Comment by dctoedt | Hacker News Reader

Comment by dctoedt | Hacker News Reader

Some observations:

1. If the studio had filed a lawsuit, there's a very good chance that, after seeing the Asimov estate's permission, the judge would have quickly tossed the case on summary judgment --- and quite possibly awarded the student his attorneys' fees under section 505 of the Copyright Act,[1] as happened recently in several of the Righthaven copyright-troll cases.[2]

2. A copyright lawyer might have been willing, for little or no money, to explain the facts of life to the studio lawyer on behalf of the student. The student then might have been able to respond to the studio lawyer (with utmost politeness, of course), "do what you gotta do." He could then have started making his movie and waited to see what the studio did.

3. It's likely that any lawsuit by the studio would have been quickly resolved one way or another, without much in the way of legal expense:

• If the student had won quickly on summary judgment, the odds are that his lawyer would have been paid by the judge.

• If the student had found he wasn't going to win quickly on summary judgment, then he could have caved to avoid further expense. The odds are that the studio would have gone along --- and might even have been willing to pay the student's legal fees just to get rid of the matter.

4. Either way, both the student and his lawyer would have gotten at least some reputational benefit from the resulting publicity.

5. Heck, they could have proposed settling the case along the lines that Southwest Airline's CEO settled a trademark dispute years ago over the term "Just Plane Smart": Herb Kelleher arm-wrestled the other side's CEO for charity, resulting in good PR for both sides.[3]

6. All this assumes, of course, that the article accurately states all the relevant facts. Lawyers know from hard experience that this always has to be confirmed.

[1] http://www.law.cornell.edu/uscode/text/17/505

[2] http://www.copyrighttrademarkmatters.com/2011/11/01/righthav...

[3] http://en.wikipedia.org/wiki/Southwest_Airlines#.22Just_Plan...

[Edited for style]

  > It's a pity the student didn't talk to a copyright
  > lawyer (with litigation experience) before caving.

How much would that cost him in the US?

And how likely is that the court would actually grant him the money? The link says "at court’s discretion". Has it actually ever happenned before?

If he was at university then surely there was a clued up professor there who could have given him all the advice he would have needed.

It could've been free first consultation, it could've been a few hundred dollars - if OP had already budgeted $10,000 on the project, a small price to pay.

Agreed. Most attorneys, even back then, usually give you your first consultation free. Attorneys are also supposed to take several cases per year on a pro bono basis. I think this would have been great for both parties.

Attorney gets plenty of press for taking on the studio (and most likely enough business afterwards to pay for the costs and work he did), student gets free legal representation, and the big studio looks horrible attempting to quash a students film he needs to graduate.

I'm somewhat surprised (given that all the faculty were sympathetic) that nobody directed the student to the university's counsel.

Just saw your comment after posting mine. Agree.

Unfortunately, in my anecdotal experience schools not infrequently do not fulfill the role of advocate well. (Sometimes, they do, though.)

In a case like this, I think it can somewhat be "luck of the draw". With the initial/primary contact point with the school being the professor, some professors know what to do or at least will tackle the problem. Others are at a loss, or don't care. (I'm not saying that's the case, here; they did pass him, although leaving him without a thesis project.) Remember, you're dealing with an academic, when what you may need is a lawyer.

> Has it actually ever happenned before?

Yes -- I updated my first comment at note [2].

That's great news, thanks.

I'll follow up by asking how a student is supposed to know all this?

And I'll ask, where were the professor and the school's legal counsel? If the student didn't know to go to the latter, the professor should have guided him in this matter.

The school should have served as an advocate for the student. They clearly failed.

>I'll follow up by asking how a student is supposed to know all this?

The lawyers are supposed to know all this. The student is supposed to ask around and find a lawyer.

> 1. If the studio had filed a lawsuit, there's a very good chance that, after seeing the Asimov estate's permission, the judge would have quickly tossed the case on summary judgment

Surely when the studio optioned the rights, they got exclusivity as part of the contract. That is: it doesn't matter if he got "permission": at that point Asimov's estate had no right to grant such a thing.

From how I read the story, it made it seem like he got permission before the studio did. Wouldn't that make the exclusivity point moot?

> Surely when the studio optioned the rights, they got exclusivity as part of the contract. That is: it doesn't matter if he got "permission": at that point Asimov's estate had no right to grant such a thing.

IIRC, if the studio didn't record a grant of exclusivity in the Copyright Office, then the Asimov estate's subsequent grant of permission to the student would not have been binding on the student. That is, the studio might have a claim against the Asimov estate for breach of contract, but the estate's grant of permission to the student would still have been valid.

This assumes, of course, that the Asimov estate did indeed grant an exclusive to the studio; that's one of the (probably-many) things we don't know about the situation.

Furthermore, you get a lot of publicity by being the target of major litigation. Especially if you end up winning.

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