On Appeal, 'Star Trek Discovery' Still Doesn't Infringe On Video Game's Copyright

from the making-the-tardigrade dept

As one of the most beloved science fiction series in history, it’s no surprise that the Star Trek franchise has seen its share of intellectual property flare ups. With Viacom manning the IP enforcement guns, it only makes sense that the series has been the subject of the company’s failed attempt to pretend Fair Use doesn’t exist, the company’s failed attempts at copyright enforcement taking down an authorized Star Trek panel, and the company’s failed attempt to actually be good humans to the series’ adoring fans.

But this is not a story of Viacom failing at yet another thing. Instead, Viacom/CBS, along with Netflix, won in court, defeating an appeal by a video game maker that tried to claim that one episode of Star Trek Discovery infringed on the copyrights for a video game.

CBS and Netflix re-affirmed an earlier win in the U.S. Court of Appeals for the Second Circuit over a copyright infringement lawsuit filed against both companies due to a plotline in the first season of Star Trek: Discovery that a video game creator alleged infringed upon the plot of his unreleased game. The video game was about a giant tardigrade who traveled through outer space and a similar creature played a key role in Star Trek Discover Season 1.

After the Second Circuit lower court had already dismissed the claims, the Court of Appeals agreed in upholding the lower court ruling that both the video game and the TV show were relying on uncopyrightable scientific facts about tardigrades and their ability to survive in outer space.

While it’s a wonder the lawsuit was ever filed in the first place, why in the world Anas Osama Ibrahim Abdin went on to appeal that initial ruling is a complete mystery. The issue at hand was a story arch in the first season of Discovery which dealt with a giant tardigrade. Tardigrades are real life, tiny creatures that typically survive within water droplets. The most interesting aspect of tardigrades is that they have been shown to have been able to survive in the vacuum of outer space. Abdin’s video game also dealt with tardigrades that survived the outer reaches of space. On essentially this basis alone, Abdin filed both his original suit and the appeal.

This is yet another instance where the idea/expression dichotomy of copyright law comes into play. This dichotomy dictates that copyright can be afforded to specific expression, but not to a general idea. And certainly not to an idea comprised essentially of real life scientific discovery. So, if Discovery told the same story about the same tardigrade creature, merely having a tardigrade in its plot is not somehow infringement just because both works are set in space.

While “[t]he distinction between an idea and its expression is an elusive one,” Crichton, 84 F.3d at 587-88, Abdin’s space-traveling tardigrade is an unprotectible idea because it is a generalized expression of a scientific fact -namely, the known ability of a tardigrade to survive in space.

While the court’s opinion is 40 pages long, that one paragraph does all of its work in affirming the lower court’s ruling.

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Companies: cbs, netflix

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Comments on “On Appeal, 'Star Trek Discovery' Still Doesn't Infringe On Video Game's Copyright”

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Crafty Coyote says:

Well, double jeopardy laws are there to help defendants so they don’t have to end up in wars of attrition if they are innocent or have to pay up double if guilty. Also, Abdin going behind the court’s back to find another court to try and get the original hearing overturned seems mighty disrespectful to me. Reminds me of when I’d "staff-split" the teachers at my school by shopping around to get something I wanted.

This comment has been deemed insightful by the community.
Stephen T. Stone (profile) says:


You need a few quick, horribly simplified lessons on this subject.

  1. “Double jeopardy” refers to criminal law — that is, the defendant cannot be tried for that same crime in the same jurisdiction (thank you, Fifth Amendment). For a more thorough primer, read the Wikipedia article on double jeopardy (the link will take you the United States section of the page).
  2. Lawsuits are civil actions, not criminal cases. Double jeopardy doesn’t apply to civil actions (so far as I know).
  3. Much like the results of a criminal proceeding can be appealed by a convicted defendant, the results of a lawsuit can be appealed to a higher court by the losing side of the suit if they believe they have a point of appeal that could lead to the overturning of a ruling. That isn’t “going behind the court’s back”; it’s going through the system as intended.
  4. Lawsuits that end up in the hands of the Supreme Court of the United States often go through several appeals before the Supreme Court decides whether it will hear the case. That is how the legal system works in the United States. Again, it isn’t “going behind the court’s back” — it’s procedure, plain and simple.
Crafty Coyote says:

Re: Re: Re:

I can understand a defendant filing for an appeal- he doesn’t want to pay up or go to jail- but a plaintiff shouldn’t be able to force multiple re-trials just to exhaust the innocent defendant financially or waste his time. Couldn’t a judge say "Not only do I find the accused innocent, but I’m also going to tell my fellow justices not to hear this case."

