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dismissal_opposition [2016/04/14 21:12] – [Proper Copyright Pleading] adds material throughout Carlos Pedrazadismissal_opposition [Unknown date] (current) – external edit (Unknown date) 127.0.0.1
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 <wrap lo>//Main article: [[Lawsuit]] \\ <wrap lo>//Main article: [[Lawsuit]] \\
 See also: [[summary_of_the_lawsuit|Summary of the legal complaint]], [[Motion to dismiss]], [[loeb_loeb|Plaintiffs' attorneys]]//</wrap> See also: [[summary_of_the_lawsuit|Summary of the legal complaint]], [[Motion to dismiss]], [[loeb_loeb|Plaintiffs' attorneys]]//</wrap>
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- <WRAP right round alert 50%> 
-<wrap em>DRAFT</wrap> This article is still being drafted. 
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 APR. 11 — The attorneys for CBS and Paramount filed two briefs today **opposing the defense motion to dismiss** their lawsuit against [[Axanar Productions]] and producer [[Alec Peters]] for infringing on the studios' Star Trek copyrights. APR. 11 — The attorneys for CBS and Paramount filed two briefs today **opposing the defense motion to dismiss** their lawsuit against [[Axanar Productions]] and producer [[Alec Peters]] for infringing on the studios' Star Trek copyrights.
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   * One 26-page document opposing the [[motion to dismiss]] filed two weeks before by the firm defending Axanar, [[Winston & Strawn]].   * One 26-page document opposing the [[motion to dismiss]] filed two weeks before by the firm defending Axanar, [[Winston & Strawn]].
   * A supplemental nine-page document opposing the corresponding [[http://www.gandtshow.com/axanar-defense-request-judicial-notice/|request for judicial notice]] filed by Winston's lead attorney, [[Erin Ranahan]], supporting the dismissal motion.   * A supplemental nine-page document opposing the corresponding [[http://www.gandtshow.com/axanar-defense-request-judicial-notice/|request for judicial notice]] filed by Winston's lead attorney, [[Erin Ranahan]], supporting the dismissal motion.
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 +{{section>dismissal denied#dismissal denied}}
  
 ===== Plausible Copyright Infringement ===== ===== Plausible Copyright Infringement =====
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 ==== Sufficiently Detailed ==== ==== Sufficiently Detailed ====
 +
 +The plaintiffs' brief contends that the level of detail the defense asks for is more appropriate to the [[discovery]] phase of the case rather than the original complaint.
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 +> Defendants insist that Plaintiffs should be required to list each motion picture and television series that is infringed upon by each element in the Axanar Works. … Defendants are on notice, for example, that each time the U.S.S. Enterprise appears in their Axanar Works, they are infringing upon each and every Star Trek Copyrighted Work in which the U.S.S. Enterprise appears. Plaintiffs should not be required to identify at the pleading stage each and every television episode in which this copyrighted element appears.((Plaintiffs' Opposition to Defendants' Motion to Dismiss, p. 15 lines 9-17; 4/11/16.))
  
 ==== Facts Under Defendants' Control ==== ==== Facts Under Defendants' Control ====
 +
 +The dismissal motion asserted the legal complaint made allegations merely "on information and belief," too low a standard for the the copyright claims in the suit. The plaintiffs countered, saying those facts were all under the defendants' control:
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 +>  [The case law] does not prevent a plaintiff from pleading facts alleged “upon information and belief,” particularly when those facts are within the possession and control of the defendant.((Plaintiffs' Opposition to Defendants' Motion to Dismiss, p. 16 lines 23-25; 4/11/16.))
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 +Further, the brief states, many of those facts came from the defendants themselves:
 +
 +> Unlike the [case law] on which Defendants rely, Plaintiffs’ allegations are bolstered by specific facts, and many of these allegations are based on information gleaned from Defendants’ public postings on social media.((Plaintiffs' Opposition to Defendants' Motion to Dismiss, p. 17, lines 8-10; 4/11/16.))
  
