Saturday, October 22, 2016

CBS/Paramount vs. Axanar: A Fistful Of Documents

It's been quite a few months since I've written about the Axanar case. Partly because I've put more attention on SMALL ACCESS, but mostly because there hasn't been a whole lot to write about. What there has been to write about, my friend Jonathan Lane over at Fan Film Factor has covered in good detail, and does the more legal ins-and-outs of this case better than I can.

However, today a ruling came down on a Motion To Compel Discovery filed by Winston & Strawn last month, and I felt the need to break out what Judge Eick ended up compelling, and what he denied.

The judge directed the plaintiffs to:
"1) Serve supplemental responses without objection, and produce all documents responsive to, the following requests (except documents withheld under claim of attorney-client privilege): 14, 35, 36, 37 (limited to the works actually infringed and also limited to documents[which may be summary documents] sufficient to show revenues and profitability), 17 (limited to 2009 to present), 18 (limited to 2009 to the present), 2, 25, and 29.; 2) serve supplemental answers without objection to Interrogatories Nos 8 and 9; 3)produce for deposition a witness or witnesses prepared to testify as to Deposition Testimony Subject No. 28; 4) serve a privilege log identifying with particularity all documents withheld under claim of attorney-client privilege; and 5) to the extent not otherwise ordered herein, fulfill all discovery-related promises previously made by Plaintiffs to Defendants."

The judge then denied the balance of requests made.

So, what does this all mean? In the original Motion to Compel, the defendants cited 20 different items in which they felt the plaintiffs hadn't fulfilled their obligation as regards to discovery. Two of those items (Requests 6 & 7), which had to do with the plaintiffs' chain of custody regarding Star Trek's copyrights and any claims made against those rights, the plaintiffs turned over to the defendants some days after the motion was filed. That left 18 items on the motion.

Of those 18 items, 11 of them were granted (though some were limited in scope by the judge), and 7 were denied. First, I'll go over what the ones granted were.

Request #14 is "All Documents that refer or relate to the commercial impact, if any, that the promotion, production, or release of fan films, including but not limited to fan films inspired by Star Trek, has had or might have on the value of the works from which the fan films are inspired, including but not limited to the Star Trek Copyrighted Works."

Request #35 is "All Documents and Communications demonstrating how the market for Your business has been impacted by the Axanar Works."

Request #36 is "All Documents and Communications discussing the impact, or lack thereof, of the Axanar Works on Your business."

Request #37 is "Documents and Commuications sufficient to show your profitability, revenue, ticket sales, and product sales related to Your Works from 2009 to present."

Request #17 is "All Documents that refer or relate to fan films inspired by Star Trek."

Request #18 has to do with all documents relating to any decision whether to pursue legal action against any other fan films (paraphrasing this one because the direct quote is looong!)

Request #21 is "All Documents and Communications regarding Your decision whther to send a DCMA takedown notice to YouTube or any other person or entity with regard to Prelude To Axanar or the "Vulcan Scene".

Request #25 is "All Documents that refer, relate to, or constitute any actual or potential guidelines for fan films that You have Created, implemented, or considered creating or implementing, including but not limited to any research, analysis, or Communications regarding this subject."

Request #29 is "All Documents and Communications relating to the statements made by JJ Abrams on or about May 19, 2016 (it goes on to describe the different parts of JJ's statement)"

Interrogatory #8 is "Identify and describe the harm or injury You claim to have suffered as a result of Defendants' actions as alleged in the FAC (First Amended Complaint)."

Interrogatory #9 is  "Indentify and describe the damages you seek for each cause of action asserted in the FAC, including by identifying and describing the method(s) used to compute these damages."

Testimony Subject #28 is "All communications between you and JJ Abrams and/or Justin Lin regarding fan films, this lawsuit, and/or Axanar."

Now, I'm not a lawyer, but a lot of what has been compelled looks to A) speak to the factor of Fair Use which is the effect of the work on the potential market of the copyrighted work, B) show that Axanar's works did little actual damage to the plaintiffs, and C) show that Axanar's works were not willful infringement. I'm not entirely sure how the information on how JJ's announcement will be used in the case, but I'm dying to find out the background on that. Also, I'm glad to see that Judge Eick seemingly didn't buy the plaintiffs' line that the term "fan film" is "too broad", as he compelled everything that had to do with them.

Does this win the case for Axanar? Not all by itself, no. After all, compelling discovery of these documents does not mean there are actually documents that exist, or what documents that do exist contain any of the substance the defendants are looking for, or CBS and Paramount managed to involve a lawyer every time they talked about this stuff. However, it does give them the opportunity to find out.

The items Judge Eick denied are:

Request #23 is "All Documents that refer, relate to, or constitue Your expenditures relating to the promotion or production of the Star Trek Copyrighted Works, including but not limited to the salaries paid to the directors, producers, actors, and all other persons involved in the promotion or production of such works."

Subject Matter #14 is "Revenues from the allegedly infringed works, including without limitation how such revenues are tracked and accounted for."

Relatively speaking, this is not that big of a loss. After all, this data will be available in the documents asked for in Request #37. Also, I highly doubt the Judge was going to require them to dig up how much Shatner's toupee from Season 3 cost.....

Request #19 has to do with policies practices and procedures of the plaintiff on sending DCMA takedown notices of works they believe infringe on their copyrights.

Request #20 has to do with the same things as #19 in regards to works that may be fair use.

Request #24 is "All Documents that refer or relate to Star Wars fan films, including but not limited to (a) all Documents that refer, relate to, or constitute Lucasfilm's guidelines and/or attitudes regarding fan films, and (b) all Documents relating to any meetings or other Correspondence between You and any other person or entity, including at Lucasfilm, regarding this subject."

Subject Matter #21 has to do with policies, procedures and practices plaintiffs use to protect from copyright infringement

Subject Matter #22 has to do with the same regarding DCMA takedown notices, as well as how they consider the "fair use" defense.

I don't think it hurts having these denied. It almost seems to me that, on the items that had to do with how the plaintiffs handle things, Judge Eick more or less allowed everything that was more specific (having to do with fan films, or Axanar expressly), and denied the ones that were more general. Request #18 covers most of these items in regards to fan films specifically. Asking for stuff on Star Wars may have just been pushing it a little too far....

On the balance, I'd say the defendants came out ahead in this skirmish. It may not win the war, but it sure didn't lose it, either!