delayed production for a year (costing about $200k in rent and utilities) wasting over a million with next to nothing to show for it is unconscionable.
The great team that produced Prelude is gone, the money is gone, and all that is left is an inexperienced “producer” who is only adept at wasting money.
Ah, so you’re finally agreeing with the defense that this case isn’t about making profits. Excellent! Time to move forward then. 🙂
It’s never been about “profit” but is HAS been about “direct financial gain”.
Oh, I know what I’m getting you for Christmas, Sandy: a thesaurus (or maybe just a dictionary)! 🙂
Using about 10% of the scraps of truth anyone on the outside can access and filling in the other 90% with bullshit speculation is no way to prove a point, Curly Boy……
Bullshat, Dave. No cussing!!!
In the defense documents, it lists the new and improved financial summery. It shows that an amount over $1.42 Million was raised, and over $1.43 Million spent. How is it even remotely possible to spend that much and not even come close to producing a film? Where’s the money?
Did you ever make a stir-fry, George? You spend hours getting everything ready–chopping vegetables, making the marinade and sauces, preparing the meat, marinading the meat, measuring out the spices, etc. Then, once everything is ready to go, you heat the oil in the wok, start stir-frying, and it’s all ready in less than 10 minutes.
Axanar is kinda like that. Most of the money went into the pre-production prep. Actual filming would have been fairly inexpensive compared to studio build-out, set construction, costume design and creation, etc. Sure, filming would have included paying the actors and make-up people and the members of the production crew, but the lion’s share of the donated funds would have already been applied to getting all the ingredients of the stir-fry ready for cooking.
Earlier today, Alec FINALLY agreed to do an interview here on FFF where he’ll explain the Axanar finances. He just wants to complete an internal review with an audit committee first (no, I’m not on said committee). I am now REALLY looking forward to this interview so I no longer have to do all the Axa-budget defending by myself. I realize it’s not my job to defend anything (even though some detractors think it is, but no, it isn’t). However, I do happen to know much of what Alec Peters hasn’t shared publicly yet about how the money was spent…and I just hate having misinformation and baseless accusations floating around. Unfortunately, without anything straight from the horse’s mouth, I’m pretty much guarding the castle all by myself…and it’s frickin’ exhausting!!!
Good analogy. It’s similar in what I do as a door subcontractor. In any contract, the dollar value of of materials (doors, frames, and hardware) is always larger than the dollar value of labor.
I prefer ordering my food. Unfortunately the kitchen took my money and table 3’s still hungry.
If the money was spent on prep, where is the prep? I remember the half finished bridge being posted and there still being work to do. Then touting that the offices were finished. All the prep on the surface seems to be more panels, more bluster and not a lot of actual work being done. Why was an office built before anything for the actual product at hand?
One of the main reasons I donated was the promise of transparency with the finances. Since then Alec has told me one story (telling me why he paid himself) then told the world he didn’t take a penny. Here we are with one of his writers side stepping with an analogy and another promise that it’ll all be revealed soon (how many accountants has there been now?).
Where’s the transparency? Either it’s spent on things it shouldn’t have been spent on, or it’s time to admit there’s been a severe mismanagement in prioritising a custom built facility that was a want, not a need.
Analogies, excitement and loyalty don’t cover an empty tank and a backtrack on promises.
I’ll try to incorporate some of your comments into the questions I ask Alec during our upcoming interview, George. However, I can answer at least one of your questions myself right now. “How many accountants has there been now?” None before now. That was one of the problems. Over the past two months, Alec finally got a CPA in to compile all of his disparate receipts in Quicken into a cohesive and financially valid report of expenses.
Thank you kindly. You would have a far better chance than I ever did!
Honestly, and I mean this without sounding harsh because I don’t believe in going as overboard as most, I think it would be a good move if Alec explained further why he’s been so skittish being straight forward with such info.
All it’s done is worry the donor and give ammunition to the ‘haters’. You’re of course in no direct position to say, and he’s under no obligation to listen, but I believe that if mistakes have happened, the best way forward is admitting them (without causing legal problems anyway!)
Alec’s primary mistake was calling the $38K a “salary”…and I told him that before the annual report was ever released. Aside from that, I think he should have gotten an accountant earlier on. If there were other mistakes made, maybe Alec can address them in the interview. But I think the concept of “mistake” may be in the eye of the beholder…or the detractor.
