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appeal_fact_check [2017/01/04 17:27] – created Carlos Pedrazaappeal_fact_check [Unknown date] (current) – external edit (Unknown date) 127.0.0.1
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-[{{:ninth-circuit-court.jpg?720|**APPEALING PROSPECTS** The Ninth Circuit Court of Appeals in Pasadena, Calif.}}]+<WRAP> 
 +{{:ninth-circuit-court.jpg?720|}} \\ 
 +<wrap lo>**APPEALING PROSPECTS** The Ninth Circuit Court of Appeals in Pasadena, Calif.</wrap> 
 +</WRAP>
  
 <WRAP> <WRAP>
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 //**After Losing Its Fair Use Defense, How Much Can Axanar Count on the 'Liberal' Ninth Circuit?**// //**After Losing Its Fair Use Defense, How Much Can Axanar Count on the 'Liberal' Ninth Circuit?**//
 {{TOC}} {{TOC}}
-<WRAP> 
-//**__ __**// <wrap lo>**By [[user>cpedraza|Carlos Pedraza]]**</wrap> 
-</WRAP> 
  
 <wrap lo>See also: //[[fair_use_denied|Judge Denies Axanar Its Fair Use Defense]]//</wrap> <wrap lo>See also: //[[fair_use_denied|Judge Denies Axanar Its Fair Use Defense]]//</wrap>
  
-Producer [[Alec Peters]] tried to put a hopeful spin on what had to be a crushing blow in a federal judge's January 4, 2017, ruling that Axanar lost its fair use defense to CBS and Paramount's allegations of copyright infringement in trying to produce his independent Star Trek film, //Axanar//. +Producer [[Alec Peters]] tried to put a hopeful spin on what had to be a crushing blow in a federal judge's January 4 ruling that Axanar lost its fair use defense to CBS and Paramount's allegations of copyright infringement.
- +
-{{page>fact check}}+
  
 ===== Peters' Statement ===== ===== Peters' Statement =====
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 > Depending on the outcome of the trial, Axanar may choose to appeal the verdict to the Ninth Circuit, where [Axanar attorney] [[Erin Ranahan]] is 5-0. The Ninth Circuit Court of Appeals is also known to favor artist rights. So the story of Axanar continues …(([[http://fanfilmfactor.com/2017/01/04/official-statement-from-alec-peters/|Statement by Alec Peters]], Fan Film Factor blog, 1/4/17.)) > Depending on the outcome of the trial, Axanar may choose to appeal the verdict to the Ninth Circuit, where [Axanar attorney] [[Erin Ranahan]] is 5-0. The Ninth Circuit Court of Appeals is also known to favor artist rights. So the story of Axanar continues …(([[http://fanfilmfactor.com/2017/01/04/official-statement-from-alec-peters/|Statement by Alec Peters]], Fan Film Factor blog, 1/4/17.))
 +
 +{{page>fact check}}
  
 ===== The Real Record of the Ninth Circuit ===== ===== The Real Record of the Ninth Circuit =====
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 However, the "most liberal circuit" characterization is not based on fact. It's a longstanding trope of the conservative media that is largely based on the number of Ninth Circuit cases that have been reversed by the Supreme Court. But that has more to do with the disproportionate number of cases heard by the Ninth Circuit — which covers nine states and about 20 percent of the U.S. population — than the ideological inclinations of the judges who sit on its bench. However, the "most liberal circuit" characterization is not based on fact. It's a longstanding trope of the conservative media that is largely based on the number of Ninth Circuit cases that have been reversed by the Supreme Court. But that has more to do with the disproportionate number of cases heard by the Ninth Circuit — which covers nine states and about 20 percent of the U.S. population — than the ideological inclinations of the judges who sit on its bench.
  
-One consequence of the Ninth Circuit's size is that it has 29 full-time judges, far more than any other circuit (the next largest has only 17). There are also "senior judges" who continue to work part-time. Right now there are 25 full-time judges, 19 part-time judges, and 4 full-time vacancies. Additionally, retired Supreme Court Justice Sandra Day O'Connor occasionally sits in on Ninth Circuit cases.+[{{ :alec_peters.jpg?direct&150|Axanar defendant **Alec Peters**}}] 
 + 
 +=== The Biggest Circuit === 
 + 
 +One consequence of the Ninth Circuit's size is that it has 29 full-time judges — far more than any other circuit (the next largest has only 17). There are also "senior judges" who continue to work part-time. Currently, there are 25 full-time judges, 19 part-time judges, and 4 full-time vacancies. Additionally, retired Supreme Court Justice Sandra Day O'Connor occasionally sits in on Ninth Circuit cases. 
 + 
 +=== How the Court Hears Appeals === 
 + 
 +Appeals are usually heard by randomly selected three-judge panels. So there's a current pool of 45 judges who could be assigned to a potential Axanar appeal (not including any potential Trump appointments to fill the four vacancies). Therefore, while it's true a majority of these judges were appointed by Democratic presidents, that does not in and of itself guarantee a "liberal" panel for a particular case.  
 + 
 +===== Pro-Artist or Anti-Corporate? ===== 
 + 
 +Peters' assertion that the Ninth Circuit is "pro-artists' rights" doesn't appear to be based on any real data. The Ninth Circuit enforces the same copyright laws as every other circuit. If the court were "pro-artist," wouldn't that favor stronger copyright protections? Perhaps Peters meant to say the Ninth Circuit was anti-corporation, but that isn't borne out by data either. 
 + 
 +===== The Data on Appeals ===== 
 + 
 +Peters claimed: "Even if we were to lose at trial, an appeal would likely be very positive for us."  
 + 
 +But the truth is that appeals generally don't favor the party appealing. The Administrative Office of the U.S. Courts tracks this data, and according to the most recent figures appeals decided between July 1, 2015, and June 30, 2016, the Ninth Circuit its reversed its trial courts' "other private civil" decisions only 16.3 percent of the time. That refers to appeals in civil cases where the federal government or a prison inmate was not a party.(([[http://www.uscourts.gov/sites/default/files/data_tables/stfj_b5_630.2016.pdf|Administrative Office the U.S. Courts]], retrieved 1/4/16.)) 
 + 
 +While this is a higher reversal rate than most circuits, it still means there's a roughly 85 percent chance the Ninth Circuit would affirm a jury verdict in favor of CBS and Paramount. 
 + 
 +[{{ :ranahan_3.32.06_am.jpg?150|Axanar attorney **Erin Ranahan**}}] 
 + 
 +===== Ranahan's 5-0 Record ===== 
 + 
 +Peters's statement touted its attorney Ranahan's successful "5-0 record" of appeals before the Ninth Circuit. **AxaMonitor**'s examination of court records found the five cases, but in none of them was she "counsel of record," the lead attorney who actually argued the case. And two of those cases were voluntarily dismissed before the Ninth Circuit issued a decision. 
 + 
 +==== Appellate Cases ====
  
