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I am a technology consultant, contributor here at Techdirt, and an author. I hope to someday get enough people reading the books I sell to garner a scathing review.




Posted on Techdirt - 18 July 2018 @ 1:34pm

French Pirates Are Increasingly Buying Through Legal Options

from the c'est-la-vie dept

Do you guys remember Hadopi? This French version of a law designed to kick copyright infringers off of the internet essentially ended in 2016, after all kinds of reports showed the program to be an inefficient, unreasonably harsh failure that actually resulted in more infringement rather than less. Well, this travesty probably seems altogether silly here in 2018, given that Hadopi largely targeted filesharing infringement, while the majority of "piracy" these days takes the form of streaming content online rather than downloading it. Those enforcing Hadopi have no real way to track that kind of "piracy", making the whole thing useless.

But the French government appears to want to see if it can repeat its mistakes all over again, with reports that it will institute a streaming site blacklist, which will be every bit as effective as Hadopi. Making all of this especially odd is that it comes at a time when so-called pirates in France are increasingly turning to legal offerings and spending gobs of money on them.

A new report published by consultancy firm EY reveals that the number of French pirates has dropped by 8%, from 11.6 million in 2016, to 10.6 million last year. The remaining pirates also downloaded and streamed less infringing content than the year before, with consumption dipping 4%.

In fact, it appears that pirates are increasingly “going legal.” This doesn’t mean that they have quit their copyright infringing habits completely, but they are more likely to pay for access too. In the span of a year, the number of pirates without a video on demand subscription dropped by nearly 30%. The result is that more than half of all pirates also pay for a legal movie streaming service now.

The reasons why someone might simultaneously pirate content and pay for it through legit services have been covered here many times in the past. It ends up coming down to some combination of content-availability, not wanting to work through the silos content-providers have erected around what customers want, and reasonable pricing models for that content. What data like this ultimately shows is that so-called pirates are perfectly willing to pay for content if its offered to them in a convenient and reasonable way with few mental transactions needed. You know, how all of commerce works.

And, yet, for some reason the French government has decided to try to censor streaming sites -- which it is guaranteed to do badly -- in the face of this optimistic data. Instead, it should be working with content producers and streaming providers alike to make that content as widely available as possible.

“Netflix has managed to reel in pirate consumers who weren’t signed up with a legal service before. In 2017, there were 20% more pirate consumers paying for a Netflix subscription than the year before,” EY’s report states.

This suggests that the main goal of movie studios and other content providers is to make sure that their work is widely available on legal streaming platforms. Ideally, without any delays and at a reasonable price.

Giving the customer what they want, how they want it, at reasonable prices. What a completely novel and hard to grasp idea.

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Posted on Techdirt - 17 July 2018 @ 7:43pm

Shipyard Brewing Loses Its Lawsuit Over Ships and The Word 'Head'

from the over-heels dept

Roughly a year ago, Shipyard Brewing Co. launched its bid for title holder of the single dumbest trademark lawsuit in the beer industry. The lawsuit against Logboat Brewing came as a result of two concerns. First, both breweries have the word "ship" on some packaging and include images of ships on that packaging as well. Lost on Shipyard appeared to be Logboat's use on its Shiphead brand was that of a woman with hair that somehow was a ship, whereas Shipyard merely had ships in water. That made the trade dress and trademarks fairly distinct. That may be the reason Shipyard coupled that concern with a second, namely that both breweries used the word "head" in their respective brands, with Shipyard having trademarks on brews such as "pumpkinhead" and "applehead." The theory, I guess, was that these two factors that on their own were not valid trademark complaints combined to form one that was.

This is where the narrator would jump in and say: "That theory was wrong." The judge presiding over the dispute didn't buy into Shipyard's claims and completely rejected Shipyard's claims in a very thorough ruling. Let's start with the trade dress issue. Do you think these cans look similar?

The answer is "of course not" and that's exactly what the ruling says:

In fact, the cans look very different from each other. Shipyard’s can is beige with a red bar at the top and bottom. Logboat’s can is white, with a black band towards the top and towards the bottom. SHIPYARD appears in an arc of blue letters of fairly uniform size, in a clean, straight font, outlined in white with a dark shadow. SHIPHEAD appears in wavy black letters outlined in white, with the first and last letters significantly larger than the rest, and the last three letters in the words “SHIP” and “HEAD” sloping downward in keeping with the triangular space between the sails of the pictured hairdo. The “S” in Shiphead has the tail of a marine animal. Prominent on the Shipyard can is an image of a ship in water. Prominent on Logboat’s can is an image of a woman carrying three cans of beer in one hand, with fish to one side, and with her dark hair styled in the form of a ship. No reasonable person viewing either can could confuse one for the other.