As for why Alec’s been so skittish, well, I think he’s in a Kobayashi Maru scenario. If he releases everything, the detractors will likely pull out this and that “gotcha!” point and make a federal case out of each one. (And Alec has already got one federal case to deal with!) Why invite the extra aggravation and time-suck of all those extra e-mails? On the other hand, by saying nothing, he’s simply letting the rumors fly again. Which is worse? Who’s to say? But I think the release of everything would result in an endless parade of e-mails that Alec would feel obliged to answer addressing every little thing…or else be right back where he started with his silence leading to misinformation and accusation.
I think the audit committee will at least help Alec to better address the questions that are sure to come in. They’re not there simply to rubber-stamp the report that the CPA put together. The committee is going to take a hard look at everything and hit Alec with the tough questions BEFORE everyone else hits him with the tough questions.
I look forward to the interview.
One question though if you don’t mind. And this harks back to a conversation I had with Alec – but what did you advise he call his salary?
I ask because he as fairly adamant to myself, and anyone with ears to be fair, that he was on minimum wage working full time and was paid his salary as part of that work. It’s one of several larger issues at hand, but one that keeps coming back to me as a dishonest one. And that is troubling.
While I’m not targeting you in this statement; whats more troubling is the lack of answers when I asked directly “which one is it?” when I put the old story and the new story side by side. And the fear of releasing information is another curious point; what is there to fear in those documents? If there are expenses that can be justifued, fine. And if thats the case, what is there to hide? But if I ask any more questions like that it’d be me conducting the interview and not you 😉
I know this kind of thing will pick away at him and I know it’ll be asked a hundred times over. But I think we can all understand why the frustrations set in, not just within the excluded hater camp, but within the supporters as well.
What I learned many years back is if there’s been a mistake, hiding it can be damaging. Excusing it can be worse. Admitting it? Honesty breeds loyalty – and even if there was no mistake to make, if Alec could reply as calmly as you have, there may be a far smaller circle of upset people (both donors and hated alike).
At the time, he was calling it a salary because Alec isn’t an accountant. When he asked certain people close to the project to review his annual report before he released it to donors, there were lots of pats on the back from various folks, a few typo corrections, and then there was me. I’ve never been shy about speaking truth to power (got fired a couple of times for it during my career, as a matter of fact), and I certainly don’t mind saying or doing things to piss off Alec if I think he needs to hear them. Granted, I don’t say these things expecting to always win every argument. But I do feel that some sentences need to be uttered and some things at least heard.
The $38K salary was one of them. Initially, Alec didn’t put any explanation in the report and just listed it as a line item. I told him that was a bomb waiting to explode. At the very least, Alec needed to explain to donors that a $38K salary was a fraction of what someone doing the same job in Hollywood would be getting paid. Executive producers can make 6-to-7 figure salaries easily. Remember that the job of an EP is to bring in money, and Alec had brought in, at that point, nearly three quarters of a million dollars. Compared to that, $38K was indeed a bargain! He needed to explain that or risk a huge backlash from people who just didn’t understand.
In the end, Alec put in a token description of what I just said, but not nearly as thorough. There was a lot of assumption in what he wrote that the reader should already know about these facts I just mentioned. Well, most people don’t live in Hollywood and wouldn’t know unless it were explained properly. Personally, I don’t think it was explained as well as it could have been (these were the days before Mike Bawden came aboard), and fans at the time were just totally shocked to see ANY fan film paying ANYONE…most fans not realizing that “New Voyages” had done it first, then “Of Gods and Men” and “Renegades,” and “Star Trek Continues” had been paying salaries for a couple of years by that point. Alec, of course, knew all this and probably didn’t consider the possibility that most fans didn’t (why would they?–no other production had ever issued an annual report or any details how donor funds were spent). Unfortunately for Alec, however, Without that awareness of how other fan films had been doing the same thing for quite a while, Alec’s “revelation” seemed to many fans to be breaking an unwritten cardinal “rule” of fan films: you don’t pay people to work on them!
Had fans known in 2006 that James Cawley had paid actors and writers and that the editor of “World Enough and Time” got paid $60,000, had they known that STC had already paid out over a $100,000 in salaries to cast and crew on multiple episodes, I doubt Alec’s “salary” revelation would have reached quite the same level of scandal. But alas, Alec was the first to reveal how the sausage was made with the high-end fan productions…and he paid the price for that with creating one of the biggest controversies of the whole Axanar situation.
