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Lawyer Submits Brief Partially in Klingon for Paramount Language Lawsuit (drive.google.com)
128 points by gortok on Apr 28, 2016 | hide | past | web | favorite | 54 comments

I'm not sure whether, in all the brouhaha over this lawsuit, anyone has paid much attention to the fan film around which it revolves. "Star Trek: Axanar" is currently in production for a mid-2016 release, and the short film/long trailer, "Prelude to Axanar", is a remarkable piece of work in its own right. Don't let the "fan film" label put you off, either; these are professionally produced works, with a compelling storyline and real actors (some of whom will be familiar to fans of the BSG reboot and/or Star Trek: Enterprise), and their take on the Star Trek universe should be a breath of fresh air for anyone frustrated with either Roddenberry's unrealistically optimistic perspective on humanity's future, or JJ Abrams' "lens flare all the things!" brodown.

If you're a Star Trek fan at all, you owe it to yourself to at least give Prelude to Axanar a watch: https://youtu.be/1W1_8IV8uhA

(And as an old Babylon 5 fan, I'm delighted they included a sly reference to that show in Prelude, too. See if you can catch it!)

Wow. Is that really fan film?

I mean... I was just mad that it ended after only 20 mins... I was so hooked I wanted it to keep going.

How does a fan film get those actors? I mean, I can imagine that a lot of ST fans have money, but still.

Thanks for linking. That was awesome.

They had a kickstarter for the preview film (to prove they could do it) and then another for the full.

Also, "fan" might make you think they're amateurs. They're very much not; take a look at the cast and crew list.

Yeah, that why I Was surprised by the term "fan film".

So what exactly does qualify as one? just as long as you don't have the copyright I guess? I mean, at which point is "fan fiction" illegal? is the legality status correlated with the production values and budget?

A fan fiction would generally be a hobbyist film, created without the expectation of profit or even income, financed out-of-pocket.

Basically, all of the things Axanar is not. It's a quality low-budget production, but it's definitely not a fan film.

I dunno. The driving force behind it is Alec Peters, who is basically doing it because he's a huge Star Trek fan. So I think the "fan film" label is not entirely unfair, although in this case it needs the disclaimer I gave it regarding quality.

It doesn't matter that he's a "huge" fan. It matters that he collected outside money to make it, and was planning on making money from sales of the video and licensed products.

Selling the finished film would probably give CBS a stronger basis for suing, but I haven't seen anything to even suggest that Peters or Axanar Productions plan to do so. I'd be interested to know of any evidence to the contrary.

The general line between fan fiction (or any type of fan work) and a professional one is whether the production is trying to make money.

That's why fan films and series are likely to be shut down if they try and market them via Kickstarter or Patreon or a similar service or distribute them on a service where money is involved (like Steam, or as a published work on Amazon).

If they're trying to make money from this Star Trek film and don't have permission from the franchise owners, then it's not particularly surprising that they're being sued. It's a similar situation to a certain Zelda movie that got shut down when it tried to sell tickets to cinema screenings.

There's a reasonable distinction to be drawn between trying to make money off the production, and using Kickstarter to crowdsource the capital necessary to make the production at all. As far as I can tell, Axanar has remained solidly in the latter camp. Is there anything to show otherwise?

Even using Kickstarter to raise capital seems to cause problems for fan works. Probably because while the finished 'product' won't cost money, the copyright owners think of it as someone making money off their property.

Same with Patreon. In the world of Nintendo fan works alone, both Star Fox the Animated Series and Super Mario Bros Z got their Patreon accounts suspended for trying to raise money.

Do I agree with? Not quite, but the general rule seems to be any exchange of money for any part of a fan work is problematic unless the original is in the public domain.

You forgot to link to it: https://youtu.be/1W1_8IV8uhA

Holy crap! These fan films are getting better and better all the time!

I can see why the studios are crapping themselves. No longer are they competing on mere copying, now they are competing on creativity!

Seriously, if fans can do this with Star Trek, I wonder if they should take the central precepts of Star Trek, make their own entirely seperate universe and to hell with it - the studios who refuse to continue much loved series can be cut out entirely and fans can make their own series.

In fact, they could make their own series but have a central authority to allow for basic continuity but maximise creativity. Now that would be remarkable.

The fans could find their own games and spinoffs pretty nicely too.

Well, in a small way, someone did that:

Star Wreck - In the Prikinning (http://www.imdb.com/title/tt0472566/)

available for free here: https://archive.org/details/StarWreckInThePirkining

(These are the guys who then went on to do Iron Sky :D )

And they are also planning a new Star Wreck short film!


I did! Thanks for catching that.

What we have here is one of the true great footnotes in legal history:

"2. Mr. Okrand himself has asserted that the Klingon language, tlhIngan Hol, was received by him from a captured Klingon named Maltz. See Okrand, Marc, The Klingon Dictionary (1985). Thus, Plaintiffs may be estopped from asserting otherwise for the purposes of this litigation. See Arica Inst., Inc. v. Palmer, 970 F.2d 1067, 1075 (2d Cir. 1992) (author who disavowed inventing enneagrams publicly cannot claim invention inconsistently to improve a litigation position)."

IANAL, so I'm hoping I'm understanding this right: because Okrand wrote the dictionary, and in it claimed that he learned it from an actual Klingon, he may not now say he invented it? The argument kinda being, if the language is real, and he wrote a non-fiction authoratative book on it... then he can't be inconsistent about the origins?

It's hard for me to wrap my head around it, but it's hilariously clever if I'm reading it right.

That's just the lawyer being clever -- it's obvious that claims made in a fictional context don't have the kind of weight he's ascribing to them. It's funny, though.

That's the gist. This is the lawyer having (even more) fun with the lawsuit, because why the hell wouldn't you have fun in a job like this?

