Netflix Asks Court To Dismiss Chooseco's Lawsuit For All The Obvious Reasons

from the this-adventure-sucks dept

You will recall that Chooseco LLC, the company behind the Choose Your Own Adventure books that people my age remember with such fondness, decided quite stupidly to sue Netflix over Black Mirror's audience-influenced production called Bandersnatch. The lawsuit is silly for any number of reasons, including that the whole thing rests on a character in Bandersnatch mentioning a CYOA book as the inspiration behind his fictional video game coupled with the fact that the film (a third medium) lets viewers choose how the story progresses. How Chooseco thinks any of that legal pixelation resolves into an actual trademark or copyright violation is anyone's guess, because it most certainly does not. Storytelling mechanics are most definitely not protectable as intellectual property. On top of that, Chooseco subsequently announced its own licensed deal with Amazon for Alexa. The timing of it all sure seems to indicate that Chooseco might have wanted to send Netflix a thank you for revitalizing interest in its products, rather than filing a lawsuit.

But since the lawsuit was filed, it was only a matter of time before Netflix tried to have it tossed.

But lawyers for Netflix argue the phrase is common and simply “a reference to the book’s narrative device”.

It also dismissed claims by Chooseco of similarities between the border of a game by fictional video game developer Tuckersoft and its own book covers. Netflix said there was “nothing distinctive” about the publisher’s borders and the designs were in any case “markedly different”.

In a filing last week, the online broadcaster said: “No amount of further amendment will change Bandersnatch’s actual uses of the phrase ‘Choose Your Own Adventure’. Nor will amendment change the fictional ‘Tuckersoft’ company’s uses of the rounded color borders, let alone make them similar to Chooseco’s. Nor will amendment alter the First Amendment protection for such artistic uses, the protection for descriptive fair uses like the use of the challenged phrase, or the absence of any secondary meaning for the rounded color borders element of Chooseco’s trade dress.”

It's pretty much as we predicted. Netflix would like the court to acknowledge that pretty much everything Chooseco is complaining about that is included in Bandersnatch is not protectable, and that pretty much all the rest is protected as expression and art by the First Amendment. Frankly, it's hard to imagine how the court could argue differently, although there's always the chance the court might decided that these are issues best decided in the trial phase.

Which would be too bad, really. Lawsuits as plainly silly as this deserved to be tossed, not validated by full trials.

Filed Under: bandersnatch, choose your own adventure, fair use, trademark
Companies: chooseco, netflix


Reader Comments

The First Word

It does not say “I am RIGHT and they are WRONG and there is ONLY ONE VIEW. That’s pretty much the opposite of journalism.

“Journalism 101: If someone says ‘it's raining’ and another person says ‘it's dry’, it is not your job to quote them both — it is to look out the fucking window and find out which statement is true.”

Both sides in an argument may be equally valid for a given argument, but in a not-zero number of cases, that is not true. Reporting on and quoting Flat Earthers as if their theories hold any sense of scientific value or weight, for example, gives them a credibility that they do not deserve and helps to ever-so-slightly undermine the credibility of scientists who know what the hell they are talking about. Any journalist who refuses to call out Flat Eartherism as being a bullshit theory is a journalist who has not done their job.

There will always be bias in journalism; someone must decide what to publish, what to distill out of the mass of available data, and what facts to check. But the best journalism, even if it is biased, is a contribution to the truth. The best journalists know that showing a bias against lies and provable falsehoods when necessary is an acceptable bias to show — and frankly, I would rather have a journalist who challenges anti-vaxxers on what they say than a journalist who reports what anti-vaxxers say in “view from nowhere” style and gives them the kind of credibility that leads to children dying from wholly preventable diseases.

—Stephen T. Stone

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  • identicon
    Anonymous Coward, 27 Mar 2019 @ 4:07pm

    Netflix should file a motion that concludes with:

    "The judge carefully weighed the motion and chose...

    To decide for the plaintiff, turn to page 78.

    To decide for the defendant, turn to page 77."

    But the whole motion only has 77 pages...

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 27 Mar 2019 @ 4:25pm

      Re:

      The judge in a lawsuit involving the Da Vinci Code wrote the opinion in some type of code.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 27 Mar 2019 @ 4:33pm

        Re: Re:

        If this judge ends up writing his opinion in a choose your own adventure style, it should show once and for all that you can't steal a style and sue anyone who also creates things that seem similar.

        reply to this | link to this | view in chronology ]

        • icon
          Gary (profile), 27 Mar 2019 @ 5:42pm

          Re: Re: Re:

          Obviously you can sue, and they did. Chooseco didn't invent the adventure path type story, and Netflix didn't invent the adventure path movie.

