Axanar Defense Request for Judicial Notice

Axanar Defense Request for Judicial Notice

Judicial notice? What the heck is a Request for Judicial Notice?

Why, I’m so glad you asked!

According to Cornell University Law School, a Request for Judicial Notice is essentially a document filed with the court to draw attention to certain matters, to wit:

Rule 201. Judicial Notice of Adjudicative Facts

… (b) Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it:

(1) is generally known within the trial court’s territorial jurisdiction; or

(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

(c) Taking Notice. The court:

(1) may take judicial notice on its own; or

(2) must take judicial notice if a party requests it and the court is supplied with the necessary information.

(d) Timing. The court may take judicial notice at any stage of the proceeding.

(e) Opportunity to Be Heard. On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard.

(f) Instructing the Jury. In a civil case, the court must instruct the jury to accept the noticed fact as conclusive. In a criminal case, the court must instruct the jury that it may or may not accept the noticed fact as conclusive.

Now, we’ll look at the 64-page document Axanar‘s defense attorneys filed with the court. Judge Gary Klausner has a lot of reading ahead of him, and so do we.

As always, my credentials are here. This blog post is an expression of my opinion, based upon my training as an attorney and my decades in the fandom. Your opinion may differ, and I welcome it, along with any questions you might have, in the comments section of this post.

Furthermore, as always, I have purchased these documents. Ask for a copy if you like. Feel free. They are a matter of public record. I offer them to you freely. You are a member of the public, and you have the right to know.

This is not a criminal matter. It is a civil one, and the donors are not a party to it. If donors wish redress for their own grievances, they should consider contacting the California Attorney General’s office. The California Statute of Limitations for fraud matters is three years. This will not matter much if any of the parties, either individual or corporate, head into bankruptcy. The donors are not secured creditors, although the proposed secret consortium looking to take over the Ares Studios Valencia, California leasehold might get a chance to be. And secured creditors generally get priority in bankruptcy proceedings.

Now, on with the documents.

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Request for Judicial Notice

Page 1

As always, the document begins with a familiar cover page.

Axanar Defense Request for Judicial Notice

Axanar Defense Request for Judicial Notice Page 1

Page 2

On this page, the defendants requests that the court take notice of certain concepts which should be indisputable facts. For example, if there was some need to establish that defendant Peters was born on such and such a date (it would not be necessary here, but you can see a date of birth could be vital in a case about, say, retirement benefits), then attaching the defendant’s birth certificate would likely be enough. The other side can, of course, dispute even a birth certificate, a fact that we know all too well from the political arena. In this case, we will look at the various documents and items which the defense is asking the court to essentially declare to be factual, thereby removing any future disputes about matters such as authentication.

Understand, though, that if a particular ‘fact’ can be slanted in the defense’s favor, they will attempt to do just that.

Page 3

Page 3 enumerates a list of the attached exhibits.

Page 4

Page 4 continues the enumeration of the exhibits attached to this document.

Page 5

This page is the standard type of signature page we have seen many times.

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[nextpage title=”Exhibits A – D” ]

Page 6

Each exhibit (it might be relettered or even numbered if this matter makes it to trial) has a separate cover page. This is the cover page for Exhibit A.

Page 7

This page was turned on its side for ease of reading. Per the defense, this article is:

… a true and correct copy of STAR TREK:
THE NEXT GENERATION – SEASON 1 DVD, http://www.cbsstore.com/startrek-
the-next-generation-season-1-dvd/detail.php?p=447284

Page 8

This is the cover page for Exhibit B.

Page 9

This was page was turned on its side for ease of reading. Per the defendants, this article is:

… a true and correct copy of STAR TREK:
VOYAGER – SEASON 7 DVD, http://www.cbsstore.com/star-trek-voyagerseason-
7-dvd/detail.php?p=65446

Page 10

This is the cover page for Exhibit C.

Page 11

This image was turned on its side for ease of reading. According to the defendants, this article is:

… a true and correct copy of STAR TREK:
ENTERPRISE – THE COMPLETE SERIES DVD,
http://www.cbsstore.com/detail.php?p=53084

Page 12

This is the cover page for Exhibit D.

