You may be surprised to find that a search of our story archives involving fast-food giant McDonald's returns pretty scant posts here at Techdirt. Regardless, the company is known to be quite protective on trademark matters, often times using the trademarks it holds to swat at legitimate competition, pretending at potential public confusion that doesn't really exist. Given the size of the company's legal war chest, these bullying efforts are typically successful.

But not always. One victim of this bullying was Supermacs, an Irish fast-food chain with an appropriately Irish name. Supermacs has for years wanted to expand throughout Europe, but was largely unable to due to McDonald's claiming that its trademark registration for "Big Mac", the name of its famous sandwich, meant that any attempt by Supermacs to expand into Europe would cause public confusion. This is typically where the story would end. Instead, Supermacs went on the offensive and decided to try to get McDonald's "Big Mac" trademark cancelled entirely so that it could no longer be wielded as a bully-stick. And, much to this writer's surprise, Supermacs won.

McDonald's Corp has lost its rights to the trademark "Big Mac" in a landmark European Union (EU) case ruling in favour of Ireland-based fast-food chain Supermac's, according to a decision by European regulators.

The judgment revoked McDonald's registration of the trademark, saying the world's largest fast-food chain had not proven genuine use of it over the five years prior to the case being lodged in 2017.

Whoops. So, how did this happen? Well, in large part it appears that the legal team for McDonald's largely phoned its work in, likely not even considering that it had any chance of losing. When the trademark office requested that McDonald's prove it was using its "Big Mac" trademark actively in commerce, the company's legal team offered up some website printouts and got a few people to write testimonials.

The EUIPO said the affidavits from McDonald's needed to be supported by other types of evidence, and that the websites and other promotional materials did not provide that support. From the website printouts "it could not be concluded whether, or how, a purchase could be made or an order could be placed", the EUIPO said.

"Even if the websites provided such an option, there is no information of a single order being placed."

In many respects, this is all a little crazy. McDonald's does indeed sell Big Macs in Europe. Why it couldn't be bothered to put forth some evidence of this beyond printouts of websites is beyond me.

Given that this again all stems from McDonald's wanting to pretend an Irish chain called Supermacs is confusing because of its Big Mac sandwich would cause confusion, even though Supermacs doesn't sell anything called a "Big Mac", makes it hard to feel all that sorry for McDonald's. Instead, it's easy to see this as a huge company tried to play bully then got lazy when called out on it, and now suddenly doesn't have its most famous trademark on the European continent.

Of course, this ruling is so crazy that at least one publication literally thought it couldn't be real and then had to retract it's report denying that McDonald's had lost the trademark:

Late last year, I wrote about how the GDPR almost ruined Christmas in one German town, where it was determined that the annual tradition of kids putting their wishes on a tree in the center of town (to be fulfilled by local town officials) would violate the GDPR. Some people did figure out a "workaround" involving some pointless bureaucracy in getting parents to first sign "consent" forms to allow the town to do the same thing they've always done for years without a problem.

However, now we have another story of the GDPR ruining another Christmas tradition in a different way. This tradition? Taking back the awful presents people give you that you don't actually want. At least some retailers are telling people that doing so under the GDPR requires them to inform the original purchaser that you really didn't like their gift:

While the pilgrimage to take back garish jumpers and superfluous socks is a new year's tradition as familiar as taking down the Christmas tree, data rules now oblige internet retailers to tell a buyer when an item they have bought is returned - regardless of whether it was a gift.

In some cases, companies are warning customers that they should inform the gift-giver themselves that they are making the return - before the company has to let them know.

In one instant, a father returning a child's coat to Boden was told that the original buyer would be informed 'due to data protection regulations'.

I'm sure some can try to spin this as a way of forcing people to be a bit more honest about not liking the awful sweater their dear old aunt bought them for the holidays, but, really... how exactly is this protecting anyone's "data"? If anything, it seems to be violating more people's privacy in revealing what they do with the crap presents they never wanted in the first place.

