What would happen if another company wanted to buy KS rights

[ubergeneral]

katawa shoujo has a fan base. A other VN's like it will get support. That and all it is, is the same VN format japan seems to be in love with anyways.

If Da Capo can become a series so can katawa shoujo.

[zanger]

There's a simple workaround to the problem of licensing, of any kind (as well as the whole "Katawa" being a swear/slander word).

Superficial changes to the names and appearances!

Example: Katawa Shoujo ---> Fugusha Shoujo Suku-ru.

Now we don't have to worry about offending the Japanese public at large. Onto the changes made solely to prevent a lawsuit!

I can assure you simply changing the names of characters is not going to diminish the potential of a lawsuit. If they made a new story, with completely new characters and new disabilities that might get around the problem of licensing.

[encrypted12345]

There's a simple workaround to the problem of licensing, of any kind (as well as the whole "Katawa" being a swear/slander word).

Superficial changes to the names and appearances!

Example: Katawa Shoujo ---> Fugusha Shoujo Suku-ru.

Now we don't have to worry about offending the Japanese public at large. Onto the changes made solely to prevent a lawsuit!

I can assure you simply changing the names of characters is not going to diminish the potential of a lawsuit. If they made a new story, with completely new characters and new disabilities that might get around the problem of licensing.

... I'm pretty sure the KS devs don't have the capabilities to do a full-blown lawsuit.

[zanger]

... I'm pretty sure the KS devs don't have the capabilities to do a full-blown lawsuit.

I may be speaking out of my ass here, but I'm going to assume that just like the USA, Japan has lawyers and legal interest groups who are willing to work pro bono that would be willing to represent them

[Renkinjutsushi]

There's a simple workaround to the problem of licensing, of any kind (as well as the whole "Katawa" being a swear/slander word).

Superficial changes to the names and appearances!

Example: Katawa Shoujo ---> Fugusha Shoujo Suku-ru.

Now we don't have to worry about offending the Japanese public at large. Onto the changes made solely to prevent a lawsuit!

I can assure you simply changing the names of characters is not going to diminish the potential of a lawsuit. If they made a new story, with completely new characters and new disabilities that might get around the problem of licensing.

... I'm pretty sure the KS devs don't have the capabilities to do a full-blown lawsuit.

Um. I beg to differ. There are plenty of quality Intellectual Property (IP) lawyers willing to work on a contingency-fee basis. The idea is that they would represent the plaintiffs (Dev's) essentially for free, and then deduct their fee from the damages award recovered from the defendants, or from any monetary settlement reached. Usually between 25 and 40%. Happens all the time.

Also, making superficial changes may make it harder to prove IP theft/ copyright violation, but certainly doesn't make it impossible. All you have to do is prove to a Jury (or Judge in a bench trial) that there is a "substantial identifiable part," or smaller pieces amounting to such, copied from the original without the consent of the copyright holder.

Although as a 2nd year law student I'm not qualified to professionally advise anyone, I would suggest that thinking you could get away with such a blatant knock-off with a US address is a really bad idea. If you lived in a far-off country with no legal reciprocity with the USA, it might be possible but I don't know enough about international laws and treaties to comment on that.

[zanger]

Renkin: Due to various international treaties Japan is obligated to recognized existence of copyright without regard to the nationality of the author(s). Japan also doesn't have a jury system. Finally, I would think 4LS is more concerned with stopping a company from making a blatant ripoff for profit, rather than sue to recover that profit, this makes contingency fee payment plans rather ludicrous. In most civil law jurisdictions like Japan, the loser of a lawsuit is required to pay the winning side's attorneys' fees (dunno if this is the case in Japan), I do not think the US system of contingency fee payment exists elsewhere.

[Renkinjutsushi]

Renkin: Due to various international treaties Japan is obligated to recognized existence of copyright without regard to the nationality of the author(s). Japan also doesn't have a jury system. Finally, I would think 4LS is more concerned with stopping a company from making a blatant ripoff for profit, rather than sue to recover that profit, this makes contingency fee payment plans rather ludicrous. In most civil law jurisdictions like Japan, the loser of a lawsuit is required to pay the winning side's attorneys' fees (dunno if this is the case in Japan), I do not think the US system of contingency fee payment exists elsewhere.

Well, if it's not a suit for damages but for equitable relief (injunction to stop distribution in the US, say) that is even easier to achieve. First they would apply for a TRO (temporary restraining order), then a Preliminary Injunction, for which the burden of proof in most courts frankly isn't that high. The Preliminary Injunction will be enforced until the Court can reach a decision as to whether a Permanent Injunction is appropriate. Realistically, that could take a long time, and if the Defendant's don't have a lot of money to fight the action in Court, a Preliminary Injunction is practically a death sentence for the project because it makes it financially unsustainable (they will be throwing money down a pit for a product that may never be marketable).

Note that I am assuming filing the action in the US, but I am familiar with Civil Law systems as well, and Civil Law Magistrates have similarly broad powers to grant various kinds of injunctions and restraining orders, neither of which are unique to the US Common Law.