Okay, okay, but Shiphead said it's not just about the trade dress of the design, but also the names! The names are so similar, no? No.

Shipyard argues that its SHIPYARD mark and Logboat’s SHIPHEAD GINGER WHEAT mark “look and sound alike” because they share “six out of eight letters.” But no reasonable juror could conclude that the terms “yard” and “head” independently are similar in look or sound, outside of the negligible fact that they both end with the letter “d.” The only real similarity between SHIPYARD and SHIPHEAD GINGER WHEAT is the term “ship,” and Shipyard has admitted that “ship” is a generic term, not subject to trademark protection....

Shipyard refers to a place where ships were built and repaired, a physical space. The term has been used in the English language since at least 1647. See Merriam-Webster dictionary, https://www.merriam-webster.com/dictionary/shipyard (last accessed April 26, 2018). The term “Shiphead,” on the other hand, is not part of the English language. See Merriam-Webster dictionary, https://www.merriam-webster.com/dictionarysShiphead. The term was invented by an artist, a friend of the Logboat founders, to describe a fanciful vision of a woman with hair coiffed in the shape of a ship.

You know you're in trouble when the judge is mocking your claims by breaking out the non-existent Merriam-Webster's definition of a word you claim infringes on your trademark.

Judge Nanette K. Laughrey went on to note that the beers are primarily sold in completely different markets and there's little evidence of competition (or even that Logboat had ever heard of Shipyard beer). The ruling is filled with various quips that suggests Judge Laughrey is perplexed as to how anyone could have though this was a worthwhile lawsuit to file. It dismantles Shipyard's argument piece by piece. For example, Shipyard claimed that there was a likelihood of confusion because of the "public recognition and renown" of its brand, and the Judge basically snorts "what renown?" and points out that the company failed to present any such evidence:

Shipyard submits deposition testimony indicating that it has expended more than $1 million in advertising “in years past.” ... However, Shipyard claims to have been using the SHIPYARD mark since 1992.... Yet, Shipyard does not direct the Court to any evidence indicating when, during the 26 years it purports to have been doing business, it spent dollars on advertising.... Nor does Shipyard explain what the nature of the advertising was, or where it was directed. There is no evidence in the record indicating that Shipyard directed any advertising efforts at Missouri consumers.

Not enough? If the beer is so renown in Missouri (where Logboat sells its beer), surely there must be lots of sales there? Except... no.

Yet, although Shipyard initiated this action in May 2017, Shipyard has supplied evidence of sales from only 2016 and 2017.... (“Shipyard has sold thousands of cases of beer in Missouri.”) (... which state that Shipyard sold 1,247 cases of beer in Missouri in 2016, and fewer than 1,000 cases of beer in Missouri in 2017); ... (“ZEROREZ's market share has increased from 3% in 2006 to roughly 20% at the time the Complaint was filed.”). Thus, even assuming that Shipyard made all of the referenced 2017 sales before it brought this action, the record at best shows that Shipyard has sold fewer than 2,250 cases of beer in Missouri. Shipyard has not provided any evidence suggesting that this is a sizable number. Furthermore, Shipyard has supplied no evidence of sales from outside of Missouri.

Yes, that's the judge mocking the size of Shipyard's Missouri sales.

Shipyard's attempt to claim that the smoking gun was the fact that Logboat briefly called the yard in front of its taproom "The Shipyard" also gets a pretty decent benchslapping:

The fact that, by July 2015 (when Shipyard apprised Logboat of its infringement suspicions), Logboat was referring to the grassy area in front of its taproom as “The Shipyard,” and the fact that the founders thought the name “fit with the theme of [their] brewery” does not amount to evidence of intent to confuse customers looking to purchase SHIPYARD beer. The fact that, for a limited time, a grassy area in front of the taproom was described as a “yard” is unremarkable, and the fact that a brewery named “Logboat” called an adjacent patch of grass the “Shipyard” is not evidence—direct or indirect—of intent to confuse customers of Shipyard beer into purchasing Logboat beer instead. Indeed, Logboat had ceased describing the yard as the “Shipyard” by January 2016, and thereafter called it “The Park” instead—which evidences a desire to avoid confusion. As discussed above, “shipyard” is a word in the English language, and the use of the term in reference to a space adjacent to a taproom, rather than in relation to any product purportedly competing with Shipyard, does not constitute even indirect evidence of intent to confuse.

