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— | compel_discovery [2016/10/22 00:34] – [Motion to Compel Discovery] adds link Carlos Pedraza | ||
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+ | {{: | ||
+ | ====== Motion to Compel Discovery ====== | ||
+ | {{TOC}} | ||
+ | < | ||
+ | //**__ __**// <wrap lo>**By [[user> | ||
+ | </ | ||
+ | |||
+ | <wrap lo>//See also: [[discovery_order|Court Orders Studios to Turn Over Documents]] and [[protective_order|Protective Order]]//</ | ||
+ | |||
+ | Axanar' | ||
+ | |||
+ | In a 62-page joint filing September 29, 2016, the two sides asked for an [[discovery_order|October 21 hearing]] before Eick to make arguments.((Notice of Motion and Motion to Compel Discovery from Plaintiffs filed by Defendants Axanar Productions, | ||
+ | |||
+ | ===== Evidence for the Defense ===== | ||
+ | |||
+ | Defense attorney [[Erin Ranahan]] sought evidence she hoped would bolster defense contentions that: | ||
+ | |||
+ | * Producer [[Alec Peters]]' | ||
+ | //**__« This case is about a commercial enterprise designed to take money from Star Trek fans. »__**// — //Attorneys for CBS, Paramount// | ||
+ | </ | ||
+ | * The studios "long tolerated and encouraged … Star Trek-inspired works of fan fiction." | ||
+ | * The studios' | ||
+ | * The lack of market harm would be an integral part of the [[fair use]] defense Axanar planned in the case. | ||
+ | * Little or no need for statutory damages from whatever copyright infringement the plaintiffs might prove. | ||
+ | * The 50-year chain of title for Star Trek's copyrights may have broken links imperiling the studios' | ||
+ | |||
+ | <WRAP right round tip 50%> | ||
+ | {{ : | ||
+ | <wrap lo> | ||
+ | </ | ||
+ | |||
+ | ==== The Role of Financial Records ==== | ||
+ | |||
+ | Much of the defense motion revolved on Axanar' | ||
+ | |||
+ | ==== Plaintiffs' | ||
+ | |||
+ | <WRAP right round download 300px> | ||
+ | <wrap lo> | ||
+ | </ | ||
+ | |||
+ | Ranahan, of [[Winston & Strawn]], complained her counterparts at [[Loeb & Loeb]], the plaintiffs' | ||
+ | |||
+ | Loeb's refusals, Ranahan said, asserted " | ||
+ | |||
+ | Moreover, the trade secrets, private and proprietary information, | ||
+ | |||
+ | {{page> | ||
+ | |||
+ | ===== ' | ||
+ | |||
+ | For their part, Loeb attorneys criticized Ranahan' | ||
+ | * Wanted documents that don't exist. | ||
+ | * Asked for information and documents plaintiffs had already agreed to produce, or had produced two days before the motion was filed, yet still included in this motion. | ||
+ | * Failed to meet with Loeb attorneys to resolve issues that didn't need to be included in the motion. | ||
+ | * Made requests, without legal basis, that were " | ||
+ | * Harrassed plaintiffs by seeking records about Abrams and Lin's public statements, which occurred //after// the lawsuit was filed, therefore having no bearing on the infringement alleged //prior// to the suit. | ||
+ | * Wanted " | ||
+ | |||
+ | <WRAP right round box 50%> | ||
+ | // | ||
+ | </ | ||
+ | |||
+ | ==== Axanar' | ||
+ | |||
+ | Much of the plaintiffs' | ||
+ | |||
+ | > Defendants acknowledged, | ||
+ | |||
+ | The plaintiffs go on to quote many instances where Peters publicly and explicitly disavowed // | ||
+ | |||
+ | |||
+ | [{{ : | ||
+ | |||
+ | ==== Commercial Endeavor ==== | ||
+ | |||
+ | CBS and Paramount attorneys also pointed to "the commercial nature of [Axanar' | ||
+ | * Use of " | ||
+ | * Accepting donations that resulted in providing perks that included infringing Star Trek-branded merchandise. | ||
+ | * Paying " | ||
+ | |||
+ | ===== Testimony and Records Sought ===== | ||
+ | |||
+ | Ranahan, outlined the defense effort to obtain information about: | ||
+ | * **Finances** from all Star Trek copyrighted works going back 50 years, including five television series and 12 movies. | ||
+ | * **Salaries** Documents demonstrating how much the studios paid "every actor, director, and producer for every single Star Trek movie and television show." | ||
