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compel_discovery [2016/09/30 04:58] – [The Role of Financial Records] adds photo Carlos Pedrazacompel_discovery [Unknown date] (current) – external edit (Unknown date) 127.0.0.1
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-<wrap lo>//See also: [[discovery|Discovery]] and [[protective_order|Protective Order]]//</wrap>+<wrap lo>//See also: [[discovery_order|Court Orders Studios to Turn Over Documents]] and [[protective_order|Protective Order]]//</wrap>
  
-Axanar's attorneys sparred with [[CBS]] and [[Paramount Pictures]]' counsel over documents relating to Star Trek fan fiction, and 50 years of financial and copyright ownership records, asking federal [[judge_r._gary_klausner|Judge R. Gary Klausner]] to force the studios to produce relevant witnesses and evidence.+Axanar's attorneys sparred with [[CBS]] and [[Paramount Pictures]]' counsel over documents relating to Star Trek fan fiction, and 50 years of financial and copyright ownership records, asking federal magistrate [[federal_magistrate_judge_charles_f._eick|Judge Charles F. Eick]] to force the studios to produce relevant witnesses and evidence.
  
-In a 62-page joint filing September 29, 2016,  the two sides asked for an October 21 hearing before Klausner to make arguments.+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, Inc., Alec Peters. Motion set for hearing on 10/21/2016 at 09:30 AM before Magistrate Judge Charles F. Eick.))  Though Klausner is overseeing the entire case, Eick is the magistrate who granted the order to protect confidential information gathered through [[discovery]].
  
 ===== Evidence for the Defense ===== ===== Evidence for the Defense =====
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   * The 50-year chain of title for Star Trek's copyrights may have broken links imperiling the studios' standing to bring suit.   * The 50-year chain of title for Star Trek's copyrights may have broken links imperiling the studios' standing to bring suit.
  
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-{{ ::ledger.jpg?300|Ledger}}+{{ :gandtshow.jpg?nolink&150|}} 
 +<wrap lo>**PAGE-BY-PAGE** Attorney Janet Gershen-Siegel of the G&T Show walks through the Motion to Compel Discovery, including the plaintiffs' response, in a comprehensive [[http://www.gandtshow.com/axanar-motion-compel-discovery/|post on the G&T website]].</wrap> 
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 ==== The Role of Financial Records ==== ==== The Role of Financial Records ====
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 ==== Plaintiffs' Refusal ==== ==== Plaintiffs' Refusal ====
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 +<wrap lo>**DOWNLOAD THE** full text of the [[https://www.dropbox.com/s/rjysjk8837ni3j9/Paramount_Pictures_Corporation_v_Axanar_Productions_Inc_et_al__cacdce-15-09938__0055.0.pdf?dl=0|Motion to Compel Discovery]]. 244KB PDF document.</wrap>
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 Ranahan, of [[Winston & Strawn]], complained her counterparts at [[Loeb & Loeb]], the plaintiffs' attorneys, "have refused to produce sufficient documents responsive to those RFPs [requests for production of documents] and Interrogatories."(("Discovery Motion, Joint Stipulation Regarding Defendants' Motion to Compel Discovery from Plaintiffs," p. 2, 9/29/16.)) Ranahan, of [[Winston & Strawn]], complained her counterparts at [[Loeb & Loeb]], the plaintiffs' attorneys, "have refused to produce sufficient documents responsive to those RFPs [requests for production of documents] and Interrogatories."(("Discovery Motion, Joint Stipulation Regarding Defendants' Motion to Compel Discovery from Plaintiffs," p. 2, 9/29/16.))
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 Moreover, the trade secrets, private and proprietary information, would remain confidential under the [[protective order]] already issued by the judge, Ranahan said, so there was no reason to refuse to turn it over. Moreover, the trade secrets, private and proprietary information, would remain confidential under the [[protective order]] already issued by the judge, Ranahan said, so there was no reason to refuse to turn it over.
 +
 +{{page>status}}
  