          What you can't do is sue and not look stupid....

          reply to this | link to this | view in chronology ]

  • identicon
    Whoever, 27 Mar 2019 @ 5:40pm

    Motivation

    How Chooseco thinks any of that legal pixelation resolves into an actual trademark or copyright violation is anyone's guess

    Chooseco's thinking is simple: Netflix has money and they want some of it.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 27 Mar 2019 @ 6:01pm

    Don't you just love it when copyright law is enforced?

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 27 Mar 2019 @ 6:54pm

    What kind Of writing is this?

    Is this “journalism”? If you describe a situation which is (as of yet) unresolved, and then assert that only one resolution makes sense, and the other has no merit at all, is this “journalism”?

    Seeking out multiple witnesses, disclosing as much as possible about sources, or asking various sides for comment, all signal journalism. This discipline of verification is what separates journalism from other forms of communication such as propaganda, advertising, fiction, or entertainment.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 27 Mar 2019 @ 7:04pm

      Re: What kind Of writing is this?

      ...ever heard of editorials?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 27 Mar 2019 @ 7:05pm

      Re: What kind Of writing is this?

      What you're describing is "the view from nowhere", which is terrible journalism.

      reply to this | link to this | view in chronology ]

      • This comment has been flagged by the community. Click here to show it
        identicon
        Anonymous Coward, 27 Mar 2019 @ 7:14pm

        Re: Re: What kind Of writing is this?

        Yes, considering both sides of an argument is such a waste of time when you are paid to just present one side.

        Have you ever considered that you might find more readership if your articles were more interesting?

        For example, “Party A says Party B is bad, but Party A says that about a lot of other parties. Party B says it’s not bad at all, but that’s not 100% true either. Actually, both sides have a point, but the more important point is how long it takes and how much money is spent to resolve this kind of disagreements. If resolution was faster and cheaper, most real justice would be dispensed.”

        Maybe if you wrote about some actual insight, you would find more readers.

        reply to this | link to this | view in chronology ]

        • icon
          Gary (profile), 27 Mar 2019 @ 7:31pm

          Re: Re: Re: What kind Of Trolling?

          Perhaps the AC's can kindly point us to their much better websites with super-cool stories they've written?
          Nope, they just came by to make themselves look like ineffectual whiners like Blue Balls.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 27 Mar 2019 @ 7:50pm

          Re: Re: Re: What kind Of writing is this?

          Have you considered that not every argument has two sides with equally valid points?

          Your "insightful" paragraph says exactly nothing and informs the reader of nothing.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 27 Mar 2019 @ 7:56pm

          Re: Re: Re: What kind Of writing is this?

          I thought all you Techdirt critics ever cared about was this place getting less readership, not more.

          But good to see that this site you loathe with the intensity of a thousand suns has such office space in your head that you can't stop coming back.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 27 Mar 2019 @ 9:22pm

          Re: Re: Re: What kind Of writing is this?

          “Yes, considering both sides of an argument is such a waste of time when you are paid to just present one side”

          You got a citation for that claim, like a real journalist would bro?

          reply to this | link to this | view in chronology ]

        • icon
          PaulT (profile), 27 Mar 2019 @ 10:11pm

          Re: Re: Re: What kind Of writing is this?

          Actually the "both sides" crap is bad journalism when one side is a clear bad actor, and the root of some of the extremist stuff that infects our media today.

          For example - you have news reports about vaccines where people armed with the facts about what vaccines do and how they've helped people for decades on one side, and a vapid airhead armed with a single debunked study written by a fraudster on one side. What happens when you present both sides as equally valid? Frigging measles epidemics...

          "Actually, both sides have a point"

          In this case they don't, unless you wish to explain what's missing from the article.

          reply to this | link to this | view in chronology ]

          • This comment has been flagged by the community. Click here to show it
            identicon
            Anonymous Coward, 28 Mar 2019 @ 12:41am

            Re: Re: Re: Re: What kind Of writing is this?

            This is just intended to be constructive criticism. Constructive. Not destructive.

            Here’s the kind of journalism I like to read:

            “You may have heard about A and B being conflicted about XYZ. Well, I talked to A, and I talked to B, and I listened to both sides of this conflict, which sounds like this: ... ... ... After listening carefully, here’s the view that I think is most constructive and meaningful: ....

