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Funniest/Most Insightful Comments Of The Week At Techdirt (Techdirt)

by Leigh Beadon

from the the-word-is-out dept on Sunday, January 20th, 2019 @ 12:00PM

This week, our first place winner on the insightful side is Pixelation with a response to the AT&T executive bragging about the company's misleading 5G claims, with the comment "if I have now occupied beachfront real estate in my competitors' heads, that makes me smile":

You haven't occupied beachfront property. You have occupied property a mile from the water, thrown some sand on the lawn and called it beachfront.

In second place, we've got an anonymous response to the description of Techdirt as a "left-leaning publication":

It's not a left-leaning "publication". It's a realist blog site. Granted, some of the blog posts are less than realistic but, in general, this is a rather balanced site.

"Left" and "right" both suck and have no place in critical thinking on any topic.

For editor's choice on the insightful side, we've got a pair of responses to the EU Parliament's ridiculous defense of the Copyright Directive. First, it's an anonymous commenter bringing some perspective to the situation for artists with a comparison:

The counter-argument:

In the art world if you want to exhibit your works you pay a venue to host the exhibition. They don't pay you.

On the internet you can have your works hosted for free and the venue (site) gets paid by attaching ads to the exhibition.

An exhibition is done to promote your skill as an artist, not directly to make money. Though some art may be purchased during the exhibition, in the online world your services may be contracted due to having seen your work.

Precisely how is an artist not being "fairly remunerated" on the internet? And how is it the venue/site's responsibility to make sure they are?

Next, it's James Burkhardt doing the same by passing along an artist's perspective:

So, I know an artist, Gavin Dunne aka Miracle of Sound, who is an EU Musician/Music Writer on YouTube. He has a number of revenue streams. From my understanding based on his discussions on podquisition, the Jim Sterling-lead Podcast, he doesn't see YouTube as a significant revenue source, it's an advertising source driving people to buy his music or get royalties from spotify (where he gets far more traffic) or pay him directly on patreon. One one the reasons it isn't a revenue source is how YouTube filters allow gatekeepers to claim copyright over his original works. The other is that Youtube has become more and more inconsistent in traffic volume. Nothing in Article 13 fixes that issue. Nothing in Article 13 makes YouTube a greater driver of traffic or suddenly fix its automated filtering system. Article 13 only says "You need to pay royalties, and filter out infringing content, and associate all copyright content with the correct copyright owner, and respect fair use, and do all of that perfectly without error or you pay massive fines." That doesn't help Miracle of Sound. That doesn't fix Youtube as a revenue source.

Over on the funny side, our first place comment comes from Gary in response to the trademark battle over Pinkerton detectives in Red Dead Redemption 2:


I immediately went out and tried to hire Take Two to beat up some union activists but they refused. It's hard to hire good thugs these days!

In second place, we've got wshuff anticipating the EU's next move after Google showed how empty Google News would be under Article 11:

European lawmakers are now furiously drafting Article 14, a law which will require Google to link to European news sites using snippets that Google will be required to license under Article 11.

For editor's choice on the funny side, we start out with stderric, who offered a follow-up to that comment:

Article 15: all EU citizens granted an annual, Google-funded, two weeks paid holiday in Mountain View California.

And last but not least, we've got an anonymous response to McDonald's losing its Big Mac trademark in Europe:

"So Vincent, what do they call a Big Mac™ in Europe?"

"A Big Mac"

That's all for this week, folks!


This Week In Techdirt History: January 13th - 19th (Techdirt)

by Leigh Beadon

from the so-it-went dept on Saturday, January 19th, 2019 @ 12:45PM

Five Years Ago

This week in 2014, as congress was preparing to give up its authority and fast-track agreements like the TPP, and the USTR was not even showing up for hearings on the subject, the EFF and others teamed up to launch Copyright Week, for which we featured daily posts about copyright. On Monday, we looked at the reasons why the USTR and Hollywood hate transparency; on Tuesday, we dug into the loss to culture from killing the public domain; on Wednesday, we pivoted to knowledge and learning with a post all about Open Access; on Thursday, we looked at how copyright can destroy property rights; and then on Friday we wrapped it up with a look at the importance of fair use.