 ===== 'Deliberately Misleading' ===== ===== 'Deliberately Misleading' =====
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 The plaintiffs go on to quote many instances where Peters publicly and explicitly disavowed //Axanar//'s status as a fan film and instead described it as a professional production. The plaintiffs go on to quote many instances where Peters publicly and explicitly disavowed //Axanar//'s status as a fan film and instead described it as a professional production.
 +
 +
 +[{{ :industry-studios-website.jpg?direct&300|The website for Axanar's commercial production facility, Industry Studios.}}]
  
 ==== Commercial Endeavor ==== ==== Commercial Endeavor ====
  
 CBS and Paramount attorneys also pointed to "the commercial nature of [Axanar's] endeavor, specifically calling out its: CBS and Paramount attorneys also pointed to "the commercial nature of [Axanar's] endeavor, specifically calling out its:
-  * Use of "donations to build out a 'studio' that is being rented out for other non-Star Trek projects."+  * Use of "donations to [[industry_studios|build out a 'studio']] that is being rented out for other non-Star Trek projects."
   * Accepting donations that resulted in providing perks that included infringing Star Trek-branded merchandise.   * Accepting donations that resulted in providing perks that included infringing Star Trek-branded merchandise.
   * Paying "Peters himself and his girlfriend tens of thousands of dollars, and used the funds obtained from Star Trek fans’ donations on travel expenses, tires, car insurance, and gas."(("Discovery Motion, Joint Stipulation Regarding Defendants' Motion to Compel Discovery from Plaintiffs," p. 4, 9/29/16.))   * Paying "Peters himself and his girlfriend tens of thousands of dollars, and used the funds obtained from Star Trek fans’ donations on travel expenses, tires, car insurance, and gas."(("Discovery Motion, Joint Stipulation Regarding Defendants' Motion to Compel Discovery from Plaintiffs," p. 4, 9/29/16.))
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   * **J.J. Abrams and Justin Lin** Documents relating to Star Trek producer J.J. Abrams' and director Justin Lin's statements supporting Axanar.   * **J.J. Abrams and Justin Lin** Documents relating to Star Trek producer J.J. Abrams' and director Justin Lin's statements supporting Axanar.
   * **Fan Fiction Policies** Documents and testimony about the studios' attitudes and policies regarding fan fiction, including cease and desist letters (C&Ds) and takedown notices to websites found to be hosting infringing material.   * **Fan Fiction Policies** Documents and testimony about the studios' attitudes and policies regarding fan fiction, including cease and desist letters (C&Ds) and takedown notices to websites found to be hosting infringing material.
 +
 +
 +[{{ :abrams-lin.jpg?direct&300|**J.J. Abrams** and **Justin Lin** at the May 20 event where Abrams announced the Axanar lawsuit would be "going away in a few weeks."}}]
  
 ===== Other Issues ===== ===== Other Issues =====
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 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, and then for Paramount. Indeed, the plaintiffs observed, "Ms. Ranahan does not explain what basis she has for assuming that Gene Rodenberry ever owned the rights to Star Trek."(("Discovery Motion, Joint Stipulation Regarding Defendants' Motion to Compel Discovery from Plaintiffs," p. 57, 9/29/16.)) 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, and then for Paramount. Indeed, the plaintiffs observed, "Ms. Ranahan does not explain what basis she has for assuming that Gene Rodenberry ever owned the rights to Star Trek."(("Discovery Motion, Joint Stipulation Regarding Defendants' Motion to Compel Discovery from Plaintiffs," p. 57, 9/29/16.))
  
 +==== Undisclosed Proceeds ====
 +
 +Now in possession of an [[guidelines-podcast|audit]] of Axanar's finances, the plaintiffs' newest motion raises the amount of money Peters generated from $1.3 to $1.5 million. It's likely that $200,000 bump represents the [[perks#undisclosed_proceeds|undisclosed revenue]] Peters had steadfastly refused to account for.
 ==== Another View of Market Harm ==== ==== 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: 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:
 +
 +[{{ :joy-of-trek.jpg?200|**NO JOY** for this book whose publication was halted by CBS/Paramount attorney Jonathan Zavin in a 1998 copyright case with similarities to Axanar.}}]
  