-The way appeals courts work is that cases are usually heard by randomly selected three-judge panels. So there's currently a pool of 45 potential judges who could be assigned to a potential Axanar appeal (Axappeal?), not including any potential Trump appointments to fill the four vacancies. And while it's true a majority of these judges were appointed by Democratic presidents, that does not in and of itself guarantee a "liberal" panel for a particular case. +Ranahan's five appellate cases do not evince the clear-cut victory streak claimed by Peters:
  
-Second, LFIM's assertion that the Ninth Circuit is "pro-artists' rights" is based on absolutely nothing. The Ninth Circuit enforces the same copyright laws as every other circuit. And if the court were "pro-artist," wouldn't that favor stronger copyright protections? Perhaps LFIM meant to say the Ninth Circuit was "anti-corporation," which isn't true either, but calling it "pro-artist" is, as Madam Justice @jespah would say, semantic shenanigans of the highest order.+  * **Graham-Sult v. Clainos** \\ <wrap indent>Ranahan and her firm represented a group of defendants in a lawsuit alleging copyright infringement among other claims. While a Ninth Circuit panel affirmed large portions of the trial court's decision in favor of the defendants, it actually //reversed// the dismissal of the copyright infringement claim, meaning Ranahan and her colleagues lost that part of the appeal.</wrap> 
 +  * **UMG Recordings v. Shelter Capital Partners** \\ <wrap indent>Ranahan and her firm successfully defended a website accused of copyright infringement by Universal Music Group. The Ninth Circuit affirmed the trial court's decision to grant summary judgment to the defendants. The decision was based on the Digital Millennium Copyright Act, which is not applicable to the Axanar case.</wrap> 
 +  * **American Bullion, Inc. v. Regal Assets, LLC** \\ <wrap indent>This was a false advertising case that did not involve copyright infringement. Ranahan entered an appearance in the case nine days before the parties agreed to dismiss the appeal.</wrap> 
 +  * **Henderson v. The J.M. Smucker Company** \\ <wrap indent>This was another false advertising case (actually, a denial of a class action certification) that was dismissed before the Ninth Circuit heard formal arguments.</wrap> 
 +  * **Nafal v. Carter** \\ <wrap indent>This was a lawsuit brought against several dozen defendants over alleged copyright infringement in a Jay-Z song. Ranahan defended a foreign company that was one of the defendants dismissed from the case early in the proceedings. Although the Ninth Circuit affirmed the trial court's decision granting all defendants summary judgment, it appears Ranahan did not actively participate in this appeal.</wrap>
  
-Now let's talk some hard numbers. LFIM claims, "Even if we were to lose at trial, an appeal would likely be very positive for us." The truth is that appeals generally don't favor the party appealing. The Administrative Office of the U.S. Courts actually tracks this stuff, and according to the most recent figures--appeals decided between July 1, 2015, and June 30, 2016--the Ninth Circuit only reversed the trial court's decision in 16.3 percent of "other private civil" cases. That refers to appeals in civil cases where the federal government or a prison inmate was not a party. Now, this is actually a higher reversal rate than most circuits, but it still means there's a roughly 85 percent chance the Ninth Circuit will affirm a jury verdict in C/P's favor.+==== Axanar's Chances ====
  
-Finally, in his statement today, LFIM touted Erin Ranahan's "5-0 record" before the Ninth Circuit. I've been trying to dig up those five cases. So far I've found four cases where she was listed as counsel, but in none of them was she "counsel of record," i.e. the lead attorney who actually argued the case. And two of those four cases were voluntarily dismissed before the Ninth Circuit issued a decision.+In the three cases actually decided by the Ninth Circuit, Ranahan's client had prevailed in the lower court, meaning her record is for cases in which her firm had prevailed at trial, not cases where she sought to overturn the lower-court decision — statistically, a much more difficult proposition. {{:axamonitor-ico.gif?nolink|}}
  
-The two cases I found where Ranahan was listed--again, not as the lead attorney--don't really shed much light on how the Ninth Circuit would respond to an Axappeal. The first case, UMG Recordings, Inc. v. Shelter Capital Partners, involved the application of the safe harbor provision under the Digital Millennium Copyright Act. The second case, Graham-Sult v. Clainos, dealt with misappropriation of intellectual property. In both cases Ranahan's client supported affirming, not reversing, the district court. That's critical because, as I noted above, affirmances are statistically much more likely than reversals. And in Graham-Sult, the Ninth Circuit actually reversed on one issue, against the position advocated by Ranahan's client.+---- 
 +**Keywords** {{tag>appeal Erin_Ranahan defendants defense counsel fact_check}}