Page 13

This image was turned on its side for ease of reading. According to the defense, this article is:

… a true and correct copy of a screenshot
from NOSFERATU (Jofa-Atelier Berlin- Johannisthal, Prana-Film GmbH
(1922)

Fun fact: Nosferatu was the loser in a copyright case brought by Bram Stoker’s widow.

Axanar Defense Request for Judicial Notice

Axanar Defense Request for Judicial Notice Page 13

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[nextpage title=”Exhibits E and F” ]

Page 14

This is the cover page for Exhibit E.

Page 15

Per the defendants, this is a screenshot of the definition of the:

… true and correct copy of ELF,
Merriam Webster, http://www.merriam-webster.com/dictionary/elf

Page 16

According to the defense, this is the continuation of the screenshot on page 15.

Page 17

This is the cover page for Exhibit F.

Page 18

According to the defendants, this is a screenshot of the definition of the:

… true and correct copy of VULCAN,
Merriam Webster, http://www.merriam-webster.com/dictionary/Vulcan

What is most interesting is that the definition of a ‘mockumentary’, from both Motions to Dismiss comes from Dictionary.com. Could it be that the defense is cherry-picking the most favorable and vague definitional sources for its motions? Say it ain’t so!

Interesting how, on Definitions.net, the term is illustrated with images of Leonoard Nimoy in full makeup and uniform, from TOS. The Urban Dictionary mentions Star Trek in its definition of Vulcan. Wordnik mentions Star Trek.

But the most interesting source of a definition of the term comes from the Oxford English Dictionary, a comprehensive work with much more thorough information than Merriam-Webster.

[/nextpage][nextpage title=”Exhibits G and H” ]

Page 19

This is the cover page for Exhibit G.

Page 20

According to the defendants, this article is pages which are:

… true and correct copies of excerpts
discussing various triangular medals from WILLIAM T. R.MARVIN, THE
MEDALS OF THE MASONIC FRATERNITY: DESCRIBED AND ILLUSTRATED
(1880).

Page 21

This is the second page of Exhibit G, per the defense.

Page 22

This is the third page of Exhibit G, according to the defendants.

Page 23

And here is the fourth page of the defense Exhibit G.

Page 24

Here we see the fifth page of the defendants’ Exhibit G.

Page 25

This is the sixth page for Exhibit G.

Page 26

While these medals are kind of interesting, a review of page 42 of the actual book reveals even more shapes and styles for Masonic medals than the defense is enumerating herein.

Also this is the seventh page for Exhibit G.

Page 27

This is the cover page for Exhibit H.

Page 28

According to the defendants, this article is:

… a true and correct copy of a relevant
excerpt from THE ODYSSEY OF HOMER, translated by WILLIAM CULLEN
BRYANT, James R. Osgood and Co. (1871).

Page 29

Here is the second page of Exhibit H.

Page 30

This is the third page of Exhibit H.

[/nextpage][nextpage title=”Exhibits I – K” ]

Page 31

This is the cover page for Exhibit I.

Page 32

According to the defense, this is a screenshot of the definition of the:

… true and correct copy of RIGEL,
Merriam Webster, http://www.merriam-webster.com/dictionary/Rigel

Isn’t it interesting that, instead of bringing judicial notice about Rigel from a respected astronomical source, the defendants are relying on the dictionary? Here’s a table of spectrographic observations from Harvard University. You know, that obscure school in Massachusetts?

 

Page 33

This is the cover page for Exhibit J.

Page 34

According to the defense, this is a screenshot of the definition of the:

true and correct copy of TERRA,
Merriam Webster, http://www.merriam-webster.com/dictionary/terra

Yes, it’s a Latin word. Erin, the first name of lead attorney for the defense, is of Gaelic derivation. Etymology is fun!

Page 35

This is the cover page for Exhibit K.

Page 36

According to the defense, this is a screenshot of the:

true and correct copy of the Flag of the
United Federation of Planets

That is the standard flag, yes. It’s not the flag planted by Kirk in TOS, as is shown on page 27 of the First Amended Complaint.