The article notes that not all retailers are doing this, but it does appear many believe it's necessary:

Eleven of the 30 retailers approached by The Mail on Sunday said they would have to inform buyers if gifts they had bought were returned.

The article does quote some "data protection" officials saying that retailers don't need to do this, but at the very least it highlights the same thing we keep pointing out about the GDPR and other attempts to regulate the internet. When these grand sweeping regulations are written in ways that are so vague and broad -- with such massive punishment for getting things wrong -- no one should be surprised when the end result is utterly ridiculous.

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Jeff Sessions did everything the president wanted him to do: roll back civil rights investigations, get tough on immigration, amp up the War on Drugs, blame everyone but law enforcement for spikes in crime. It didn't matter. The president shitcanned Sessions because he recused himself from the DOJ's investigation of Trump's Russia-related activities.

His replacement, William Barr, is undergoing the formality of a confirmation hearing. It's assumed there's no way he can blow it. But he's trying.

Barr would be no improvement over the departed Sessions. Barr thinks marijuana should be illegal everywhere. He's a fan of expanding executive power. As attorney general under George Bush Sr., he ordered phone companies to comply with DEA demands for millions of call records originating in the United States, laying the groundwork for the NSA's Section 215 collections.

He also doesn't seem to care much for the First Amendment. As attorney general, he pushed for a Constitutional amendment banning the burning of American flags in the wake of a Supreme Court decision offering First Amendment protection for this form of expression.

Thirty years later, Barr seems just as reluctant to respect the First Amendment. During the confirmation hearing, Sen. Amy Klobuchar lobbed what should have been a softball to the AG nominee. Moving on from the appalling murder of Washington Post journalist Jamal Khashoggi by members of the Saudi government, Klobuchar asked if the Justice Department would jail journalists for doing their jobs.

Instead of a quick "No," or a quickly-qualified "Yes, but only under the most extreme circumstances," Barr responded with a disturbingly long "ummm" and an uncomfortable silence. When Barr finally broke his silence, his answer was worse than his silence.

I can conceive of situations where…you know, as a last resort… and where a news organization has run through a red flag or something like that, knows that they're putting out stuff that will hurt the country… there could be a situation where someone could be held in contempt.

This is bad news for the free press. Jeff Sessions already began laying the groundwork for easier surveillance and prosecution of journalists by the DOJ. The standards alluded to by Barr ("policies in place") have been there for more than two decades. As they stand now, the DOJ has to exhaust all other investigative methods before demanding information from journalists and, if it plans to subpoena news agencies, it has to give them advance notice and work with them to minimize First Amendment intrusions.

Facing a rash of leaks following the election of Donald Trump, the DOJ has changed course. Under Sessions' (and now Rod Rosenstein's) supervision, the policies are being rewritten to make it much easier for the government to target journalists during investigations.

Multiple sources familiar with the ongoing DOJ review tell me that it has two main goals. The first is to lower the threshold that prosecutors must meet before requesting subpoenas for journalists’ records; the second is to eliminate the need to alert a media organization that Justice intends to issue a subpoena.

Given Barr's answer here, it's safe to assume he'll pick up where Sessions left off when he becomes attorney general. That's bad news for journalists and bad news for the First Amendment in general. Barr could have reaffirmed the DOJ's commitment to upholding the Constitution but instead indicated the DOJ will prioritize protecting the government over protecting the people it serves.

The FCC is requesting a delay in the opening arguments in the looming lawsuit over the agency's repeal of net neutrality rules, citing the government shutdown as justification. Oral arguments are slated to begin February 1 in the US Court of Appeals for the District of Columbia Circuit, beginning what should be a fairly insightful battle over the Ajit Pai FCC's historically unpopular move, and some of the dubious behavior it engaged in to try and downplay public opposition.