Ten Years Ago

Copyright was also on our minds this week in 2009, especially since it turned out the RIAA's promise to stop suing file sharers was not so solid when they filed yet another new lawsuit. Less awful but still very disappointing was the discovery that Apple's much-vaunted removal of DRM from iTunes songs also meant they were watermarking all the files with your email address. We took another look at how friendly DRM is an oxymoron, how collection societies like ASCAP and BMI harm up-and-coming singers, and the long, fraught history of copyright and music in general. Meanwhile, the Supreme Court was asking the administration for input on copyright issues related to remote DVRs, and the judge for a case challenging the constitutionality of the RIAA's actions agreed to broadcast the trial live online.

Fifteen Years Ago

Sometimes it's eerie and depressing how little changes across these five-year jumps. In 2004, the RIAA was just in an ever-so-slightly different phase of its activities following the loss of its ability subpoena file sharer information after the Verizon case: it was just trying to get ISPs to do it voluntarily, and having a hard time getting any on board. Studies suggested that the war against file sharing was gaining little ground, as piracy appeared to be on the upswing again while moving deeper underground. Over at the MPAA, the situation was similar: having just been blocked by a judge from banning screener DVDs for award shows, the agency was drumming up concern over the copies that began to show up online, which they started slowly finding one by one. Meanwhile, some folks were suggesting ways to deal with video piracy by totally missing the point of online video.


The 'Choose Your Own Adventure' People Are Suing Netflix Over 'Bandersnatch' (Trademark)

by Timothy Geigner

from the ip-adventure dept on Friday, January 18th, 2019 @ 7:39PM

As you may have already heard, the latest iteration of the Black Mirror franchise on Netflix, titled Bandersnatch, is an absolute hit. You likely also have heard that it allows the viewer to influence the plot by making choices within the story's many inflection points. And, hey, perhaps you even heard that Netflix is facing legal action by Chooseco LLC, the company behind the "Choose Your Own Adventure" series that were popular in the '80s and '90s.

But if you haven't dug into the details, both in terms of why Chooseco states the Netflix series violates its trademark and the damages it is asking for in court, you may not realize just how bonkers all of this is.

Chooseco LLC is suing Netflix for trademark infringement and dilution over the streaming service’s new hit, claiming that Netflix is “willfully and intentionally” using its trademark “to capitalize on viewers’ nostalgia for the original book series from the 1980s and 1990s.”

Bandersnatch is an interactive film that allows viewers to make choices that drive the plot and decide the ending. Early on, the main character informs his father that “Bandersnatch is a ‘Choose Your Own Adventure’ book” and holds up a copy by fictional author Jerome F. Davies.

Now, it should be noted that this entire claim appears to rest on two things. First, there is very brief nod to the book series at one point in the film. Second, Netflix at one point had spoken with Chooseco about officially licensing their trademark for a Choose Your Own Adventure series that doesn't appear to have anything to do with Bandersnatch. But it's important to make something clear: at no point has Netflix ever referred to its own Banderstatch as "choose your own adventure," or anything close to that. It is true that many people may have compared the two because, duh, but that's not on Netflix (one might argue it's on Chooseco for picking a name that is so easily genericized). From there, Chooseco claims that there will be public confusion about the origin and/or affiliation of Bandersnatch having something to do with Chooseco, and it claims that the film's use dilutes the positive warm-and-fuzzies people have for the book series. On that front:

Overall, Bandersnatch is a dark film and the videogame that Butler creates in it based on its fictional inspiration is equally dark. Nearly every narrative fork includes disturbing and violent imagery. The movie has a rating of TV-MA, which means the content is specifically designed to be viewed by adults. Depending on the choices the viewer makes, it can include references to and depictions of a demonic presence, violent fighting, drug use, murder, mutilation of a corpse, decapitation, and other upsetting imagery. These dark and violent themes are too mature for the target audience of Chooseco's CHOOSE YOUR OWN ADVENTURE BOOKS. Association with this grim content tarnishes Chooseco' s famous trademark.

This, as should be plainly evident, is absurd on many levels. Fans of Bandersnatch aren't going to think less of the Choose book series because Bandersnatch is dark. Dark is the whole point of Netflix's series. Aside from that, a throwaway line in the beginning of the film serving as a simple nod to the book series doesn't exactly create the lasting impression that there is any affiliation here. Bandersnatch regularly does commentary on popular culture by turning it dark. It's kind of the point.

And, again, there's nothing in here that's going to cause people to somehow think Chooseco is involved in this film at all. The trademark claims ought to fail on the lack of any real concern over public confusion. And yet...