Axanar Defense Request for Judicial Notice

Axanar Defense Request for Judicial Notice Page 36

Page 37

According to the defense, this is a screenshot of a:

[true and correct copy of] the Flag of the United
Nations

Let’s go to source, shall we? The United Nations official website shows its own flag in another color, a kind of wheat-tan, in addition to the sky blue.

Take away the blue (which isn’t even the same shade), and the differences become more readily apparent.

Axanar Defense Request for Judicial Notice

Axanar Defense Request for Judicial Notice Page 37

[/nextpage][nextpage title=”Exhibits L and M” ]

Page 38

This is the cover page for Exhibit L.

Page 39

According to the defense, this is a screenshot of the definition of the: 

true and correct copy of
TELEPORTATION, Merriam Webster, http://www.merriamwebster.
com/dictionary/teleportation

Sure, except Star Trek does not use that terminology. Rather, they use an in-universe colloquialism, to ‘beam’ someone up. This term is definition 1.1 under the verb section for this term in the Oxford Dictionaries Online. Understandably, Star Trek is not mentioned in that dictionary’s definition of teleportation. And why should it be mentioned there, seeing as the term is not used by this IP?

Page 40

This is the cover page for Exhibit M.

Page 41

According to the defense, this is a screenshot of a:

true and correct copy of Sten
Odenwald’s Who Invented Faster Than Light Travel?,
http://www.astronomycafe.net/anthol/scifi1.html

This exhibit goes on for a few pages, describing various fictional theories of faster than light travel. However, the article fails to mention John W. Campbell’s 1930 fictional theory from his novel, Islands of Space. This concept was reported on in the British Interplanetary Society‘s 2008 issue’s article, Warp Drive – From Imagination to Reality (author J. Gardiner).

Either way, it’s true – Star Trek was not the first fictional realm to describe a faster than light drive of some sort. Rapid travel, allowing practical visits between star systems, is a popular science fiction trope. However, in the collective Star Trek universe, the methodology and technology are engineered, described, and explained in detail. It is not a simple hand wave or magic trick, a bit of deus ex machina for an eager audience.

Page 42

This is the second page of Exhibit M.

Page 43

This is the third page of Exhibit M.

Page 44

This is the fourth page of Exhibit M.

Page 45

This is the fifth page of Exhibit M.

Page 46

This is the sixth page of Exhibit M.

Page 47

This is the seventh page of Exhibit M.

Page 48

This is the eighth page of Exhibit M.

[/nextpage][nextpage title=”Exhibits N – O” ]

Page 49

This is the cover page for Exhibit N.

Page 50

According to the defense, this is a screenshot of the definition of the:

true and correct copy of FEDERATION,
Merriam Webster, http://www.merriamwebster.
com/dictionary/federation

It’s true; Star Trek uses the term to mean a collection of united governments, much like Merriam-Webster’s second definition, to wit: “an organization that is made by loosely joining together smaller organizations”.

Proper and clear use of language is a downright necessity when creating an enduring, large, and complex body of copyright-protected intellectual property.

Page 51

This is the second page of Exhibit N.

Page 52

This is the cover page for Exhibit O.

Page 53

According to the defense, this is a screenshot of the:

true and correct copy of a relevant
excerpt from H.G. Wells, The War of the Worlds, Leipzig (1898)

Page 54

This is the second page of Exhibit O.

Page 55

Then, this page seems to have been intentionally left blank and is the third page of Exhibit O.

Page 56

This is the fourth page of Exhibit O.

Page 57

Also, this is the fifth page of Exhibit O.

Page 58

This is the sixth page of Exhibit O.

Page 59

In addition, this is the seventh page of Exhibit O.

Page 60

This is the eighth page of Exhibit O.

Page 61

Furthermore, this is the ninth page of Exhibit O. While it is interesting that the sixth chapter of this classic public domain work describes a weapon, the weapon itself is introduced in the previous, fifth chapter. 