The court noted this week on its website that the trial is likely to proceed regardless of the government shutdown. The FCC quickly balked, filing a motion (pdf) requesting a delay in the trial. In the filing, the FCC cites guidance from the Department of Justice in requesting a delay out of what it suggests would be a wise "abundance of caution" as it attempts to prepare for the legal battle:

"The Commission recognizes that the Court has indicated that arguments in February will proceed as scheduled," the FCC said in its filing. "However, due to the recent lapse in funding for the FCC and the relevant component of the Department of Justice, the Commission believes that, in an abundance of caution, it should move for an extension to ensure that attorneys may fully prepare for argument."

Groups like Incompas, whose members have been fighting to restore the rules, issued their own motion (pdf) arguing that given the potential harms from the repeal, expediency is warranted:

"Due to the FCC's misguided and unlawful repeal of the network neutrality rules, consumers are at risk of substantial harm from Internet Service Providers ('ISPs'), which may now interfere with access to lawful Internet content without the restraint of the net neutrality rules. The repeal of the rules also threatens edge providers, as they are facing the risk of blocking, throttling, and other practices by ISPs, which may have services competing with edge provider services."

Both Incompas and consumer advocates like Public Knowledge's Harold Feld note that given that the DC Circuit has been denying numerous other deferments due to the shutdown, the FCC isn't likely to get what it's looking for:

Again, this legal fight is going to be very interesting to watch, as it's the first time the FCC will have to defend the various bizarre behaviors it engaged in during the repeal, including making up a DDOS attack (apparently to concoct an alternative explanation for the outrage-driven FCC website outage), blocking FOIA and law enforcement inquiries into those bogus comments the FCC refused to do anything about, or why its flimsy justifications for the repeal were pushed in perfect synchronicity with big telecom lobbyists.

If you were staring down the barrel of that particular gun, you'd probably want a delay too. Should the FCC lose, the agency's 2015 rules could be restored. If it wins, the FCC and its friends in the telecom sector need to find a way to prevent some future FCC or Congress from simply passing new rules, which is why they've been pushing bogus net neutrality laws even Congress hasn't been dumb enough to buy into quite yet. Get your popcorn ready.

I'm not quite sure why everyone is so obsessed about the "problem" of Netflix password sharing, even though Netflix itself is fine with it. For a few years now, we've noted that Charter Spectrum's CEO Tom Rutledge never misses an opportunity to scream about how awful it is that HBO and Netflix have to deal with people sharing passwords, even though the CEOs of both companies have made it clear that they're fine with it as it tends to act as free promotion to get people to sign up for their own accounts over time. Here's HBO CEO Richard Plepler from a few years ago:

"It’s not that we’re unmindful of it, it just has no impact on the business,” HBO CEO Richard Plepler said. It is, in many ways, a “terrific marketing vehicle for the next generation of viewers,” he said, noting that it could potentially lead to more subscribers in the future. “We’re in the business of creating addicts,” he said.

And here's Netflix CEO Reed Hastings at CES three years ago:

"We love people sharing Netflix," CEO Reed Hastings said Wednesday at the Consumer Electronics Show here in Las Vegas. "That's a positive thing, not a negative thing."...A lot of the time, he said, household sharing leads to new customers because kids subscribe on their own as they start to earn income.

Given that, you'd think that (1) a company would think twice about using CES this year to declare that it had a "solution" to the "problem" of Netflix password sharing, and (2) that press outlets like The Independent and Slashdot wouldn't just repeat that company's talking points.

Basically, some company claims it has an AI solution that can "detect" when someone is likely password sharing. To be honest, it's probably not "AI" so much as "oh look, this person is logging in from different IP addresses that appear to be in different locations too closely together" which pretty much anyone -- including the programmers at Netflix and HBO -- could code up in a weekend or so if they wanted to.

