Friday, April 29, 2016

Legal Briefs are Much Better in the Original Klingon (Axanar Update)

By CaulynDarr


doink, doink
Paramount thinks they own the Klingon Language.  The Language Creation Society begs to differ. They have enlisted the help of First Amendment bad-ass Mark Randazza.

You may remember him as the guy who defended TastyTaste against that lawsuit from Battlefoam a few years back.  This time he filed an epic amicus brief in support of Axanar.
Now that Klingon has become an actual living language, Paramount seeks to reach out and stake its ownership by using copyright law. But, as “Klingons do not surrender”, neither do those who speak Klingon. Star Trek: The Next Generation, “The Emissary” (orig. air June 29, 1989) (stardate 42901.3). 
It's a lot more of that plus text in Klingon.  You should read it here.  Or more about it at popehat.

The legal arguments are interesting.  You can't own copywrite on a programming language, so I can't see why you should own one on a spoken or written language either.

Outside of the legal stuff, there's some big moral questions here.  To me it feels like media companies like Paramount and CBS are trying to claim ownership on culture itself.  Star Trek has become so pervasive to our society.  It's ideas are ubiquitous in modern culture.  Even the expansion of our technology is driven by the show.

It is also the work of thousands of writers, artists and actors. While you might be able to have legal claim to ownership, I think morally, its a gigantic act of hubris.  In fact, that legal ownership is only because companies like Paramount have re-written the rules of intellectual property to suit their own needs over the common good.

17 comments:

  1. Best legal brief ever!

    I love where he translates part of the Sesame Street theme song into Klingon to show how the nuances of the language force the speaker into a certain aggressive state of mind.

    Or how Paramount's defense that there are no Klingons around to talk to falls flat when he points out that there aren't any Ancient Greeks around either. Yet some still study and speak Ancient Greek (and Fortran) all the time.

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    1. Here's something else that illustrates that first point.....https://www.youtube.com/watch?v=MA_v0YMPN9c

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  2. It's staggering how counter-productive this lawsuit is. I really like the subtext of the brief - outside interest and participation in the IP actually enriches it. Trek is actually more valuable for Paramount with Axanar than without it.

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  3. I am loving these blog posts gents keep it up!

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  4. You just had to know that at some point, a lawsuit about Star Trek was going to get uber-nerdy!

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  5. Mark Randazza was on a podcast today talking about the brief. It's a good listen! https://twit.tv/shows/this-week-in-law/episodes/344?autostart=false

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  6. hey this stuff made NPR...
    http://www.npr.org/2016/05/08/477257970/is-klingon-a-living-language-thats-for-human-courts-to-decide

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  7. Judge denied the MTD http://www.hollywoodreporter.com/thr-esq/judge-refuses-dismiss-lawsuit-crowdfunded-892414?utm_source=twitter

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    1. Interesting. I had expected him to throw out at least a few of the more ridiculous claims (Space Docks, "Action-Adventure Sci-Fi Series", but he decided that even unprotect-able elements may warrant protection as parts of a larger whole.

      Guess the jury will have to sort through it now. :)

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    2. Had a good reply, blogger ate it. Can we switch to discuss yet?

      Anyway.

      The judge is letting/hinting that the case is/should be about look and feel and not specific instances of infringement. Since the decision didn't have to rely on whether the Klingon language is individually copy-writable, the amicus brief was dismissed without prejudice. If CBS/Paramount makes a specific claim to the language during the try, they are free to re-file.

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    3. Take Disqus up with Farmpunk. He doesn't want us to use it.

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    4. I hate having to re-log in, and never being able to remember which password I've used. Disqus never seems to remember me.

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    5. I tend to write my comments in a text editor anyway, before copy/pasting them into Blogger.

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    6. I do feel like CBS/P deserve to be able to argue the forest, instead of just the trees, but that’s not how they structured their complaint. The judge made that call, which strikes me a bit as leading the plaintiff.

      The problem with "look and feel" cases though, is that they've failed for Apple (vs. Microsoft Windows), and Lucasfilm (vs. Battlestar Galactica 1979) to name just two cases I know of. It would be hard to argue that Trek is as distinctive in its “look and feel” right now than either MacOS or Star Wars were at the time of their suits. In part because (dare I say it) of all the fan productions that copy them whole-cloth. Plus every video game and movie that uses thinly disguised Trek imagery.

      The judge also says that the USS Enterprise has been consistently depicted in all Trek series and movies, but that’s absolutely not the case. From a design standpoint, the TOS Enterprise differs greatly from all the film Enterpises (even NuTrek), and if you’re going to base that assumption on saucer-hull-nacelle alone, then half the space games on the market would be exposed to lawsuits.

      I don’t know what legal constraints the judge was under (not being a lawyer), but I feel like he should have thrown out at least the 1/3 of the complaints that were blatantly un-protectable on their own, even as parts of a “forest” argument.

      But a jury will likely throw those out anyway, and that then leaves the 30-ish percent of CBS/P’s complaints that have some merit, plus the forest.

      Where the kitten will meet the warp core is on the question of potential damages.

      Let’s assume the best possible case for Axanar:

      1) They lose on the “forest” argument, and get hit with $150K in statutory damages for copying Trek’s “look and feel”.

      2) They lose on having used 3 Trek characters, and maybe some logos, or a ship design. But these were never formally registered with the copyright office as separate copyrights. So no statutory damages can be assigned for them.

      The jury then decides on what actual damage Axanar has done to CBS/P, which has to take into account all the other fan films that CBS/P have allowed.

      http://www.patent-trademark-law.com/copyright-articles/calculating-damages-copyright-infringement/

      This is where CBS/P’s case is weakest, and a jury could easily come back with a sub-$50K amount for that.

      That would penalize Axanar to the tune of $200K (or $350K if another item they lost on was registered). That would hurt, but they could absorb that hit, stay in business, run another Kickstarter, and go ahead with making a movie where anything that was ruled to be an infringement is removed.

      And then, every fan-production would know EXACTLY which Trek features they can copy without fear. Much as every garage shop now knows just how close to the look of a GW model they can get.

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    7. What I got from it was that parsing individual elements is not something that needs to be done at the MTD stage to prove the Plaintiffs have enough cause to pursue the complaint.

      Also, if I recall correctly, the statutory part of the damages reads as "up to $150,000" per infringement. I think the minimum is $200 per. So potential damages could even be less than that.

      Finally, for some entertainment value, check out this parody of Prelude To Axanar by the guy who does the Stalled Trek parody Amutt Time. https://www.youtube.com/watch?v=_cnHe0oIJIs

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    8. I thought the statutory damages were a set amount, but yeah... A jury could lowball them.

      And yeah... That parody is hilarious. I really like the Federation smiley-face-of-stars logo. Especially combined with the Klingon clown-hat. :)

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