Differences

This shows you the differences between two versions of the page.

Link to this comparison view

Both sides previous revisionPrevious revision
Next revision		Previous revision
fan_film_factor [2016/10/27 06:13] – [The Two Pillars] Carlos Pedrazafan_film_factor [Unknown date] (current) – external edit (Unknown date) 127.0.0.1
Line 46: Line 46:
 <wrap em>PARTLY TRUE</wrap> Lane is perfectly correct that the judge granted the defense's requests in the interest of fair play, but that's a far cry from assuming Eick was making a qualitative determination about how "damaging" the evidence might be. His interest is in ensuring both sides get all the evidence they're entitled to in order to build the case they want. That interest has nothing to do with judging how effective that case will be when all is said and done. That's up to the jury and/or the trial judge, [[judge_r._gary_klausner|R. Gary Klausner]], to eventually decide. <wrap em>PARTLY TRUE</wrap> Lane is perfectly correct that the judge granted the defense's requests in the interest of fair play, but that's a far cry from assuming Eick was making a qualitative determination about how "damaging" the evidence might be. His interest is in ensuring both sides get all the evidence they're entitled to in order to build the case they want. That interest has nothing to do with judging how effective that case will be when all is said and done. That's up to the jury and/or the trial judge, [[judge_r._gary_klausner|R. Gary Klausner]], to eventually decide.
  
-[{{ ::marbles.jpg?300|**ALL THE MARBLES** In a court order, Axanar's attorneys won a lot of evidence from the studios, but its focus on actual damages neglects the plaintiffs' right to choose another basis for calculating damages.}}]+[{{ ::marbles.jpg?300|**ALL THE MARBLES** In a court order, Axanar's attorneys won a lot of evidence from the studios, but its focus on actual damages neglects the plaintiffs' right to choose another basis for calculating damages. //Photo/Rich Bowen//}}]
  
 ===== Bounty of Information ===== ===== Bounty of Information =====
Line 64: Line 64:
  
 Lane's recounting of the defense case rests on two pillars: Lane's recounting of the defense case rests on two pillars:
 +
 +<WRAP right box 50%>
 +//**__« Axanar's argument, 'We've earned so little compared to your billions,' essentially claims stealing is OK so long as you do it to someone rich. »__**//
 +</WRAP>
 +
   - Minimal actual damages   - Minimal actual damages
   - Innocent infringement   - Innocent infringement
Line 71: Line 76:
 === Actual Harm === === Actual Harm ===
  
-Market harm is only one of the four factors to be weighed in a fair use analysis, and while it's important, market harm and actual damages are not synonymous, and Jonathan seems to be equating the two.+Market harm is only one of the four factors to be weighed in a fair use analysis, and while it's important, market harm and actual damages are not synonymous, and Lane seems to be equating the two.
  
 Lane characterized the plaintiffs' case for damages as 'actual' first and 'statutory' as a fallback. But the pleadings don't back up that interpretation. In fact, the law gives the plaintiffs, even up to the time that judgment is rendered, the choice of electing statutory damages instead of actual.(([[http://www.copyright.gov/title17/92chap5.html#504|Title 17 of the U.S. Code, Chapter 5, §504 Remedies for infringement: Damages and Profits]], retrieved 10/27/16.)) Of course, for the defense, focusing on actual damages allows them to minimize the infringement while amplifying the defendants' hopes for a ruling of fair use. Lane characterized the plaintiffs' case for damages as 'actual' first and 'statutory' as a fallback. But the pleadings don't back up that interpretation. In fact, the law gives the plaintiffs, even up to the time that judgment is rendered, the choice of electing statutory damages instead of actual.(([[http://www.copyright.gov/title17/92chap5.html#504|Title 17 of the U.S. Code, Chapter 5, §504 Remedies for infringement: Damages and Profits]], retrieved 10/27/16.)) Of course, for the defense, focusing on actual damages allows them to minimize the infringement while amplifying the defendants' hopes for a ruling of fair use.
Line 79: Line 84:
 Furthermore, Lane focuses on the notion that market harm is only something that you can judge retrospectively; in other words, looking back at Star Trek's financials and trying to assess the harm they suffered because of Axanar. But market harm is also about assessing the potential future harm to the copyright holder. CBS and Paramount are arguing that allowing unlicensed productions to create their own works based on Star Trek — and to earn money from them — harms their potential market. Furthermore, Lane focuses on the notion that market harm is only something that you can judge retrospectively; in other words, looking back at Star Trek's financials and trying to assess the harm they suffered because of Axanar. But market harm is also about assessing the potential future harm to the copyright holder. CBS and Paramount are arguing that allowing unlicensed productions to create their own works based on Star Trek — and to earn money from them — harms their potential market.
  
-**Stealing From the Rich**. Axanar's argument that "oh, but we've earned so little compared to your billions," is disingenuous, essentially claiming that stealing must be OK if we're doing it from someone who's rich.+**Stealing From the Rich**. Axanar's argument, "Oh, but we've earned so little compared to your billions," is disingenuous, essentially claiming that stealing must be OK so long as we're doing it from someone who's rich.
  
 The very essence of copyright is that no one gets to control your intellectual property but you; no one gets to earn income from your intellectual property but you. Fair use is the exception that proves the rule. The very essence of copyright is that no one gets to control your intellectual property but you; no one gets to earn income from your intellectual property but you. Fair use is the exception that proves the rule.
Line 96: Line 101:
  
 Also, it's important to remember that this is a civil case. The plaintiffs don't have to prove Peters' willful infringement beyond a reasonable doubt as in criminal cases; they only have to do so by a preponderance of evidence. The plaintiffs may start with the intellectual property class Peters likely took in law school and work their way through his blogs, forum posts, podcasts and media interviews, as well as testimony from depositions. Also, it's important to remember that this is a civil case. The plaintiffs don't have to prove Peters' willful infringement beyond a reasonable doubt as in criminal cases; they only have to do so by a preponderance of evidence. The plaintiffs may start with the intellectual property class Peters likely took in law school and work their way through his blogs, forum posts, podcasts and media interviews, as well as testimony from depositions.
- 
 ==== Financial Incentive ==== ==== Financial Incentive ====