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tardigrades_pre_motion [2018/12/07 02:04] – [Lawsuit Fails to State a Claim] updates with Abdin's Dec. 5 response Carlos Pedrazatardigrades_pre_motion [2019/01/17 15:26] (current) Carlos Pedraza
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 <fs smaller>Star Trek: Discovery//'s lead character, Michael Burnham (Sonequa Martin Green), on trial.//</fs> <wrap indent><fs x-small>Image/CBS</fs></wrap> <fs smaller>Star Trek: Discovery//'s lead character, Michael Burnham (Sonequa Martin Green), on trial.//</fs> <wrap indent><fs x-small>Image/CBS</fs></wrap>
  
-====== CBS Seeks Meeting with Judge to Dismiss Copyright Case Against Discovery ======+<fs x-small>UPDATED JANUARY 4, 2019<wrap indent> |</wrap><wrap indent> ESTIMATED READING TIME 5 MINS</wrap></fs>
  
-//**Attorneys Assert Game Developer'Copyright Infringement Case Relies on Unprotectable Ideas**//+====== CBS Asks Judge to Dismiss Copyright Case Against Discovery ====== 
 + 
 +//**Abdin'Lawyers Signal They're Filing a Third Amended Legal Complaint**//
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-Lawyers for CBS and Netflix this week asked the judge in the case filed by game developer Anas Abdin for a meeting before their planned filing of a motion to dismiss in Abdin's [[tardigrade_october#second_amended_complaint|lawsuit]] alleging copyright infringement in the development of //Star Trek: Discovery//.+Lawyers for CBS and Netflix have asked the judge in the case filed by game developer Anas Abdin for a meeting before their planned filing of a motion to dismiss in Abdin's [[tardigrade_october#second_amended_complaint|lawsuit]] alleging copyright infringement in the development of //Star Trek: Discovery//. 
 + 
 +===== Third Complaint Expected ===== 
 + 
 +<wrap em>UPDATE</wrap> On January 2, 2019, a status letter from both plaintiff and defendants to the new judge in the case revealed that a third [[tardigrade_october#second_amended_complaint|amended complaint]] was expected to be filed in the case; CBS' motion to dismiss won't be filed until after that amended complaint is filed, the letter stated. 
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 +<fs smaller><wrap em>READ</wrap> the January 2, 2019, status letter that signaled a third amended legal complaint was expected to be filed by Anas Abdin. The 11-page letter also provides a brief recap of arguments in the case so far. Download the [[https://www.dropbox.com/s/nllmhj4lau60kmx/Status%20Letter%20010219.pdf?dl=0|status letter here]] (PDF).</fs> 
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-<WRAP right round important 50%+===== Conference Scheduled ===== 
-<wrap em>Plaintiff'Response</wrap\\ + 
-<fs smaller>Lawyers for Anas Abdin submitted letter to Judge Buchwald December 52018replying to the grounds for dismissal cited by CBS and Netflix two days beforeThe reply will be detailed in our accompanying analysis article, [[breakdown_dismissal_letter|Breaking Down the Case for Dismissing the Tardigrades Suit]].</fs>+U.S. District Judge Lorna G. Schofield scheduled a pre-motion conference regarding the defense's planned motion to dismiss the case. That conference will be January 8, 2019, in New York. Ahead of that meeting, each side must filed a status letter and case management plan by January 2. 
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 +**New Judge Assigned** \\ 
 +<fs smaller>Thé Tardigrades lawsuit was reassigned to U.S. District Judge Lorna G. Schofield on December 11, 2018. No reason was cited in the case docket but such changes are not uncommon, and usually intended to [[http://www.nysd.uscourts.gov/prose?faq|even out caseloads]] among judges in the district, according to the court'website. </fs
 +[{{ ::judge_shofield.jpg?100|<fs smaller>**Judge Schofield**</fs>}}] 
 +<fs smaller>Schofield, former federal prosecutor, was appointed to the bench by President Barack Obama in 2012. Like Judge Buchwald, Schofield also requires a pre-motion conferencewhere "motions will be resolved … to the extent possibleIf briefing is found to be necessarythe issues to be considered will be defined and a briefing schedule and return date set."(([[http://www.nysd.uscourts.gov/cases/show.php?db=judge_info&id=1584|"Individual Rules and Procedures for Civil Cases,"]] Lorna G. Schofield United States District Judge, p. 7, retrieved 12/11/18.))</fs>
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 In a December 3, 2018, letter to federal District [[Judge Naomi Reice Buchwald]], CBS/Netflix attorney [[Wook Hwang]] asserted that Abdin's lawsuit fail to state a valid claim of [[copyright infringement]]. Hwang's letter states Abdin failed to: In a December 3, 2018, letter to federal District [[Judge Naomi Reice Buchwald]], CBS/Netflix attorney [[Wook Hwang]] asserted that Abdin's lawsuit fail to state a valid claim of [[copyright infringement]]. Hwang's letter states Abdin failed to:
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   * Demonstrate how his unpublished game, Tardigrades, was substantially similar to //Discovery//.   * Demonstrate how his unpublished game, Tardigrades, was substantially similar to //Discovery//.
   * Provide links to the allegedly infringed works online,  other than submitting a short treatment describing the game.   * Provide links to the allegedly infringed works online,  other than submitting a short treatment describing the game.
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   * State a valid claim to rights under the international copyright agreement, the [[wp>Berne_Convention|Berne Convention]] — Abdin is a Kuwaiti resident — and under the U.S. [[https://www.americansforthearts.org/by-program/networks-and-councils/public-art-network/faq/what-is-vara|Visual Artist Rights Act]] of 1990 (VARA), which recognizes the concept of creators' lasting [[wp>Moral_rights_(copyright_law)|moral rights]] to their work.    * State a valid claim to rights under the international copyright agreement, the [[wp>Berne_Convention|Berne Convention]] — Abdin is a Kuwaiti resident — and under the U.S. [[https://www.americansforthearts.org/by-program/networks-and-councils/public-art-network/faq/what-is-vara|Visual Artist Rights Act]] of 1990 (VARA), which recognizes the concept of creators' lasting [[wp>Moral_rights_(copyright_law)|moral rights]] to their work. 
   * Establish Netflix's liability in the case since the streaming service only distributes //Discovery// overseas, and the Copyright Act does not apply outside the United States.   * Establish Netflix's liability in the case since the streaming service only distributes //Discovery// overseas, and the Copyright Act does not apply outside the United States.
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-<wrap lo>**Analysis » //[[breakdown_dismissal_letter|Breaking Down the Case for Dismissing the Tardigrades Suit]]//**</wrap>+<wrap lo>**Analysis » //[[breakdown_dismissal_letter|Breaking Down the Case For and Against Dismissing the Tardigrades Suit]]//**</wrap>
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-==== Abdin Concedes ====+==== Abdin Concedes Arguments ====
  