            Good journalism is like story telling - it gives people new information, it poses interesting questions, and reveals things that may not be obvious on the surface. Ultimately, like every story, it leaves the ultimate determination to the reader. Done well, it gets a point across by getting the reader to “suspend disbelief” and instead provokes interesting thought and novel new views that they (the readers) may not have previously considered. In some ways, good journalism is like a good journal about an interesting journey, it describes the scenery, the background, the events and the perspective. It is compelling and provocative and leaves the reader feeling more educated and engaged with an interesting topic.

            It does not say “I am RIGHT and they are WRONG and there is ONLY ONE VIEW. That’s pretty much the opposite of journalism.

            I say this totally with the spirit of trying to contribute to the success of the writers here. Really.

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 28 Mar 2019 @ 1:51am

              Re: Re: Re: Re: Re: What kind Of writing is this?

              And Shiva Ayyadurai still didn't invent email, Hamilton.

              Isn't there a Paul Hansmeier appeal fund you need to be working on?

              reply to this | link to this | view in chronology ]

            • icon
              Stephen T. Stone (profile), 28 Mar 2019 @ 4:13am

              It does not say “I am RIGHT and they are WRONG and there is ONLY ONE VIEW. That’s pretty much the opposite of journalism.

              “Journalism 101: If someone says ‘it's raining’ and another person says ‘it's dry’, it is not your job to quote them both — it is to look out the fucking window and find out which statement is true.”

              Both sides in an argument may be equally valid for a given argument, but in a not-zero number of cases, that is not true. Reporting on and quoting Flat Earthers as if their theories hold any sense of scientific value or weight, for example, gives them a credibility that they do not deserve and helps to ever-so-slightly undermine the credibility of scientists who know what the hell they are talking about. Any journalist who refuses to call out Flat Eartherism as being a bullshit theory is a journalist who has not done their job.

              There will always be bias in journalism; someone must decide what to publish, what to distill out of the mass of available data, and what facts to check. But the best journalism, even if it is biased, is a contribution to the truth. The best journalists know that showing a bias against lies and provable falsehoods when necessary is an acceptable bias to show — and frankly, I would rather have a journalist who challenges anti-vaxxers on what they say than a journalist who reports what anti-vaxxers say in “view from nowhere” style and gives them the kind of credibility that leads to children dying from wholly preventable diseases.

              reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 28 Mar 2019 @ 7:03am

              Re: Re: Re: Re: Re: What kind Of writing is this?

              Good story telling also has a definitive ending that is not open for the reader to choose ending A or ending B. Unless, ironically, you're reading a CYOA story.

              If there are two legitimate sides to a story, you might have a point, but there are not two legitimate sides here. The law clearly states Chooseco is wrong and Netflix is right. Saying Chooseco could be right is a denial of reality and antithetical to good journalism.

              reply to this | link to this | view in chronology ]

            • icon
              PaulT (profile), 28 Mar 2019 @ 7:44am

              Re: Re: Re: Re: Re: What kind Of writing is this?

              "Here’s the kind of journalism I like to read"

              Good for you. I would find that sort of journalism pandering if, as in this case, one side is objectively in the wrong. There's not always 2 genuine sides. If you have NASA on one side discussing their latest mission and someone on the other side talking about how it's all a conspiracy and they're just filming it on a soundstage, then it's not good science journalism to give them equal weight.

              I understand your point on certain kind of issues. On others, trying to be neutral is actively damaging.

              "Done well, it gets a point across by getting the reader to “suspend disbelief” and instead provokes interesting thought and novel new views that they (the readers) may not have previously considered"

              I thought its point was to investigate and report facts, not write flowery creative narratives.

              "it describes the scenery, the background, the events and the perspective"

              This isn't some in depth think piece, it's the latest blog report on an ongoing case (previous articles are linked). Whatever you're trying to get, it doesn't apply to this article.

              reply to this | link to this | view in chronology ]

          • icon
            Scary Devil Monastery (profile), 28 Mar 2019 @ 4:25am

            Re: Re: Re: Re: What kind Of writing is this?

            ...and the same argument holds for, for instance:

            Equal Rights For All Humans
            vs.
            <insert color, ethnicity and/or creed here> is obviously superior.

            Equal voting rights.
            vs.
            Women/black people shouldn't be allowed the vote.

            Any journalist presenting those two views as equally valid would, quite rightly, not be considered a very good journalist so much as a supporter for a cause which has neither moral nor scientific backing.

            But I think we all know which particular sock puppet usually frequents TD and would be keen on this type of presentation being acceptable as "journalism".

            reply to this | link to this | view in chronology ]

            • identicon
              TDR, 28 Mar 2019 @ 12:09pm

              Re: Re: Re: Re: Re: What kind Of writing is this?