Stephen T. Stone (profile) says:

Re: Re: Re:

a plaintiff shouldn’t be able to force multiple re-trials just to exhaust the innocent defendant financially or waste his time

And that doesn’t generally happen. If a plaintiff loses the lawsuit in their initial attempt, they can appeal to a higher court for a reveral of the finding (and a new chance to litigate the facts). The appeals system has limits, too: If the plaintiff appeals to the Supreme Court but the justices refuse to hear the case, the ruling handed down before that refusal will stand. But the plaintiff can’t re-litigate the same case (i.e., the same set of facts) over and over and over only because they lost their lawsuit the first time around.

Couldn’t a judge say "Not only do I find the accused [not guilty], but I’m also going to tell my fellow justices not to hear this case."

This deals more with criminal charges than with civil matters (since civil matters are more of a “liable or not” thing rather than a “guilty or innocent” thing). But if a judge rules that a defendant is not guilty, the state can’t appeal that decision unless it can prove some sort of malfeasance on the part of the judge (e.g., that the judge was bribed into acquitting the defendant). If the state gets a guilty verdict, the defense can still appeal regardless of whether the judge (or the state) thinks the defense should have that right.

As it pertains to civil actions, I believe it works similarly — which is to say, the losing party (whomever that may be) can’t have their right to appeal denied by a judge or the winning party only because of the outcome of that case.

Yes, lawsuits (and criminal trials, for that matter) can be dragged out for years by appeals and possible retrials. Yes, that can cost people/the state a shitload of money and time. But the legal system exists as it does so everyone receives as fair a chance as possible to have their day in court. We recognize the money and time spent to achieve that fairness as the heavy price paid for such fairness. No, the system doesn’t always “play fair” even with an implicit promise of fairness, nor does it always work in the favor of those who are not guilty/innocent. Perfection is an unobtainable goal, though. The best we can do is work towards a “more perfect” system that gets things right far more often than it gets things wrong.

Anonymous Coward says:

Re: Re: Re: Re:

Not sure what you’re talking about here, since it does not seem to be based on the case in the article above, nor yet in the post you are replying to.

The GP did not, though, mention collateral estoppel (also called "Issue Preclusion"), whereby if a court has decided a fact or law in order to come to a judgement, you can’t bring that very same issue back to court. … well, without the defendant pointing out the previous case, causing the judge to ask some very pointed (and perhaps expensive) questions of the plaintiff.

That is effectively your "tell my fellow justices not to hear this case".

Another Kevin (profile) says:

Re: Re: Double jeopardy doesn’t apply to civil actions

The corresponding legal concept is res judicata – ‘the matter has been decided’. It’s grounds for dismissal of the action.

An appeal is not a trial. There’s no jury, and no finding of fact. It’s strictly arguments before a panel of judges that a lower court committed an error of law or procedure that caused a case to be wrongly decided. Ordinarily, in a civil action, if error is found, the appellate court doesn’t try to make a new finding, but rather instructs the lower court on the error and remands the case to the lower court for further proceedings consistent with the correct law or procedure. (Hence, in criminal cases, a defendant who mounts a successful appeal ordinarily isn’t simply set free, but gets a new trial. It’s as if the wrongly conducted trial never happened.

Ordinarily, in criminal procedure, there’s no appeal of an acquittal. The state gets only one chance to prove its case.

