Larry Podder or Harry Potter?

You are a newly promoted supervisor for Playing with God, a company that makes computer games for a Christian bookstore. One of the directors on the corporate board is Jon Bakker, a long lost nephew of TV evangelists Jim and Tammy Faye. Jons son, Larry Bakker, is a member of your department. He writes the story lines that go into the different games. He has very little computer expertise, but he does have a creative writing degree and writes really great Bible-based game stories. One of his games has won an award in the Christian Video Game arena. This morning you are served with a lawsuit from Nintendo. It alleges that your last game, Praying with Larry Podder, violates their exclusive right to market games under the Harry Potter label. You are incensed. Larry Podder was the invention of Larry Bakker and was actually a story he made up about himself, drawing on his own childhood experiences. At least, that is what he told you. You personally know that the aunt in the game looks just like Tammy Faye. To make matters worse, you receive a phone call from your boss that Warner Brothers is preparing a lawsuit, unless you agree right now to pull Praying with Larry Podder from shelves and send them all the profits from the game, to date. Praying was your number one seller this year and could move your company into the first place rankings for christian video games. Your boss, a company vice president, demands to know if the story line is even remotely like Harry Potter. You are horrified to admit you have no idea, having neither played the game nor having read Harry Potter. As if this wasnt bad enough, your boss states, And why do you suppose Warner Brothers mentioned the Napster case in the call? Were not hosting file sharing in that game are we? You are suddenly stricken as you remember that one of the really cool things about the game is that players can go online and share prayers, sheet music for hymns, and Christian music CDs in MP3 format. That was one of the best parts of the game. The vice president states, The Warner Bros. exec said that his daughter just bought the game and called it the Christian Napster. Furthermore, I have a message from J. K. Rowlings attorney I have to return next. You better have an answer for this! He hangs up. Youre not a lawyer, but you did hear about Napster. Its time to do some research. You need to call in Larry and find out about this video game. 1. What things do you need to find out from him? 2. If you are allowing file sharing on this game, does this open you up to liability for violation of the Digital Millennium Copyright Act? 3. If it is true that the game is about Larry Bakkers life and not Harry Potters, what will you need to prove to defend against this lawsuit? 4. Will being a Christian organization protect you from this lawsuit under the First Amendment? Is it analogous to parody?

Pick one of the above and respond to it, or respond to a classmates response. More questions and deeper movement to follow!

1. What things do you need to find out from Larry? 2. If you are allowing file sharing on this game, does this open you up to liability for violation of the The Digital Millennium Copyright Act? 3. If it is true that the game is about Larry Bakkers life and not Harry Potters, what will you need to prove to defend against this lawsuit? Ans: 1. What things do you need to find out from Larry? - Where did the idea of this video game come from? - What other copyright, trademarks, patents, industrial design rights were taken from other sources? - Was he aware of this story sounding much like Harry Potter? 2. If you are allowing file sharing on this game, does this open you up to liability for violation of the The Digital Millennium Copyright Act? - Yes! Online file sharing opens up a huge opportunity for DMC to happen. Title II: Online Copyright Infringement Liability Limitation Act DMCA Title II, the Online Copyright Infringement Liability Limitation Act ("OCILLA"), creates a safe harbor for online service providers (OSPs, including ISPs) against copyright infringement liability, provided they meet specific requirements. OSPs must adhere to and qualify for certain prescribed safe harbor guidelines and promptly block access to alleged infringing material (or remove such material from their systems) when they receive notification of an infringement claim from a copyright holder or the copyright holder's agent. OCILLA also includes a counternotification provision that offers OSPs a safe harbor from liability to their users when users claim that the material in question is not, in fact, infringing. OCILLA also facilitates issuing of subpoenas against OSPs to provide their users' identity. http://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act Before asking if Larry is aware that the story sounds like Harry Potter we would first need to find out what the story for Harry Potter is (since the case reference says we have no idea) and then find out from Larry what the story for Praying with Larry Podder is. The issue may only be that Larry Podder sounds too Similar to Harry Potter and the similar name may be taking advantage of the success of Harry Potter. We should also be asking Larry if he knows anything about Harry Potter and if he has seen the movies and read the books.