Incredibly, the Independent piece repeats claims of "losses" from password sharing that are complete bunk:

Separate figures from research firm Parks Associates predicts that by $9.9 billion of pay-TV revenues and $1.2 billion of revenue from subscription-based streaming services will be lost to credential sharing each year.

Except, that assumes that everyone using a shared password would otherwise buy, which is ludicrous. And, again, the companies whose actual existence depends on this, both insist that it's not having any impact, other than acting as free marketing for them to later sign people up long term. Incredibly, the reporter at the Independent includes that bogus "study" and other quotes about how password sharing is "too expensive to ignore," but doesn't bother to check to see HBO or Netflix's opinion of whether or not this is actually a problem.

It really is a shame that so many people automatically default to the idea that people sharing access to content must automatically be "a problem" that must be "stopped." The companies who dominate this space don't see it as a problem, and just because some company's PR team got the ear of a reporter, that doesn't change reality.

Truth is no defense against allegations of defamation -- not in Turkey where criminal defamation law is just one of the government's many weapons deployed against critics. Journalist Pelin Ünker has been sentenced to more than a year in jail by a Turkish court for publishing undeniable facts.

An Istanbul court sentenced the International Consortium of Investigative Journalists’ member to imprisonment for 13 months for “defamation and insult.”

Ünker, who reported that former prime minister Binali Yildirim and his sons owned companies in Malta in the Turkish newspaper Cumhuriyet, was also fined $US1615.

Ünker's reports were drawn from the Paradise Papers, which exposed the secret bank accounts of politicians and world leaders -- tax dodging efforts deployed by people whose salaries are paid with tax dollars collected from others. The accusations involving Binali Yildirim were true, and yet, the court somehow found telling the truth about a high-ranking Turkish government figure was defamatory.

Ünker said what made the “world first” ruling so remarkable was that the complainants acknowledged that her articles were true.

“This decision is not a surprise for us. Because the result was certain from the beginning. There is no criminal offense or defamation in my articles,” she said.

“The fact is Binali Yıldırım’s sons have Maltese companies. Binali Yıldırım had already accepted that they have these companies. In the indictment, it is also accepted.

In Turkey, it's illegal to expose shady dealings and wrongdoing if it involves government officials. The courts serve the Turkish government, rather than act as a check against its overreach. This is all headed up by one of the world's thinnest-skinned autocrats, Recep Tayyip Erdogan, who made made a cottage industry of worldwide censorship.

It's a garbage ruling by a garbage court in a country run by a collective of garbage people who wield an unholy amount of power. Ünker plans to appeal the ruling -- not necessarily because it will change things, but because that's what you do when you're faced with a clearly unfair ruling from a wholly-subservient court.

If anything is going to change the situation in Turkey, it's not going to be some magical reawakening of basic respect for human rights from deep inside the government. It's the rest of the world applying pressure by refusing to pretend President Erdogan has anything worthwhile to contribute to the world. American tech companies need to blow off the country's demands for user info and content removal, and governments of other countries need to stop following up on criminal complaints filed by Turkey against foreign citizens. The status quo is being maintained by world inaction and Turkey's citizens paying the price over and over again.

We've talked at length about how the telecom industry has spent the last few years pushing phony, loophole-filled net neutrality legislation.

Why would the telecom sector do that? They know their successful lobbying assault on net neutrality rules rests on shaky ground. Next month's court battle could easily reverse the FCC repeal, highlighting how the agency engaged in all manner of dubious behavior to kowtow to the telecom sector. They also know that thanks to the shifting winds in Congress and rising public anger, there could soon be growing support for a net neutrality law. Therefore, they want to pass their own, shitty, loophole-filled law to pre-empt tougher, better, state or federal protections.

The same thing is happening on the privacy front. Like the successful lobbyist attack on net neutrality, the cross-industry assault on the FCC's fairly modest broadband privacy rules back in 2017 pissed off those who were actually paying attention to it. Especially because those rules could have helped mitigate the growing roster of location data scandals by giving consumers greater control over how their location data is collected and sold.