Unless error is found, there’s only one path of appeals. For copyright, that’s district court -> [petition for reconsideration] -> circuit court -> [petition for rehearing en banc] -> Supreme Court. The Supreme Court picks and chooses what cases it hears. Petitions for reconsideration and for rehearing are only occasionally granted. When a petition for reconsideration is granted, it’s generally because the judge recognizes that a mistake might have been made. A petition for rehearing goes before the entire panel of appellate judges for the circuit, and is usually granted only when there’s considerable controversy about the correct outcome of the case.

Rekrul says:

Re: Re: Re:

“Double jeopardy” refers to criminal law — that is, the defendant cannot be tried for that same crime in the same jurisdiction (thank you, Fifth Amendment). For a more thorough primer, read the Wikipedia article on double jeopardy (the link will take you the United States section of the page).

I’ve never understood how that works in practice. I mean, I understand the theory, but I’ve seen several news stories where it says the prosecutor is going to "re-try" someone’s case. Or that a person is heading into their third trial for a given crime.

Anonymous Anonymous Coward (profile) says:

Re: Re: Re: Re:

I think those happen in the event of a mistrial, or for some other reason for a trial not being completed. Sometimes there is more than one mistrial in the same case.

Where it gets iffy (at least for me) is when a state court, for example, finds a defendant innocent and federal prosecutors step in and try the person for the same actions, though the charging documents might hit on a different aspect such as a rights violation rather than a murder charge. They claim different sovereignty’s so there is no problem with the defendant being tried twice by the same sovereign.

PaulT (profile) says:

Re: Re: Re: Re:

I’m certainly no expert, but I believe it’s down to how the original trial was ended. If the defendant was acquitted, they can’t be retried. But, if the original trial ended due to a mistrial, hung jury or some kind of misconduct such as jury bribes, then a retrial is possible without violating double jeopardy laws.

Stephen T. Stone (profile) says:

Re: Re: Re:2

In regards to the mistrial/hung jury thing? Per Wikipedia’s article on the Double Jeopardy Clause:

If a judge dismisses the case or concludes the trial without deciding the facts in the defendant’s favor (for example, by dismissing the case on procedural grounds), the case is a mistrial and may normally be retried. Furthermore, if a jury cannot reach a verdict, the judge may declare a mistrial and order a retrial as was addressed in Perez. When the defendant moves for a mistrial, there is no bar to retrial, even if the prosecutor or judge caused the error that forms the basis of the motion. An exception exists, however, where the prosecutor or judge has acted in bad faith. In Oregon v. Kennedy, the Supreme Court held that "only where the governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion."

And yes, a defendant bribing a juror or judge to produce an acquittal nullifies any double jeopardy claims because the defendant made sure jeopardy never attached in the first place. (As for whether a third party bribing a juror or judge nullifies double jeopardy, I do not know.)

Crafty Coyote says:

Re: Re: Re:3 Re:

I think criminal double jeopardy should apply in ALL situations and that re-trials should ONLY occur in confirmed egrgegious situations i.e. the defendant has bribed or threatened jurors to vote for his innocence. The innocent defendant wants to get on with his life, possibly sell or give away the thing he was working on to show the world without fear of court interference. If he has to stand trail again (and again and and again), that’s not justice, that’s just waiting for a guy to crack or miss a court date.

Stephen T. Stone (profile) says:

Re: Re: Re:4

I think criminal double jeopardy should apply in ALL situations and that re-trials should ONLY occur in confirmed egrgegious situations

Double jeopardy can’t apply to all situations because it would then apply to a case being fixed via bribery or a “hung jury” mistrial. The concept must have inherent limits to work as it does. As for your retrials comment: That is generally how things work — which is to say, retrials generally only occur after certain kinds of mistrials (e.g., a hung jury) or if a higher court finds some fault with the original trial (e.g., a juror was bribed, the prosecution withheld exculpatory evidence from the defense). A retrial isn’t some automatic do-over that a defendant gets if they’re found guilty. It’s a guard against violations of civil rights that could put in prison someone who isn’t guilty of, or can’t be fairly proven to have commited, a crime. Appeals courts don’t always get it right, but that lack of perfection will always be better than a defendant having no way to appeal at all.