Even without contingency fees, don't discount the possibility of pro bono work dedicated by lawyers who also happen to love KS. Let's just say I would not want to be on the wrong side of such a lawsuit unless I had a lot of extra income and a strong desire to fight in Court.

[zanger]

I'd like to point out, post-eBay v. MercExchange the burden of proof for a preliminary injunction in IP cases is actually quite burdensome. It is no longer an automatic gimme. This is all a moot point because Japan probably has differing procedures for granting an interim injunction, and it would be insane to attempt to drag a Japanese anime company into jurisdiction in US Federal Court.

[Renkinjutsushi]

I'd like to point out, post-eBay v. MercExchange the burden of proof for a preliminary injunction in IP cases is actually quite burdensome. It is no longer an automatic gimme. This is all a moot point because Japan probably has differing procedures for granting an interim injunction, and it would be insane to attempt to drag a Japanese anime company into jurisdiction in US Federal Court.

I read Ebay v. MercExchange on Westlaw; I don't think the 4-factor test they propose is such a huge burden, but yes it's not a "gimme" by any means. Also note that it applies to Permanent and not Preliminary Injunctions. Such issues as insufficiency of damages can't be assessed until a record is developed. The most recent SCOTUS case defining the test for issuance of Preliminary injunctions is Winter v. Natural Resources Defense Council. Ah yes, quibbling as only lawyers can.

And yes, you are right. Trying to get jurisdiction over a Japanese Anime company in US Federal Court is utter madness. Typically they don't have nearly enough assets to make the process worthwhile. Much easier to file in a Japanese court.

[Mirrormn]

This thread got real lawyery real fast =O

[Renkinjutsushi]

This thread got real lawyery real fast =O

Somebody suggested there was an "easy workaround to the licensing." As a future member of the Bar and a strong advocate for KS, and the rights of the Dev's, I wasn't pleased. It's a wonderful free game and people are already wondering how to rip it off? Seriously, just abide by the license.

[zanger]

I read Ebay v. MercExchange on Westlaw; I don't think the 4-factor test they propose is such a huge burden, but yes it's not a "gimme" by any means. Also note that it applies to Permanent and not Preliminary Injunctions. Such issues as insufficiency of damages can't be assessed until a record is developed. The most recent SCOTUS case defining the test for issuance of Preliminary injunctions is Winter v. Natural Resources Defense Council. Ah yes, quibbling as only lawyers can.

And yes, you are right. Trying to get jurisdiction over a Japanese Anime company in US Federal Court is utter madness. Typically they don't have nearly enough assets to make the process worthwhile. Much easier to file in a Japanese court.

It is. Take, for example, Japanese manga. You could say it's expected that a commercially successful manga will transition into a TV anime series. If someone did that without authorization, it would be difficult for the copyright owner to claim he is suffering irreparable harm for which there is no adequate monetary relief. If the industry has already established royalty structures for manga-> anime transformations then it is clear what the monetary relief is, and it is hard to prove irreparable harm, if not impossible. (You could say they won't respect the artistic spirit of the original work, thus degrading the original work's artistic value; harming the author's reputation, etc., but that's clearly speculative, and a judge is hardly qualified to make that determination in the first place.)

Compare now to a product you release for free and refuse to turn for profit.

pre-eBay it used to be that all a plaintiff had to do was make out a case of infringement in order to be granted a preliminary injunction. Now courts take a closer look. eBay only applies to permanent injunctions? You might want to tell that to the Circuit Courts of Appeals. For example, see Salinger v. Colting, 607 F.3d 68 (2nd Circuit joins the 1st, 4th, 9th, and 11th circuits in applying eBay to preliminary injunctions in copyright law).

Also, Winter v. NDRC doesn't apply to IP cases and you probably shouldn't use that to talk about injunctions in IP cases, it's kind of bizarre. Monetary relief and environmental protection lawsuits aren't to be mentioned in the same paragraph. The tests used are totally dissimilar.


^ My face when you mentioned it

[Silentcook]

And this thread, gentlemen, is a good example of the reasons why we decided to not let money get even in the same zipcode as KS.

... I'm pretty sure the KS devs don't have the capabilities to do a full-blown lawsuit.

You know what they say about assumptions.

[ubergeneral]

i don't know how the money aspect would be handled if someone wanted rights to katawa shoujo. perhaps that is what is holding the devs back. I mean you can't just give it away for nothing, and a company wouldn't give the money to charity, that's silly.

most likely scenerio, another VN with the same basic theme will be made in the spirit of KS. Most likely a Key, VN since they like tragic stroies anyways.

[encrypted12345]

... I'm pretty sure the KS devs don't have the capabilities to do a full-blown lawsuit.

You know what they say about assumptions.

... I really need to stop underestimating the power of worldwide organizations. It's going to get me killed one day.

most likely scenerio, another VN with the same basic theme will be made in the spirit of KS. Most likely a Key, VN since they like tragic stroies anyways.

I wrote a fan fiction because of this thread and the first thing I did was parody Key. I exaggerated it a lot, but I honestly think it would be a travesty if Key attempted a cripple VN.