In the end, of course, having an accountant on board from the beginning would have avoided this problem entirely. An accountant is knowledgeable enough to understand that when you put money into a project and then pay yourself later, that’s reimbursement…not a salary. Any accountant worth their salt would advise their client to take the payout as reimbursement…simply to avoid paying income taxes. And of course, Alec never issued himself a W-4 or 10-99 tax form, so in the eyes of the IRS, it wasn’t a salary anyway. Now that it’s been officially declared reimbursement by a hired CPA, the IRS doesn’t care anyway. Alec has records of every dollar he put in, so yeah, it is technically and legally reimbursement and was never a salary to begin with. In calling it a salary in the report and for several months following, Alec was in error. So if you’re looking to point a finger at a mistake, that would be it.
Reading your words, $38k was a bargain payment for what he was doing and that payment was fine. It was more of an award? Like a bonus for breaking a target at a sales job?
Or does the term reimbursement suggest he paid money in, and took it back? Is this what you’re saying other fan films have done? It’s not a secret that STC’s producers have put in a significant amount of their own money. Are they just taking that back? Do you have evidence of this?
The concern here is hearsay versus court documents. Court documents I’m looking at are fact, listed by the defense. The defense says the moneys gone and it’s embarrassing to say why, hence the redactions.
If this is all standard fare with a megaphone, and everythings above board, why is the defense so concerned with hiding this?
“Reading your words, $38k was a bargain payment for what he was doing and that payment was fine. It was more of an award? Like a bonus for breaking a target at a sales job?”
No, I don’t think it was ever that. It was money to live on so Alec could work full-time on Axanar instead of needing to divide his efforts between Axanar and a regular 9-to-5…especially since much of what happened on Axanar in the early months (and beyond) required Alec to be available during business hours. Remember that, when all these donation were being taken in, there were no guidelines yet from CBS/P…and Alec even met with them four times to let them know what he was doing. They never said, “Stop!” so he figured it was okay to go on doing exactly what he was doing, which was (at the time) primarily fund-raising. That was his job, and he did it well. Axanar generated more in donations than any Star Trek fan film before it. I doubt that would have happened if Alec Peters were not working on Axanar full-time.
Some of the detractors have talked about other productions like STC paying professions who worked on the project but not paying the show-runners themselves. First, I don’t know if that’s true or false, as STC and Renegades and NV haven’t released the specifics of their financials (so we don’t know whether or not Vic Mignogna, James Cawley, or Sky Conway/Tim Russ received any compensation at any time for their efforts on their fan films/series…and whether those payouts might have been salary or reimbursement–some of the detractors are just assuming there wasn’t any of that; but we don’t know for sure). But second, there seems to be some kind of false equivalency (double standard) being applied here. Detractors are saying that simply because Axanar was Alec Peters’ project that he’s the ONE GUY who should NOT be getting paid. Personally, I think that’s ludicrous (at least, in the pre-guideline world…although I still maintain that guideline #5–the “no professionals” rule–violates California law). Alec worked just as hard as anyone building the sets or acting or editing or doing make-up or VFX. Tell me why someone working so hard should not be compensated just like other team members are being…especially if the remuneration is not only market-competitive but the merest fraction of industry standard compensation. Just because he’s the show-runner he’s the ONLY person who should go broke making his fan film? That doesn’t sound fair or even rational.
“Or does the term reimbursement suggest he paid money in, and took it back? Is this what you’re saying other fan films have done? It’s not a secret that STC’s producers have put in a significant amount of their own money. Are they just taking that back? Do you have evidence of this?”
Without seeing Vic Mignogna’s books (and I don’t think fans–even donors like me–have a “right” to see those books because we donated to STC; we didn’t invest), we certainly have no proof of anything. Nobody does. Vic did, indeed, reportedly put in $40-60,000 of his own money to jumpstart STC. So if he ever got any money from STC donors, I’d say that’s fine, too…just as it is with Alec. It doesn’t matter if Vic was reimbursing himself or being paid a salary…although if I were Vic, I’d call it a reimbursement to avoid paying taxes. 🙂 But as I said, none of us has any data one way or the other that Vic paid himself anything–and I don’t want anyone to think I’m implying that! It’s only that, if Vic had, as a donor to STC myself, I wouldn’t have any more of a problem with it than I do with Alec getting paid from my donations. Alec’s efforts only served to make Axanar better and paid off 50-fold. Likewise, Vic is awesome as Kirk and has led that production like the commanding officer he is. If Vic’s not getting paid, that’s fine. But if he is, that’s fine, too. He certainly deserves it!