In terms of the game being a violation for the DMCA, it is most likely in violation unless the content being shared is royalty free and license free. By the sound of things though, it does not seem like this is the case. 1) What things do you need to find out from Larry? a. Where his idea originated from as in was the game based on childhood memories of other biblical games once played, or was it based off someone that he knew that played a huge part of his church involvement, etc. b. Whether or not he knowingly based his version of the game off of a similar game. c. Whether or not he may have viewed leaked material for any of the Harry Potter label. 2) If you are allowing file sharing on this game, does this open you up to liabilty for violation of the Digital Millennium Copyright Act? According to the article that I read, which states that the "United States Copyright law, including the Digital Millennium Copyright Act (DMCA), which the United States Congress passed in 1998 to address online activity, bars the unlawful reproduction, distribution or performance of copyrighted Works. Reproducing, distributing or performing a copyrighted Work without permission from the owner of the copyright in that Work is unlawful unless the reproduction, distribution or performance qualifies for an exception to infringement, such as fair use. If you are sharing copyrighted Works, either via peer-to-peer file sharing or in any other way, the easiest way to make sure that you are reproducing, distributing or performing the Work lawfully is to get permission from the person who owns the copyright in the Work for permission. One way to get permission is to subscribe to a service that gives you access to Works with a license (i.e., with permission) to use them in specific ways. Another way to get permission is to ask the person who owns the copyright in the Work. If you do not have permission (either via a subscription, license or individually), you are taking a risk." With the information provided in the scenario, I am leaning towards the answer of no, Larry does not seem to be in violation of the Digital Millennium Copyright Act. 3) If it is true that the game is about Larry Bakker's life and not Harry Potter's, what will you need to prove to defend against the lawsuit? I would need to prove that the game originated from the ideas of Larry Bakker and that the storyline/characters for the game is not associated with any of the Harry Potter storylines/characters. Proof of this would be ideas that are literally written/drawn out, drafts of storyline, etc. Reference: http://www.dos.uci.edu/conduct/students/student-dmca.php The answer is it depends upon what is being shared. If the file that is being shared is copyright then it is protected under the Digital Millennium Copyright Act, there are exception such as in education. In the case in our discussion above the file sharing would be legal if the

users paid to use the games on the platform and accepted the terms and conditions then there will not be a problem for the online gaming. If the programming left these off or if Larry can not prove that the idea of the game was his idea. We would first need to further ask him where the idea came from, if he has read or watched Harry potter, did we pay for the media sharing as those are probably all copyrighted material. In addition to Larry, I as a supervisor should be in the game playing, and now possibly research Harry potter and look for similarities- possibly before talking with Larry to question those similarities. Copyright Laws protects the expression of an idea, it doesn't protect the ideal itself. Another author is free to describe the same theory in his or her own words without violating copyright law. He don't have to give the original author any credit but, its best that he does. Copyright law protects the expression of facts and ideas, not the ideas and facts themselves. Ideas are fair game for everyone to express in their own words. E.g. Dimitri Yernetz wrote a series of books about a young magician under the title Tanya Grotter, written after J. K. Rowling's Harry Potter. Also, the case states that Larry Podder was the invention of Larry Bakker and was actually a story he made up about himself, drawing on his own childhood experiences. I would say that there is a difference between the idea and story line. If the story line are exactly same or similar, we might then further investigate whether it is violation of Copyright law or not. Going online and sharing prayers, sheet music for hymns, Christian music CDs in MP3 format are all ideas or methods of sharing/communication. That can't be subject to copyright violation. If the company had violated in terms of copying technology or software that faciliates the online sharing, then according to me , that would be copyright violation. References: http://publishing.wsu.edu/copyright/copyright_doesnt_protect.html What about copyright of the files exchanged? Such as songs within the video came. If this is being called a version of napster... would there be a problem with the program being able to data share, especially when it came to music? The Digital Millennium Copyright Act makes the development or use of software that makes it possible for people to access materials that are copyright protected illegal. It also makes it illegal to disseminate copyright protected materials. This would include music files, DVDs, or software programs. Being the game allows players to go online and share sheet music for hymns, and Christian music CDs in MP3 format I think that this would be found illegal under The Digital Millennium Act. Although this case did uncover a grey area to me, are prayers copyrighted? We definitely need to consider the Napster decision and the DMCA to see how they guide our assessment of the Podder situation. A prayer, just as any other written work, might be able to be copyrighted. Seeing as how a prayer, just as any other written work, a post it or anything can be copyrighted, it seems as though my company should have been more careful when making this Larry Podder game. It sounds similar to Harry Potter and with all the lawsuits about things like that these days as a company we should have already known to be careful. I think that however, material copied from sources that are not public domain or compatibly licensed without the permission of the copyright holder (unless brief quotation used in accordance with non-free content policy and guideline) is likely to be a copyright violation. Even inserting text copied with some changes can be a copyright violation if there's substantial linguistic similarity in creative language or structure (this can also raise problems of plagiarism). Such a situation should be treated seriously, as copyright violations not only harm to your redistributability, but also create legal issues.

The company, Playing with God, should pay special attention to Warner's claim, it might cost the company everything. Source: http://www.law.cornell.edu/copyright/cases/239_F3d_1004.htm http://www.wired.com/threatlevel/2007/08/napster-trial-e/ My first question to Larry would be "how did you get the idea for the video game", "what proof do you have of were you came up with the ideas". I would also ask that now and in the future that I would want to read all the ;storylines. I would read the story line for this games and see if it is similar to the Harry Potter games. I would also want to see all records on how Larry came up with the name of game the names can be call similar. I would initially ask him where he came up with the idea. If he truly came p with the idea on his own and has the documentation of how he developed the character and the storyline. If he is able to produce proper documentation of his development of the character and the storyline then this is will be an easy case to win. However, if he is unable to produce and of his character and storyline documentation then i would be making a quick call to the legal department and tell them that we have a problem and that they should prepare for lawsuit which we have little chance of producing a defense based on internal documentation. There is no First Amendment defense to a copyright infringement claim. Like the defamation laws, the copyright laws demonstrate that there can be legal restrictions on the First Amendment. We cannot say anything we want, any time we want, or steal the ideas of others, without consequences.