 > 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</wrap> for the copyrighted work...This inquiry must take account not only of harm to the original but also of harm to the market for derivative works.”(("Discovery Motion, Joint Stipulation Regarding Defendants' Motion to Compel Discovery from Plaintiffs," p. 24, 9/29/16.)) > 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</wrap> for the copyrighted work...This inquiry must take account not only of harm to the original but also of harm to the market for derivative works.”(("Discovery Motion, Joint Stipulation Regarding Defendants' Motion to Compel Discovery from Plaintiffs," p. 24, 9/29/16.))
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-<wrap lo>**FULL DISCLOSURE** AxaMonitor editor [[user>cpedraza|Carlos Pedraza]] was a writer-producer for //Hidden Frontier// and //New Voyages//, and script supervisor for //Of Gods and Men//.</wrap>+<wrap lo>**FULL DISCLOSURE** AxaMonitor editor [[user>cpedraza|Carlos Pedraza]] was a writer-producer for //Star Trek: Hidden Frontier// (2003-2006) and //Star Trek: New Voyages// (2006-2009), and script supervisor for //StarTrek: Of Gods and Men// (2007).</wrap>
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 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, Star Trek III: Redemption, Star Trek: Reunion, Star Trek: Secret Voyage, Star Trek: Dark Horizon, Star Trek: Absolution, Star Trek: Renegades// and //Star Trek: Horizon//.(("Discovery Motion, Joint Stipulation Regarding Defendants' Motion to Compel Discovery from Plaintiffs," pp. 30-31, 9/29/16.)) 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, Star Trek III: Redemption, Star Trek: Reunion, Star Trek: Secret Voyage, Star Trek: Dark Horizon, Star Trek: Absolution, Star Trek: Renegades// and //Star Trek: Horizon//.(("Discovery Motion, Joint Stipulation Regarding Defendants' Motion to Compel Discovery from Plaintiffs," pp. 30-31, 9/29/16.))
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-//**__« Defendants’ counsel’s repeated misrepresentation of ‘Axanar’ as a fan film is contrary to their client’s own statements. »__**// — //Attorneys for CBS, Paramount// 
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 === Copyright Enforcement === === Copyright Enforcement ===
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 The defense also asked for documents and communications about whether to take down either //Prelude to Axanar// or the "Vulcan Scene" on YouTube. (Ironically, Axanar removed the Vulcan Scene from public view after the lawsuit, and issued its own takedown notices against copies [[yout>zThnJgj-k1Q|posted on YouTube]] and Facebook.)  The defense also asked for documents and communications about whether to take down either //Prelude to Axanar// or the "Vulcan Scene" on YouTube. (Ironically, Axanar removed the Vulcan Scene from public view after the lawsuit, and issued its own takedown notices against copies [[yout>zThnJgj-k1Q|posted on YouTube]] and Facebook.) 
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 +//**__« Defendants’ counsel’s repeated misrepresentation of ‘Axanar’ as a fan film is contrary to their client’s own statements. »__**// — //Attorneys for CBS, Paramount//
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 === Selective Enforcement === === Selective Enforcement ===
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 === Star Wars Fan Films === === Star Wars Fan Films ===
  
-Curiously, the motion includes a request related to Star Wars fan productions, fan film guidelines used by Lucasfilm, and any communications between studio personnel and Lucasfilm employees. The plaintiffs argued this request was overly broad and irrelevant, particularly since //Axanar// is not a fan film.(("Discovery Motion, Joint Stipulation Regarding Defendants' Motion to Compel Discovery from Plaintiffs," pp. 45-46, 9/29/16.))+Curiously, the motion includes a request related to Star Wars fan productions, fan film guidelines used by Lucasfilm, and any communications between CBS or Paramount personnel and Lucasfilm employees. The plaintiffs argued this request was overly broad and irrelevant, particularly since //Axanar// is not a fan film.(("Discovery Motion, Joint Stipulation Regarding Defendants' Motion to Compel Discovery from Plaintiffs," pp. 45-46, 9/29/16.))
  
 ==== Missing Titles ==== ==== Missing Titles ====