“The concern here is hearsay versus court documents. Court documents I’m looking at are fact, listed by the defense. The defense says the moneys gone and it’s embarrassing to say why, hence the redactions.”
Just curious, George, why do you assume that it’s “embarrassing” to say why? There might be a good reason not to release specifics. Maybe there’s not a good reason. Obviously, that’s going to be one of the first questions I ask Alec in the interview. But don’t assume something. The reason the original financials were sealed is because they were unaudited by an accountant and, therefore, rife for misstatement and the dissemination of misinformation by twisting the truth into a pretzel…which the plaintiffs ultimately did. And once those accusations got out, thanks to “redaction-gate,” well, you saw what happened. So yeah, I think it’s pretty clear that releasing unaudited raw receipts could be damaging to Alec Peters’ reputation. As just a single example, “tens of thousands of dollars was spent on “meals…” say the plaintiffs in a vague accusation lacking any specifics. Detractors have just assumed this meant that Alec going to expensive restaurants and ordering huge amounts of sushi for everyone on the the donors’ dimes. But what if, just suggesting here, the majority of those meals were for Craft Services for the actors and crew on days of filming? That’s three meals a day for 50 or more people for a couple of days in a row (and that’s just on Prelude…remember they also filmed in Ticonderoga and did the Vulcan scene). Alec also bought the volunteers lunch on the days we helped carry carpets upstairs, clear the soundstage floor, stuff envelopes, etc. I seem to recall I ordered a cheese steak and chips, and Jayden had a grilled cheese and milk. That’s a legitimate business expense that has nothing to do with eating at an expensive restaurant. Or how about treating a deep-pocketed donor to dinner? Now, in that case, yeah, it’ll probably be an expensive meal. But if that expensive meal results in a $5,000 donation, then even if the meal was $100 or $200, if it netted $5K, I’d say it was worth it.
So the devil–or the angel–is in the details, George. Why not just wait for those details…as apparently, they are forthcoming. After Alec gets his turn to speak on the record to me, THEN you can judge. But just because he’s taking his time to respond and do this interview, that does not mean he is guilty of anything. That’s not how our country works.
“If this is all standard fare with a megaphone, and everythings above board, why is the defense so concerned with hiding this?”
I think I just answered this above. Hope it helps (’cause I really need to get to a bowling party!). 🙂
Just a thought. With all the talk of character / ip copyright does cbs/ par have a different / additional copyrights on the characters in the JJ vers? As most of the character traits in this vers differ greatly from the prime time line. Just one example – Spock’s an emotional mess. Their entire back stories have been changed, having the effect of changing the characters. Total mismanagement / not understanding of TREK by the IP/copy right holders -CBS /Par. This has been my prime reason for supporting the fan productions. we as fans – granted were old school and dieing off – understand Trek better then the Powers that be. Why can’t CBS / Par use that lump just north of their tookhes and learn from Lucas / Disney? or even BBC’s handling of the DR Who 50th. I was so excited for Trek’s 50th just to have the Powers crap all over it.
With the Fuller news I’m even more concerned about Discovery, this is looking like a poorly conceived mess.
My apologies for the rant but with the lawsuit filed last week (Andy Griffith) I’ve had it with them. It’s like they are saying ‘Oops we screwed up and we are going to sue you any way – Thanks for caring and being fans here’s a single digit salute for you!’
LLAP
Dan H.
Don’t get me started on Fuller. I found out something last Saturday night about that, and it’s leaving me pissed as heck at CBS and dreading this new series. Granted, it could still surprise me, but now it will, indeed, be an actual surprise rather than fulfilling my hopeful expectations.
As for you questions about separate registrations for Kelivn-Kirk and the gang from JJ Trek, I don’t really know. However, I would guess that everything still goes back to the original characters and their first appearances back in the late 1960s. Remember that CBS owns the Star Trek copyrighted works, not Paramount. Were Paramount to suddenly claim ownership of Captain Kirk et. al., it could become very confusing and messy trying to explain that this is CBS’s Kirk and this is Paramount’s Kirk.