As a result, we're starting to see a flood of cross-industry-backed legislation that pretends to fix the nation's lack of meaningful privacy guard rails, but whose real goal is to pre-empt any real state or federal efforts on that front. Case in point: the Google, Facebook, and Amazon-backed Information Technology and Innovation Foundation (ITIF) has been circulating a proposal it has been calling a "grand bargain." Said bargain proposes some fairly basic guidelines, but again the main goal appears to be to pre-empt some of the tougher laws already on the state and federal books, something COPPA backers like Senator Ed Markey aren't particularly impressed by:

"As Congress works to provide the American people with a comprehensive federal privacy law, we should build upon—not dismantle—existing safeguards,” Markey said, responding to ITIF’s proposal. “Getting rid of COPPA is literally like throwing the baby out with the bath water."

To be clear, COPPA (the country's only real federal privacy guidelines largely governing children) is certainly a mixed bag. On the one hand, it's been the source of some of the only punishment the telecom sector has seen for its longstanding mistreatment of consumer privacy. On the other hand, we've long noted that the law has plenty of problems including inconsistent FTC enforcement, and terrible language that often creates idiotic hurdles websites have to overcome. That said, you're not really fixing the problem if the industry's preferred legislation is just as bad.

State-level solutions to both net neutrality and privacy have similarly been a mixed bag. California's proposed net neutrality solution, for example, largely does things right, copying the FCC's discarded net neutrality rules and even adding some useful things (like rules governing the anti-competitive abuse of usage caps). California's state-level privacy law, however, has been widely mocked for being a ham-fisted, rushed solution that fails to remotely understand the problem at hand.

But while groups like the ITIF (also backed by telecom companies, some of the worst offenders on privacy violations) complain that the rise of multiple, discordant state-level privacy protections could create a confusing, fractured landscape of oversight, they brush over the fact that it was their clients that helped create that environment by lobbying to kill what really were some fairly modest FCC privacy and net neutrality rules. As such, maybe they're not the folks we should be leaning on to create new, pre-emptive federal guidelines on either front.

Enter Marco Rubio, who has also started pushing industry backed backed privacy legislation. But again, it's pretty clear that the focus is more on pre-empting tougher state and federal laws than trying to actually build some truly meaningful federal guidelines:

"But the bill would also require any new rules to preempt stronger state laws, like California’s landmark consumer privacy act that was approved last year and is anticipated to go into effect in 2020. Industry groups have been calling for a preemption clause in any federal legislation, saying that one federal law would be easier for companies to navigate rather than being faced with a “patchwork” of state and federal rules.

"It is critical that we do not create a regulatory environment that entrenches big tech corporations,” Rubio said in a statement to Axios. “Congress must act, but it is even more important that Congress act responsibly to create a transparent, digital environment that maximizes consumer welfare over corporate welfare."

While it's true that we need to be careful to avoid shitty federal privacy legislation, that last bit in particular is pretty disingenuous. These bills are being pushed by (and more than likely directly written by) the corporations Rubio is pretending to stand up to. Corporations that know full well that real oversight and informed, educated consumers with the right to opt out of mindless data collection and sales is going to cost the industry billions.

They can pretend they're cool with that all they'd like, but it's pretty clear that's a future they'd like to avoid, preferably by getting their own legislation passed first with an eye on formally legalizing many of these companies worst (and most profitable) ambitions.

Again, if we're going to finally build some meaningful legislative privacy guidelines, the foundation should be the result of a collective conversation among academics, legal experts, industry, consumer groups, and government. Given the high potential for a shitty law due to Congressional dysfunction, that's not going to be a pretty process, but if you've watched the percussive series of total privacy failures in recent years, it's fairly obvious it's a conversation we need to have.

While industry giants obviously have a large role to play in this looming conversation, the entire foundation of any proposed solution should not be built by giant companies with comically-terrible track records on this subject, whose primary motivation is making those protections as flimsy and loophole-filled as possible.