I'm pretty sure that he and the judge both know that Okrand's claim was a fiction/joke and that this isn't a serious legal notion to be ruled upon.

I have a feeling there is double irony, because the attorney appears to have been one of the attorneys who fought Prenda Law.

Prenda got smacked down pretty hard by a judge who decided to litter his judgement with Star Trek quotes.[1]

1. http://abovethelaw.com/2013/05/prenda-boldly-benchslapped-wh...

  36 English translation: “This will not stand, man.” Latin   
  transliteration: “not Qam ghu'vam, loD!” See also Lebowski, 
  Jeffrey., THE BIG LEBOWSKI, 1998.

Nice try, but it doesn't cite prior case law.

As long as they can convince the court that their original claim was not meant seriously, this shouldn't matter.

The fact that this does not detract in any way from this filing just further attests to its greatness.

See also LCS press release: http://conlang.org/axanar/

Disclosure: I founded the LCS, directed our participation as amicus in this case, and am press contact for this issue. Marc Randazza wrote the awesome amicus brief (linked in OP) pro bono.

Mark Randazza the same lawyer who installed malware on peoples' computers and tried to extort money from them for illegally downloading gay porn?

https://fightcopyrighttrolls.com/2015/07/09/marc-randazza-mu... http://arstechnica.com/tech-policy/2015/11/how-copyright-law...

(ransomware, even - of the 'pay me $4k within 30 days or I'll disable your computer' variety...it doesn't get any more scummy)

For what it's worth, Marc has been my lawyer for several years now, and I have never found him less than fully honest.

In fact, I have found him to have nothing but contempt for copyright and patent trolls. Righthaven, in fact, was taken down in no small part due to his work.


I don't see anything in either of those articles about installing malware on people's computers. They do paint a pretty dire picture of his ethics though.

I used to work in the antimalware industry and personally encountered ransomware samples from Randazza Legal Group representing Corbin Fisher.

It does appear that he is the one mentioned in those articles.

(He and Ken White of Popehat are mentioned in the articles, and Marc's twitter feed mentions this breif)

Sorry, but I don't know anything about that either way, so I can't comment.

Would you use him again - even on a pro bono basis - given this info?

I'm nosey and genuinely curious by the way, this is in no way internet snark.

I think it would be grossly inappropriate for me to comment either way on an issue about our counsel, especially one that he disputes.

What I can say is that he is a brilliant First Amendment lawyer and we are very satisfied with his services.

OK, so if Paramount loses (as I would expect), does this then mean that the lawsuit between Oracle and Google around speaking the language 'Java' gets an interesting precedent?

I don't believe so, the brief covers this claim:

> Thus, this case should not be confused with the recent litigation over the Java computer language. As observed by the Federal Circuit, that case “was not a situation where Oracle was selecting among preordained names and phrases to create its packages.” Oracle Am., Inc. v. Google Inc., 750 F.3d 1339, 1361 (Fed. Cir. 2014) cert den’d 135 S. Ct. 2887 (U.S. 2015). Here, speakers of Klingon are limited to preordained words and syntax. (Page 12)

This is called the 'doctrine of merger', I believe (IANAL):

> Furthermore, the doctrine of merger provides that if an idea “can only be expressed in a limited number of ways,” those means of expression “cannot be protected, lest one author own the idea itself.” (page 9)

Since Klingon words are not an exact transliteration of english words (not a 1-to-1 translation), you can't express the same ideas in multiple ways; so if the language were to be copyrightable, only the person who owns the languages could express those ideas, which seems patently silly.

(My legal analysis isn't; so I'm probably off on exactly why; that's why I spent most of my time quoting from the brief).

Take a look at Charles Duan's recent articles for Slate and Wired, which address this. Google his name + Klingon, Oracle, Lexmark, and/or Arista and you'll get relevant articles.

I am not sure APIs being subject to copyright and pretend languages being subject to copyright are really the same argument?

It's actually pretty related. Expect some articles in the near future that address this exact issue. (I can't in this context, since LCS can't take position on API issues, and I won't scoop our press contacts.)

Isn't it a crucial feature of a precedent that it actually precedes the question to be resolved?

Or does it just require that one judgement precedes the other?

Imagine two related suits filed within weeks of each other, A & B. B, the later-filed one, gets resolved quickly, for whatever reason, maybe it has a narrower focus. It seems the lawyers and judge in A, filed-earlier but still ongoing, could look to B for precedent since it is a relevant piece of settled law.

IANAL, and I can see arguments on both sides of the issue, depending on the exact matter under discussion. But logically, it seems that the judgement is what matters most for precedent, not when the suit was filed or when the incidents happened.

It's an interesting question though. I hope a lawyer can set us straight.

I can only imagine the difficulties and challenges faced by those folks who could only ever speak in nouns.

Really, really long nouns in sentences stated very indirectly.

Don't underestimate the human capacity for circumlocution. The Hungarian language has no word for "to have". Seriously. And they do just fine without it.

Russian doesn't normally use a verb for 'to have' either. It's mainly expressed as a preposition (_u_).

Is this a standard layout for a legal / court document? The lack of padding, especially on the right side really bothers me while reading for some reason.

Also,see C.D. CA.'s local civil rule 11 et seq for their format requirements. (FWIW, they're rather more detailed than is usual for other courts.)


Compare plaintiff and defendant briefs if you like. https://drive.google.com/folderview?id=0BzmetJxi-p0VZUJaQ2ZO... has all the filings.

That's very neat. Could you email me (eg press@conlang.org) so we can collaborate / keep updated?

ITT: IANAL ad nauseum

Does this have ramifications for Tolkien Elvish?

Applies to any conlang, including Quenya et al.

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