 ===== Plaintiffs' Claims Not Premature ===== ===== Plaintiffs' Claims Not Premature =====
 +
 +The defense's dismissal motion claimed an infringement suit was premature since the //Axanar// feature has not been completed. It further claimed that the lawsuit should have waited until, as the plaintiffs alleged, "Defendants are finished making all of their infringing materials,"  and that any plea for an injunction to prevent this would be a prior restraint on the producers'  First Amendment right, the plaintiffs stated.((Plaintiffs' Opposition to Defendants' Motion to Dismiss, p. 17 lines 16-19; 4/11/16.))
 +
 +But, the plaintiffs brief said, "courts have held, in nearly identical circumstances, that the completed and transitory film elements already fixed in a tangible medium of expression" (e.g., paper, film, data on a hard drive) are "actionable material ripe for review, and that requests for injunctions in the copyright context do not violate the First Amendment."((Plaintiffs' Opposition to Defendants' Motion to Dismiss, p. 17 lines 20-23; 4/11/16.))
  
 ==== 'Ripe' Controversy ==== ==== 'Ripe' Controversy ====
 +
 +The principle that an issue should be 'ripe' for a lawsuit is to prevent courts from having to deal with theoretical or abstract disputes. While the defense argued the unfinished nature of //Axanar// meant it wasn't ripe for dispute, the plaintiffs' brief observed:
 +
 +> The Motion fails to acknowledge that … Defendants have //already engaged in infringing conduct// by producing and releasing //Prelude to Axanar//, have completed an infringing “fully revised and locked script” for the //Axanar// Motion Picture, and have already completed and disseminated a scene from the Axanar Motion Picture. Defendants’ completed acts of infringement, as well as their transitory products, such as scripts, are actionable, making this case ripe for review.((Plaintiffs' Opposition to Defendants' Motion to Dismiss, p. 18 lines 12-18; 4/11/16.))
  
 ==== Copyright Injunction & First Amendment ==== ==== Copyright Injunction & First Amendment ====
 +
 +With respect to the defense's First Amendment claims, the plaintiffs' brief pointed out it had not filed a motion for an injunction. Though the legal complaint asks for a permanent injunction as part of its [[summary_of_the_lawsuit#injunction|prayer for relief]], a preliminary injunction would require a separate motion. Without such a motion, the plaintiffs argued:
 +
 +> Defendants’ arguments regarding “prior restraint” are irrelevant and, at best, premature. Defendants are no more “restrained” by the filing of the Complaint than they would be by the sending of a cease and desist letter. Without the filing of a motion for an injunction, Defendants may proceed, but they do so at their own peril.((Plaintiffs' Opposition to Defendants' Motion to Dismiss, pp. 19-20; 4/11/16.))
 +
 +Finally, multiple courts have found the First Amendment offers infringers no protection beyond what is offered by a fair use analysis, according to the Ninth Circuit court:
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 +> First Amendment concerns in copyright cases are subsumed within the fair use inquiry. In other words, if the use of the alleged infringer is not fair use, there are no First Amendment prohibitions against granting a preliminary injunction.((Elvis Presley Enterprises, Inc. v. Passport Video, 349 F.3d 622, 627 (9th Cir. 2003).))
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 +The brief concludes by asserting "enough of the Plaintiffs’ works have already been fixed in the //Axanar// Works for the Court to determine, at the appropriate time, that there is no fair use."((Plaintiffs' Opposition to Defendants' Motion to Dismiss, p. 20, lines 16-18; 4/11/16.))
  
 ===== Opposition to Request for Judicial Notice ===== ===== Opposition to Request for Judicial Notice =====
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 +The request for judicial notice by the defense was meant to convince the judge to admit certain facts (most are references to generic items, characters, shapes, names, etc., claimed as copyright-free elements the defendants are entitled to use without violating Star Trek copyrights). The plaintiffs assert these facts are sufficiently disputed by their arguments for copyright protection of Star Trek elements as a whole as to render the request irrelevant.((Plaintiffs' Opposition to Defendants' Request for Judicial Notice, p. 7; 4/11/16.)) {{:axamonitor-ico.gif?nolink|}}
  
  
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 **Keywords** {{tag>plaintiffs lawsuit}} **Keywords** {{tag>plaintiffs lawsuit}}