              While I understand and agree that the view from nowhere approach is largely a bad idea, I also wonder about how to prevent going to extremes in the other direction. Do we want journalists to be the final arbiters of what is true and what isn't? What may be obvious to some may not be to others. While some things are as clear as the examples you and others have given, others are not. And how do you prevent a journalist's own biases from influencing which way he or she reports on a given thing in a non-view from nowhere approach?

              reply to this | link to this | view in chronology ]

              • icon
                Stephen T. Stone (profile), 28 Mar 2019 @ 1:10pm

                Do we want journalists to be the final arbiters of what is true and what isn't?

                No, I want them to show me verifiable facts and let me make up my own damn mind about a given subject.

                how do you prevent a journalist's own biases from influencing which way he or she reports on a given thing in a non-view from nowhere approach?

                Any journalist will have biases; human nature dictates that. They cannot be prevented or avoided altogether — but they can be controlled through fact-checking, the editorial process, and a journalist’s willingness to examine their own biases.

                reply to this | link to this | view in chronology ]

              • icon
                Scary Devil Monastery (profile), 29 Mar 2019 @ 7:32am

                Re: Re: Re: Re: Re: Re: What kind Of writing is this?

                "Do we want journalists to be the final arbiters of what is true and what isn't?"

                Essentially that's part of the job of a journalist - reporting factually, and thus doing the digging to find out what the facts actually ARE.

                Hence why good journalism is investigative journalism. And why actual sources and corroboration is so important.

                When presenting a piece on NASA a journalist should investigate and present the facts - which will include calculations, pictures, live-witness reports, etc.

                The same piece on a flat-earther may be carried out the same but the journalist will end up having to state that absolutely no verification could be found on any of the facts the flat-earther asserted.

                The "view from nothing" is dangerous for a reason. Good journalism abides by many of the same tenets as good science.

                reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 28 Mar 2019 @ 7:09am

          Re: Re: Re: What kind Of writing is this?

          Yes, considering both sides of an argument is such a waste of time when you are paid to just present one side.

          Sometimes there is only one side. Or do you deny that gravity pulls things down instead of pushing them up?

          A journalist would look just as stupid giving equal weight to the idea that gravity works in reverse of how it actually does. Just as you do right now for proposing the law doesn't say what it actually does.

          Have you ever considered that you might find more readership if your articles were more interesting?

          News is not always interesting to all people.

          resolve this kind of disagreements

          There is no disagreement. The law says Chooseco is wrong and stupid.

          Maybe if you wrote about some actual insight, you would find more readers.

          If you and Chooseco would stop doing stupid stuff, Mike would have more time to right about more interesting things, like quantum mechanics, where it would correct to give equal weight to viewpoint A and viewpoint B because they are both valid simultaneously.

          reply to this | link to this | view in chronology ]

          • identicon
            bob, 28 Mar 2019 @ 10:44am

            Re: Re: Re: Re: What kind Of writing is this?

            Or do you deny that gravity pulls things down instead of pushing them up?

            Of course it pushes them up. Otherwise everyone on the southern hemisphere would fall off the planet since they are below it.
            ;)

            Sorry I couldnt help myself.

            reply to this | link to this | view in chronology ]

    • identicon
      Zem, 27 Mar 2019 @ 10:48pm

      Re: What kind Of writing is this?

      lol. life is also a choose your own adventure. Try selecting a different option next time. I am sure all the other endings don't have you displaying an unhealthy obsession with Techdirt.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Mar 2019 @ 7:11am

      Re: What kind Of writing is this?

      Is this “journalism”?

      Yes.

      reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 28 Mar 2019 @ 5:28pm

      Re: What kind Of writing is this?

      Is this “journalism”?

      It is! It's called opinion journalism, in which we look at the facts and details and give our opinion on it based on our own knowledge, experts we talk to and more. It is not stenography journalism, or the view from nowhere journalism. Those may (or may not) have their place, but they are not what we do.

      If you describe a situation which is (as of yet) unresolved, and then assert that only one resolution makes sense, and the other has no merit at all, is this “journalism”?

      Yes. Yes it is.

      Seeking out multiple witnesses, disclosing as much as possible about sources, or asking various sides for comment, all signal journalism.

      So does expressing our opinion, based on the facts and our own knowledge.

      This discipline of verification is what separates journalism from other forms of communication such as propaganda, advertising, fiction, or entertainment.

      You seem to be wholly unfamiliar with how journalism works.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 29 Mar 2019 @ 12:24am

      Re: Enquiring minds want to know

      Hey bro. Did it hurt getting shut down so hard, we heard the echo from The Southern Hemisphere?

      reply to this | link to this | view in chronology ]


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