While much of the focus concerning the EU's Copyright Directive have been about Article 13 and the censorship and mandatory filters it will require, an equally troubling part is Article 11, which will create a "snippet" tax on anyone who aggregates news and sends traffic back to the original sites (for free) without paying those news sites. This is dumb for all sorts of reasons, not the least of which is that this plan has been tried in both Germany and Spain, and failed miserably in both places. Indeed, studies in Spain showed that this law actually did tremendous harm to smaller news sites (which the EU insists this law is designed to help). The latest version we've seen in the EU Copyright Directive is even worse than the laws in Germany and Spain in that it is so vague and so unclear that it is possible to read them to say that using more than a single word will make the aggregator liable for the tax.

In Spain, as you may recall, when that law was passed, Google responded by turning off Google News in Spain entirely, saying that it was impossible to remain in the country under that law. As they noted (and which everyone pushing for these laws always ignores), Google actually doesn't put any advertisements on Google News. It's not monetizing it (despite lies from supporters of these laws that Google is "profiting" off of their work, when Google is actually sending traffic for free). So there were some questions about what Google would do with Google News in Europe if Article 11 becomes law.

The company has now hinted at its plans by leaking a beta test of what Google News would look like under Article 11. The answer? It would look almost entirely empty:

As you can see, because the tax applies to using any words from the articles, what a "compliant" Google News looks like is a Google News page where none of the content actually loads. All you get is the names of the publications and nothing else.

Of course, this is going to infuriate supporters of Article 11, who will insist that this is awful and some terrible game that Google is playing. But it's their own fault for writing a law that says this is what you have to do. Supporters will again argue that this is not what they intended -- instead, the whole point of Article 11 is to try to force Google to "license" the news it links to. But these leaked screenshots more or less highlight how the EU Copyright Directive is truly little more than a shakedown of Google. Basically, the entire point of the law is "Google, give money to failing newspapers, or we'll force your News site to look like shit." And Google is suggesting it might just call the EU's bluff on this.

At the very least, this makes it clear that the entire point of the EU Copyright Directive -- especially Articles 11 and 13 -- are a weak attempt to say "Google is successful, therefore, Google should give a lot more of its money to companies that haven't been successful in the internet age." If the EU just named it "the tax Google because our own industries failed to innovate" Directive, it would at least be a bit more intellectually honest.

Gaming Like It's 1923: The Newly Public Domain Game Jam

As we mentioned earlier this month, in celebration of the fact that the US finally has allowed older works to enter the public domain again, after a very long hiatus, we're hosing a public domain game jam, encouraging people to create games (video games, tabletop games, LARPs, storytelling games, whatever) using newly public domain material. What good is a public domain if people aren't using it and building amazing new works with it? We've already seen some copyright maximalists -- who worked hard for years to prevent such works from entering the public domain -- mocking the excitement many of us have for finally seeing works entering the public domain (one of whom wondered why anyone would still care about works from 1923, which is infuriating, given their role in keeping those works away from the public domain). So, let's prove them wrong and build some amazing new works.

We're halfway through the month of January, and we already have five amazing entries, all building on newly public domain material. We were expecting people to most likely wait towards the end of the month to submit, so already having so many entries is a great sign. But, it also means that there's plenty of time for you to come up with a game as well. On the game jam page we have some pointers/guidelines and links to many of the newly public domain materials.

We also have an all-star panel of judges, from both the gaming and the copyright law worlds, and we're offering copies of our (public domain) CIA: Collect It All card game (or some of our copyright-themed t-shirts) as prizes for the best games in a variety of different categories. Even if you've never designed a game, now's your chance. Part of the idea behind a short-term "game jam" like this is that it encourages people to make something quick and get it out there for testing and improvement. We're excited about the submissions that have already come in, but just as excited to find out what else you guys can come up with over the rest of the month.