-In their December 5 reply, Abdin's attorneys appeared to concede some of Hwang's arguments:+In a [[breakdown_dismissal_letter|December 5 letter]] to the judge replying to Hwang[[tardigrade_lawsuit_trouble#plaintiff_s_attorneys|Abdin's attorneys]], John Johnson and Allan Chan, appeared to concede some of CBS/Netflix's arguments:
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   * Late copyright registration disqualified the game developer from seeking statutory damages and attorneys' fees under the U.S. Copyright Act. Abdin's attorneys appeared to [[breakdown_dismissal_letter#Not Covered Under Berne Convention, Visual Artists' Law|shift their claims]] for damages and fees to VARA.   * Late copyright registration disqualified the game developer from seeking statutory damages and attorneys' fees under the U.S. Copyright Act. Abdin's attorneys appeared to [[breakdown_dismissal_letter#Not Covered Under Berne Convention, Visual Artists' Law|shift their claims]] for damages and fees to VARA.
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 [{{ :tardigrades_lawsuit_10_31_18.jpg?350|**SUBSTANTIALLY SIMILAR?** CBS/Netflix attorneys claim the similarities between the Tardigrades character (left) and //Star Trek: Discovery//'s Michael Burnham are merely superficial.}}] [{{ :tardigrades_lawsuit_10_31_18.jpg?350|**SUBSTANTIALLY SIMILAR?** CBS/Netflix attorneys claim the similarities between the Tardigrades character (left) and //Star Trek: Discovery//'s Michael Burnham are merely superficial.}}]
 +
 ===== Conference Required by Judge ===== ===== Conference Required by Judge =====
  
-A letter like that sent by Hwang of the firm [[Loeb & Loeb]] is not generally required under the [[wp>Federal_Rules_of_Civil_Procedure|Federal Rules of Civil Procedure]], but Judge Buchwald's [[http://www.nysd.uscourts.gov/cases/show.php?db=judge_info&id=1406|individual rules]] require a pre-motion conference before any motion can be filed; attorneys therefore had to submit a letter explaining the basis of their upcoming motion asking the judge to formally dismiss Abdin's case. +A letter like that sent by Hwang of the firm [[Loeb & Loeb]] is not generally required under the [[wp>Federal_Rules_of_Civil_Procedure|Federal Rules of Civil Procedure]], but both Judge Buchwald and Judge Schofield's [[http://www.nysd.uscourts.gov/cases/show.php?db=judge_info&id=1406|individual rules]] require a pre-motion conference before any motion can be filed; attorneys therefore had to submit a letter explaining the basis of their upcoming motion asking the judge to formally dismiss Abdin's case.
-==== Abdin's Reply Due December 6 ====+
  
-Abdin's lawyers filed their reply December 5. In the meantime, the request for a pre-motion conference also brings to a halt the ticking clock on CBS/Netflix filing their formal reply to the lawsuit until after the conference.+The request for a pre-motion conference effectively halts the ticking clock on CBS/Netflix filing their formal reply to the lawsuit until after the conference.
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-//**__« Most of Abdin’s claimed ‘similarities’ are generic and stock elements that are used in countless works. »__**// <wrap indent>//— CBS attorney Wook Hwang, in a letter to Judge Buchwald//</wrap>+//**__« Most of Abdin’s claimed ‘similarities’ are generic and stock elements that are used in countless works. »__**// <wrap indent>//— CBS attorney Wook Hwang, in a letter to the judge//</wrap>
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 +
 +==== Case Management Plan ====
 +
 +Judge Schofield also required both sides to file a status letter and case management plan by January 2, before the conference six days later.
  
 ===== Grounds for Dismissal ===== ===== Grounds for Dismissal =====