The real legal adventure, though, could come in its request for $25 million in damages or Netflix’s profits, whichever is greater, and that the damages be tripled because of the alleged willful nature of Netflix’s conduct.

Supporting the company’s claim that it deserves treble damages is its allegation that the two parties had been in "extensive negotiations" over the use of the trademark in 2016 but that Netflix never obtained a license. Also, Chooseco claims it sent Netflix at least one cease-and-desist letter regarding its unauthorized use of the "Choose Your Own Adventure" trademark in another program.

Every piece of evidence here is weaker than the last, which makes a $25 Million price tag seem a bit too much. Perhaps this is a lawsuit fishing for a settlement to make it go away, but I would hope Netflix digs its heels in instead.

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Newly Revealed Documents Show Facebook Gleefully Refusing To Refund Money To Kids Who Ran Up Huge Bills On Mommy's Credit Card (Privacy)

by Mike Masnick

from the coppa-coppa-coppa dept on Friday, January 18th, 2019 @ 3:29PM

Because Facebook wasn't looking awful enough already, some newly unsealed documents from a lawsuit going back a few years are now making the company look even worse, and certainly not doing the company any favors in its efforts to rehabilitate its reputation. Unfortunately, so far, Reveal, a project of the Center for Investigative Reporting, seems to only be revealing snippets of what's in the documents, rather than the full documents (come on guys...), but what they're sharing doesn't look great.

Specifically, a judge has unsealed previously sealed records from a 2012 class action lawsuit that was settled in 2016, concerning Facebook profiting off of children. The origins of the lawsuit involved a child who got his mother's credit card to play a game on Facebook, without realizing that the more he played, the more of his mother's money he was spending -- compounded by Facebook then refusing to refund the charges. The latest revelations show that Facebook employees knew that they made this information confusing, in a way that people (kids and adults alike) might not realize they were still spending money off of a credit card, and also having joking conversations about people trying to get their money back. Indeed, the snippet Reveal has released has Facebook employees referring to one teenager as "a whale" -- a term used in casinos to refer to big spenders.

In one of the unsealed documents, two Facebook employees deny a refund request from a child whom they refer to as a “whale” – a term coined by the casino industry to describe profligate spenders. The child had entered a credit card number to play a game, and in about two weeks racked up thousands of dollars in charges, according to an excerpt of messages between two employees at the social media giant.

Gillian: Would you refund this whale ticket? User is disputing ALL charges…
Michael: What’s the users total lifetime spend?
Gillian: It’s $6,545 – but card was just added on Sept. 2. They are disputing all of it I believe. That user looks underage as well. Well, maybe not under 13.
Michael: Is the user writing in a parent, or is this user a 13ish year old
Gillian: It’s a 13ish yr old. says its 15. looks a bit younger. she* not its. Lol.
Michael: ... I wouldn’t refund
Gillian: Oh that’s fine. cool. agreed. just double checking

Fine. Cool. Agreed. Or not. Not cool at all. And that's even if you argue (as some have on Twitter) that the "whale" comment is actually a typo for "whole" (and argument multiple people who worked in the space dispute, noting that "whale"/casino terminology was common in online games).

While you might just chalk this up to a conversation among perhaps lower level Facebook employees with screwed up incentives, Reveal notes that other documents make it clear that people within Facebook knew that their confusing UI was contributing to a problem:

Facebook employees began voicing their concerns that people were being charged without their knowledge. The social media company decided to analyze one of the most popular games of the time, Angry Birds, and discovered the average age of people playing it on Facebook was 5 years old, according to newly revealed information.

“In nearly all cases the parents knew their child was playing Angry Birds, but didn’t think the child would be allowed to buy anything without their password or authorization first,” according to an internal Facebook memo. The memo noted that on other platforms, such as Apple’s iPhone, people were required to reauthorize additional purchases, such as by re-entering a password.

A Facebook employee noted that children were likely to be confused by the in-game purchases because it “doesn’t necessarily look like real money to a minor.”

The documents also note that Facebook didn't send receipts for these purchases, meaning that parents wouldn't know about them until way later when the credit card bill shows up. Oh yeah, also "links on the company’s website to dispute charges frequently failed to work."