A good example would be James Bond. Daniel Craig’s Bond is a total reboot, but the character still goes back to his original book and movie appearances. The same could be said of Batman or Godzilla.
Is what you found out about Fuller something that will eventually become public?
Probably not…although I’m not really sure. Fuller already admitted in the Newsweek interview that he’s not coming back, which was not part of the initial statement from CBS. So maybe he’ll talk more about what really happened. Unfortunately, I’m not sure I’m allowed to. I’m not sure the person who told me knows I have a blog…and she might not have shared the info if she’d known. As such, I’m erring on the side of silence.
Ah!!!!!! But if that pitbull is not controlled and bites the wrong person than the owner of the pitbull gets sued and then they are worse off!!!!!
Remember that there is still a counter-claim, and I wouldn’t be surprised to see sanctions against the plaintiffs requested by the defense over the redaction fiasco.
I would expect criminal charges to be brought against Sandy Greenberg as well, since deliberately contravening a digital security measure and publishing the secured material is a flagrant breach of data protection laws, especially since the redacted document was a Federal court filing. Add to that the fact that the document metadata shows he used his employer’s software during normal UK business hours to do it, and it’s possible he implicated his employer in the breach as well. Hope losing his job and possibly his freedom was worth it for him.
I know you’re just trying to make a point about how ridiculous Sandy’s accusations against Alec are, Reece, but what you’ve just said borders on libel. I’m approving it with the disclaimer that all comments made by people posting to Fan Film Factor are solely the view(s) of the individuals who write them and do not reflect the opinions of myself or Fan Film Factor as an entity.
Also, to everyone here, please be careful with the accusations against people–even Alec Peters. Libel is a very real thing. And even though there’s little chance that someone in the UK will be successfully sued by someone in the US, that’s not the point I’m making. Libel is against the law not simply because it’s illegal but because it’s morally wrong. Libel can hurt someone’s reputation, their career, their livelihood. In the case of Reece’s comment above, if Sandy Greenberg’s employer does by some chance happen to read this comment, Sandy could potentially lose his job. What it took Reece less than two minutes to type up and submit could potentially have repercussions that extend out for Sandy for years or even decades. Trying to hurt Sandy or teach him a lesson is not worth the possible damage to his life and livelihood…at least in my opinion.
Jonathan, I respect that, and I do not make that statement lightly. Truth is an absolute defense against any libel charge, and the facts are indisputable. The document Sandy Greenberg produced from the redacted Federal filing deliberately exposed information meant to be kept secret. Circumventing a digital security measure in itself is a breach, but doing so on a document involved in an ongoing Federal court case, and then publishing that secret information to the public, in a Microsoft Word document clearly indicating Greenberg as the author and his employer as the owning organization, is both unethical and unprofessional, any way you slice it. A court will have to determine his guilt, but his employer would be well within their rights to investigate the matter and take appropriate actions.
Be aware, however, that the confidentiality order applied only to litigants in the Axanar lawsuit. Improperly redacting the document was solely the responsibility of Loeb & Loeb. Once out, the unredacted information was public…even if it was “blacked out.” The fact that it was so relatively easy to “unredact” (copy/pasting into Word) means that, essentially, L&L released unredacted information. Sandy only took the already public information and re-transmitted it to others…and that in and of itself is not illegal…certainly not for a non-litigant not bound by the court order, and certainly not for a non-U.S. citizen.
Now, was what Sandy did unethical and unprofessional? Well, more likely the latter. But was it illegal? I don’t think so. If I were his employer, I certainly wouldn’t be happy to have an employee get my company potentially mixed up in the legal battle in the U.S. involving a Fortune 100 corporation. But I don’t think I’d fire him for it, and I don’t think Sandy will ever see the inside of a courtroom because of this particular controversy.
As far as I can tell, Jonathan, the law doesn’t make allowances for the ease with which a security measure can be defeated. A “No Trespassing” sign by itself is easy to circumvent, but the intent is clear. This was not an accident; he purposefully published information meant to be kept secure without authorization. Loeb and Loeb may be responsible for the weak redaction, but Greenberg took it upon himself to exploit their error and publish without authorization. There’s no excuse for that.