+ | * **J.J. Abrams and Justin Lin** Documents relating to Star Trek producer J.J. Abrams' | ||
+ | * **Fan Fiction Policies** Documents and testimony about the studios' | ||
+ | |||
+ | |||
+ | [{{ : | ||
+ | |||
+ | ===== Other Issues ===== | ||
+ | |||
+ | Both sides addressed other related issues. | ||
+ | |||
+ | ==== Gene Roddenberry ==== | ||
+ | |||
+ | The defense asserted throughout its motion that Star Trek creator Gene Roddenberry had originally owned the copyright. By all accounts, Roddenberry never possessed the copyright; he created Star Trek as a work-for-hire under Desilu Productions, | ||
+ | |||
+ | ==== Undisclosed Proceeds ==== | ||
+ | |||
+ | Now in possession of an [[guidelines-podcast|audit]] of Axanar' | ||
+ | ==== Another View of Market Harm ==== | ||
+ | |||
+ | The defense spent a great deal of time describing the many and varied ways it wanted to assess whether Axanar had or would cause any harm to the market for Star Trek. The plaintiffs, however, pointed out that financial records aren't the only way to assess harm: | ||
+ | |||
+ | [{{ : | ||
+ | |||
+ | > To the extent that Defendants are asserting that this [financial] information is relevant to the market harm element of the fair use analysis, this is not an accurate statement of law. As the Supreme Court held in Harper & Row, Publrs. v. Nation Enters. … for the plaintiff to negate the element of market harm, it “need[s to] only show that <wrap hi>if the challenged use should become widespread, it would adversely affect the potential market</ | ||
+ | |||
+ | In other words, CBS and Paramount maintain that if " | ||
+ | |||
+ | Interestingly, | ||
+ | |||
+ | ==== Personal Profits ==== | ||
+ | |||
+ | The plaintiffs tried to turn the tables on the defense, questioning how the defense could use "the financial performance of hundreds of [the studios' | ||
+ | |||
+ | > It is Defendants’ expenditures that are relevant here, not Plaintiffs’. <wrap hi> | ||
+ | |||
+ | <WRAP right round info 50%> | ||
+ | <wrap lo> | ||
+ | </ | ||
+ | |||
+ | ==== Other Fan Films ==== | ||
+ | |||
+ | The defense also asked for documents relating to CBS' relationship with fan films, especially whether it ever issued takedown notices for //Star Trek: Hidden Frontier, Starship Exeter, Bring Back Kirk, Star Trek: New Voyages / Star Trek: Phase II, Star Wreck: In the Pirkinning, Star Trek in Lego, Star Trek: Aurora, Star Trek: Of Gods and Men, Starship Farragut, Star Trek: The Next Animation, Dan Hauser’s Animated Star Trek, Star Trek: Phoenix, Star Trek Continues, Star Trek: Specter, Star Trek II: Retribution, | ||
+ | |||
+ | === Copyright Enforcement === | ||
+ | |||
+ | Ranahan sought records about how or whether the studios enforced their copyright against other fan productions. CBS and Paramount' | ||
+ | |||
+ | === Takedown Notices === | ||
+ | |||
+ | The defense also asked for documents and communications about whether to take down either //Prelude to Axanar// or the " | ||
+ | |||
+ | <WRAP right round box 50%> | ||
+ | //**__« Defendants’ counsel’s repeated misrepresentation of ‘Axanar’ as a fan film is contrary to their client’s own statements. »__**// — //Attorneys for CBS, Paramount// | ||
+ | </ | ||
+ | |||
+ | === Selective Enforcement === | ||
+ | |||
+ | The plaintiffs attempted to forego Axanar' | ||
+ | |||
+ | > Failure to pursue third-party infringers has regularly been rejected as a defense to copyright infringement or as an indication of abandonment. … A self-avowed substitute for other Paramount licensed products adversely impacts the market for derivative works.(([[https:// | ||
+ | |||
+ | === Star Wars Fan Films === | ||
+ | |||
+ | Curiously, the motion includes a request related to Star Wars fan productions, | ||
+ | |||
+ | ==== Missing Titles ==== | ||
+ | |||
+ | Oddly, the defense' | ||
+ | |||
+ | ---- | ||
+ | **Keywords** {{tag> |