But no, defendants, phasers are not the same as heat-ray weapons. Per Memory Alpha, “The phaser beam could stun, heat, kill, or disintegrate living creatures. Phasers could damage shields or other systems or even cut through a hull. Phasers could also be used to cut through walls and burrow through rock. The beam could be focused to a single spot or widened to impact a large area.” According to Chapter 5 of War of the Worlds, “Slowly a humped shape rose out of the pit, and the ghost of a beam of light seemed to flicker out from it. Forthwith flashes of actual flame, a bright glare leaping from one to another, sprang from the scattered group of men. It was as if some invisible jet impinged upon them and flashed into white flame. It was as if each man were suddenly and momentarily turned to fire.Then, by the light of their own destruction, I saw them staggering and falling, and their supporters turning to run.I stood staring, not as yet realising that this was death leaping from man to man in that little distant crowd. All I felt was that it was something very strange. An almost noiseless and blinding flash of light, and a man fell headlong and lay still; and as the unseen shaft of heat passed over them, pine trees burst into fire, and every dry furze bush became with one dull thud a mass of flames.” The War of the Worlds weaponry is not only solely heat-based, its effects seem to pass from person to person and pine tree to furze bush. Neither of those characteristics are true of this copyrighted aspect of the whole of Star Trek, a constituent element which is not in the public domain.

[/nextpage][nextpage title=”Exhibit P – End” ]

Page 62

This is the cover page for Exhibit P.

Page 63

According to the defense, this is a screenshot of the definition of the:

true and correct copy of BRIDGE,
Merriam Webster, http://www.merriam-webster.com/dictionary/bridge

Page 64

This is the second page of Exhibit P.

Yes, it’s true! The term ‘bridge’ is used as a term for the area on a ship where officers direct operations. Per Oxford Dictionaries Online, that is a perfectly valid definition. Hurray for the proper use of related and realistic terminology! Oxford Dictionaries Online also offers this helpful use to the word bridge in a sentence:

I have a bridge to sell you

Apparently, the defense is trying to sell the judge that very same bridge.

Conclusion and Next Steps

The plaintiffs have a short window in which to rebut this second motion, and then it’s off to the May 9th hearing/conference. It is entirely possible there will be more activity between now and then; I’ll do my best to get it to you in a timely fashion.

In the meantime, though, donors – who are not a part of this particular case – might want to consider the slanting that has been attempted, not just here, and not just in the defense’s overall statements regarding the completeness and availability of the script, the characterization of the Valencia property as a warehouse or a studio or a country club for all anyone knows. They also might want to consider the defense’s attempts at financial ‘transparency’. Without the backing of a Certified Public Accountant (or anyone with a background in finance and a means of creating a clear and unambiguous spreadsheet), it looks like nothing more than pretend transparency, as disingenuous as trying to claim a twin-like similarity between Max Shreck and Leonard Nimoy.

Regardless of how donors feel about me or the show, about 1701 News, about AxaMonitor, about CBS and Paramount, or even about the law itself, here is a word to the wise, if I may slightly misquote Psalm 119:18 (yes, all versions of the Bible is in the public domain and may be quoted at will, and even altered, for any purpose, under the copyright law of the United States of America):

Open Your Eyes, So That You May See

As always, I thank you for reading my opinions regarding this fascinating matter.

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Janet Gershen-Siegel

Jespah (Janet) is our Social Media Director. She has her Master's in Communications (Social Media) from Quinnipiac University and is one of the Klingons of Long Island. She's a retired lawyer, too.

She's also a published author (Untrustworthy, published by Riverdale Avenue Books; QSF Discovery 2 Anthology, published by Mischief Corner Books; and The Longest Night Watch Anthology 1 & 2, published by Writers Colony Press), and a prolific fan fiction writer. You can find her adding her fanfiction to our forums, or live tweeting our show.

We understand that she can be bribed with pie.
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Janet Gershen-Siegel

Jespah (Janet) is our Social Media Director. She has her Master's in Communications (Social Media) from Quinnipiac University and is one of the Klingons of Long Island. She's a retired lawyer, too. She's also a published author (Untrustworthy, published by Riverdale Avenue Books; QSF Discovery 2 Anthology, published by Mischief Corner Books; and The Longest Night Watch Anthology 1 & 2, published by Writers Colony Press), and a prolific fan fiction writer. You can find her adding her fanfiction to our forums, or live tweeting our show. We understand that she can be bribed with pie.

4 Comments:

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