Crafty Coyote says:

Re: Re: Re:5 Re:

It’s the idea of a plaintiff using the threat of multiple trials to pursue and exhaust an innocent defendant into admitting he was guilty or if he was guilty, having him pay a double punishment, that’s what worries me. Unless copyright trials usually end with a hung or bribed jury, it would be more like the plaintiff "judge-shopping" to get a second (or more) trial, which would seriously impact the defendant’s ability to get on with life. And how dishonorable it is to a justice to have his judgment overturned because the plaintiff went to umpteen judges to mine for a re-trial.

Stephen T. Stone (profile) says:

Re: Re: Re:6

It’s the idea of a plaintiff using the threat of multiple trials to pursue and exhaust an innocent defendant into admitting he was guilty or if he was guilty, having him pay a double punishment, that’s what worries me.

Time for more deeply condensed lessons!

  1. Criminal trials can’t do that shit. When double jeopardy attaches to a case and the defendant is acquitted, the state doesn’t get to retry the defendant for the same crime unless it can prove the defendant was never in jeopardy (i.e., the outcome was fixed). And a defendant also can’t be punished twice for the same crime if they’re convicted.
  2. Civil actions don’t get into “guilty or innocent”; they deal with “liable or not liable”. Think about how OJ Simpson was found “not guilty” of two counts of murder in the criminal trial, but was found personally liable for the wrongful deaths of his victims (we all know he did that shit) in the civil trial. As it pertains to copyright, a civil trial is about whether the person accused of infringing copyright is personally liable for the infringement — and, if they are, how much they have to pay in damages.

how dishonorable it is to a justice to have his judgment overturned because the plaintiff went to umpteen judges to mine for a re-trial

That’s not how the U.S. legal system works. A plaintiff in a civil suit can’t lose the suit (and their appeal[s]), then go re-file the suit with a different judge to get a favorable verdict. Shit, I don’t think even the demigods of disaster at Prenda tried to pull that one, and they lied in open court.

As for having a ruling overturned: That only happens on appeal. And again, appeals are part of the process of the legal system — people are supposed to be able to appeal a ruling if they think it’s bullshit. (Their having no chance of winning their appeal shouldn’t ever preclude them from making it.)

Anonymous Coward says:

Re: Re:

Or had a bone to pick with Viacom, and pounced on the possibility that the judge would be on the side of the smaller creator fighting against the entity who’s known for being pretty fucked up when it comes to copyright.

Smaller creators tend to forget that they can be pretty messed up themselves when it comes to copyright.

Glenn says:

Even if there were something copyright-able in the game and/or ST:D episode, given it was an unreleased game and the plot in ST:D has been out for several prior years, doesn’t that mean that Viacom would hold said copyright were it to exist (and how would anyone outside of the game creator(s) know what was in the game).

Anonymous Coward says:

Re: Re:

All the material which had similarity had been available online for several years before the release of the show, and indeed, given the number of similarities it’s even likely someone involved at the conceptual stage for Discovery saw it at some point, thought it was cool, and filed those ideas away somewhere. The various elements like giant Tardigrades, with the ability to navigate space teleportation, with glowing blue particle effects when they engage in that teleportation, and the ability of a couple of gay human scientists to learn to control this ability from them – all of these point to yes, probably at some point someone involved in Discovery saw it, and maybe didn’t even realise consciously they were using it as inspiration. But this is a case of how copyright law should be applied, rather than how it all too commonly is, you can include a whole bunch of elements another work uses, for exactly the same purposes, and be strikingly visually similar, and also a clearly distinct work.

tom (profile) says:

Giant living critter in space. Not exactly new material for the Star Trek universe. ST-TOS The Immunity Syndrome featured a giant single celled critter. Not exactly a tardigrade but given the effects budget and ability at the time a pretty good try. Wonder how many monster in space games, stories and etc were inspired in part by someone watching that episode?

Reticuli says:

It’s a travesty that this guy lost the lawsuit. Simply saying tardigrades can survive in space is very different than space-folding giant tardigrades or someone merging with one or all the other character attributes and plot developments they were copying. I think this poor guy’s lawyers probably just weren’t of the same quality as the CBS lawyers. That’s a shame and injustice. Fuck STD.

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