A “No Trespassing” sign applies to the general public. A court order applies solely to litigants and parties directly involved in the case (like deposed witnesses). Sandy is neither.
Sorry, Jonathan, I disagree. If someone smashes a store window with a brick, that doesn’t mean you get to loot a TV because the window was already broken. Now, if Greenberg is prosecuted, I’m sure his attorney will do all he can to throw the blame elsewhere, but ultimately, it will be up to the British courts to judge if what he did was worth punishment. From what I understand, the U.K. Data Protection Act is even more strict than the DMCA, and there may be EU data laws in play as well.
Sorry to keep debating you, Reece, but your metaphor is off. Your store looting analogy involves theft, which is illegal for everyone. The responsibility of keeping court documents confidential is a burden that falls only on litigants and related parties in a case. Sandy is not covered by the court order and therefore did nothing illegal. And even if he did, it would carry civil, not criminal penalties.
Again, Jonathan, I disagree. Your argument only makes sense if the attorneys for both parties didn’t already have access to the unredacted versions of the documents. The whole purpose for the seal is to keep private information secure. The plaintiffs have the unredacted documents. While the blame for the weak redaction lies with the plaintiffs, the purpose for the redaction, its intent, was clear. Arguably, anyone could have gotten at the information with a little knowledge, but the point is that the average reader would not have automatically known how to read the digitally-redacted parts. That is, the weak redaction would have sufficed. But the DMCA as written makes it illegal to circumvent a digital security measure, or to provide the means to do so to others. That’s what they put in place to kill DVD-copying software, but the scope isn’t limited to DVDs. Granted, prosecuting someone for telling someone else how to get around a security device is rare. But doing it and then publishing the results is wanton disregard of both the letter and the spirit of the law.
When Sandy is NOT hauled into court, Reece, you’re just going to have to consult an actual lawyer as to why nothing happened. 🙂
Wait, if an employee of yours took company time to produce a personal document with company software that could expose the company to litigation or criminal investigation, without your authorization or knowledge, you WOULDN’T terminate them on the spot for gross misconduct? Wow. You might want to talk that over with an HR specialist, especially if you ever find yourself managing others.
I managed others for a decade and a half, Reece. I was a senior manager of a department and later a creative director…and for seven years, I co-owned a company with my brother that grew from just us to 20 employees when we sold it 6 years later, and then our new overlords expanded us to 55-60 people before I left. Oh, and my wife is an employment litigation attorney here in Los Angeles
Holy cow, Jon! You’re a Saint! 🙂
More of a Jet, but both teams suck. And don’t get me started on the Rams!!!
If that happens, it happens. I don’t have a personal stake in the outcome, just a concern to see justice done where the laws determine. It does puzzle me, however, why you were so concerned about Greenberg’s job being in jeopardy from his actions a few hours ago, if you are immovably convinced of his complete innocence in the whole affair?
Liability…hence, my disclaimer. I don’t know what his boss will think of all this. I certainly wouldn’t fire Sandy over it, and I don’t think he’ll ever be brought up on charges. But not everyone thinks as rationally as I do. Sandy’s a good example of that, and his boss might be, too, for all I know.
Well said!
I will read the links when I get home on my computer. I do believe the whole situation can be summed up in a few sentences. Star Trek: Discovery and Axanar are set basically in the same era/time period. CBS PARAMOUNT wants to charge for the viewing. Alex doesn’t. Will the storyline of Discovery come close to Axanar’s finest? That’s the question. Personally, I think Discovery maybe lacking. Instead of paying the streaming fee, they fear that the fans may give more money to Alex to make his next film. That’s my two cents.
It’s a false equivalency, though. I gave my money to Axanar in 2014 and 2015. It’s ridiculous to assume that I haven’t managed to save up six bucks because I gave 300 bucks to Axanar to two years earlier.
I was talking about the future. If Discovery isn’t a good product, I would rather give 6 bucks a month or ten dollars a week or whatever else I could afford to get a great one like Axanar.
“The Enterprise should not be hauling garbage! It should be hauled away AS garbage!”
-The Trouble with Tribbles
Yeah, I woulda hit ‘im, too. 🙂
To me it seems CBS/Paramount gave up on caring for the Star Trek cannon and what the fans love when they allowed J.J Abrams make his first two movies, the third was not perfect but it was better