While one might try to argue that this is something that happened many years ago, when Facebook wasn't that careful about things, the company's reaction to these documents finally being revealed isn't great either:

In response to a request for an interview, Facebook provided a one-sentence statement: “We appreciate the court’s careful review of these materials.”

That's... not going to cut it. In the past year, almost every internet company I talk to is simply seething about Facebook and how it's basically destroying everything with the hamfisted way it deals with... almost everything. The company's ongoing and never-ending "apology tour" isn't changing anything, and if the company can't figure out that it has to take real ownership of its many problems, past and present, it's never going to fix them, nor rebuild trust. Responding with that sort of PR speak, rather than saying "we royally fucked up, but that was many years ago, and here are all the concrete steps we've taken to fix this" is just incompetent. The company has been in the limelight for so long yet it still doesn't seem to fathom how to deal honestly with a press that is calling out its many faults. While it is true that plenty of press coverage of Facebook in the past year has been misleading or unfair, the unwillingness of the company to take its real problems seriously, is a huge issue not just for Facebook, but for every other internet company as well.


In Which We Warn The Wisconsin Supreme Court Not To Destroy Section 230 (Legal Issues)

by Cathy Gellis

from the not-just-fosta dept on Friday, January 18th, 2019 @ 1:36PM

One of the ideas that we keep trying to drive home is that the Internet works only because Section 230 has allowed it to work. Mess with Section 230, and you mess with the Internet. FOSTA messed with it statutorily, but it isn't just Congress that can undermine all the speech and services that depend on Section 230's protection for the platforms that enable them. Courts can mess with it too.

While it's bad enough when courts get questions of whether Section 230 applies wrong at the trial court level, the higher the court, the more potentially destructive the decision if the court decides to curtail its protection. On the other hand, the higher the court, the more durable Section 230's protective language becomes when the decision gets it right. This post is about one of those cases where the future utility of Section 230 hangs in the balance, and where we hope that the Wisconsin Supreme Court, the highest court in the state, gets it right and finds it applies to the platform being sued -- and therefore all other platforms that depend on its protection.

We've written before about this case, Daniel v. Armslist. As with a lot of the litigation challenging Section 230 it was one of those "bad facts make bad law" sorts of cases. In this case an estranged husband, against whom there was a restraining order, bought a gun from an unlicensed seller who had advertised through the Armslist site. Notably it does not appear that the sale was necessarily illegal – in Wisconsin unlicensed dealers apparently do not have to run background checks – nor was the sale fully transacted on the site (the actual purchase was made in a McDonalds parking lot). Of course, even if the sale had been illegal, or fully brokered via the site, Section 230 should still have insulated the platform, but here the Section 230 inquiry should be much more straight forward: the lawsuit alleging that Armslist negligently designed a site that facilitated a third party's speech – in this case, the speech offering the gun for sale – should have been barred by Section 230.

The trial court actually had gotten this question right and dismissed the case. Unfortunately a state appeals court in Wisconsin opted to ignore twenty-plus years of jurisprudence, as well as the statute's pre-emption provision, which would have directed such a finding, and reversed the trial court's original decision. Armslist then sought review by the Wisconsin Supreme Court, and we filed an amicus brief supporting their petition. One of the main points we made in the brief was how much stood to be affected if the decision was not overturned and Section 230's applicability in Wisconsin was now narrowed in ways Congress hadn't intended. After all, it isn't just Armslist in the crosshairs; it is all platforms everywhere, and all the speech and services they enable, in Wisconsin and beyond, that are threatened if platforms can no longer depend on Section 230's critical protection applying to them as it once had.

Fortunately the Wisconsin Supreme Court agreed to hear the case, and this week we filed yet another amicus brief in support of Armslist on the merits. It is similar to the previous brief, with the added example of how much the Copia Institute itself, and Techdirt in particular, depends on Section 230 remaining robust and effective. It relies on it as a user of other services -- for instance, to have its posts shared through social media -- and as a platform itself. There could not be a comments section on Techdirt -- or all the vibrant and insightful discussion found there -- without Section 230 protecting the site from liability for what commenters say.

It would be easy for the tragedy underpinning this case to cause the court to fixate on Armslist and the type of user content it intermediates. But Internet platforms come in all sorts of shapes and sizes, offering all sorts of services, and enabling all sorts of speech on all sorts of topics. And all of them will be affected by how the court resolves this particular case before it. So we hope our brief helps remind the Wisconsin justices of just how much is at stake.

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