The Judge also points out that that Shipyard's claim isn't just silly, it's a massive overreach in an attempt to prevent Logboat from even experimenting with different flavored beers:

Finally, Shipyard’s contention that Logboat’s limited sales of Raspberry Shiphead Ginger Wheat beer and Jasmine Shiphead Ginger Wheat beer are “in direct competition and overlap with Shipyard’s HEAD flavored beers, thereby knowingly expanding its use and intentionally amplifying the likelihood of confusion,” is unconvincing. Logboat did not co-opt Shipyard’s “—HEAD” branding style. It did not call the beers “Rasberryhead” or “Jasminehead.” Instead, Logboat added a descriptive element to its own properly registered mark to reflect what Shipyard itself describes as “a unique flavor profile . . . .” . Accepting Shipyard’s argument would require precluding Logboat either from adding any new flavors to its ginger wheat beer, or from accurately describing any new flavors it adds to its ginger wheat beer. In other words, Shipyard’s proposed prohibition against adding any terms descriptive of flavor or aroma to the Shiphead Ginger Wheat beer would prevent Logboat from experimenting and innovating with the beer itself—an unreasonable and untenable result for an action to protect a trademark.

Somewhat strangely, the folks at Shipyard both haven't taken to the judge's lesson on trademark law and still seem to want to exert some control over Logboat's product packaging.

“We still feel it’s an infringement and the judge didn’t,” said Fred Forsley, the founder and president of Shipyard Brewing. He said he plans to call the owners of Longboat Brewing to see if the two companies can work out an arrangement to avoid any confusion in the future.

That sounds like activity that would have been appropriate a year and a half ago, before the lawsuit was ever filed. After all, there has been a longstanding tradition of congeniality within the craft brewing business. But after it attempted to bully them with a stupid trademark lawsuit, why in the world would Logboat bother returning Shipyard's calls?

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Posted on Techdirt - 16 July 2018 @ 8:05pm

Progress Isn't Linear: YouTube TV's World Cup Flub Threatens Public's Trust For Sports Streaming

from the cup-up dept

As we've pointed out any number of times over the past few years, cord-cutting is a very real thing and represents a threat to the cable television industry as it exists today. One of the last threads from which that industry largely hangs is professional sports broadcasts, with cable network providers having traditionally locked up pro and college sports broadcast rights in long-term exclusive deals. That has slowly begun to change, as the leagues of the world have finally gotten on board with streaming providers big and small, connected to the cable industry or not. If this is adopted en masse, it puts disruptive change for cable on the horizon.

But progress isn't linear and one of the threats to keeping this train on its tracks is the quality of the experience for users that dive into these sports streaming options. Especially early on in this kind of change, providers getting things right is extremely important, as reputations and public perception of the viability of sports streaming are more than somewhat on the line. And YouTube recently botched its broadcast of the World Cup match between England and Croatia.

In the middle of Wednesday's World Cup semifinal match between England and Croatia, YouTube's live TV service suffered an unfortunately-timed outage (not unlike ones we've seen from Sling or Hulu). Naturally, it enraged YouTube TV subscribers who had picked up the service specifically to catch live broadcasts like that game, and now it's offering an apology in the form of a credit.

There are several unfortunate factors at play for why this specific screw-up is worse for the reputation of sports streaming than it might have been otherwise. We can start with the most obvious factor: this is YouTube we're talking about. Look, there are plenty of good streaming service providers out there, but YouTube is the king of them, by reputation if not by fact. Having that name tied to this screw up is likely to register with the public as an indication that streaming for sports may not be ready for prime time.

The second factor: this was the World Cup we're talking about. The popularity of this event, and its related viewership, is immense. The public knows that. Any streaming service for World Cup broadcasts has to know that its service is going to be heavily trafficked and ought to have its shit in order to accommodate the event's popularity. Heavy viewerships shouldn't be a surprise and, whatever the actual cause of YouTube's interruption, it will be assumed by most that viewership load played a factor.

Now, as the post notes, streaming interruptions have happened before and they will happen again. Much of the reaction to what I outlined above will be at least in part unfair. But if you're rooting for sports streaming to erupt in popularity, or if you're a streaming provider trying to get more leagues on board, this kind of a screw up was about as bad in terms of timing as it gets.

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Posted on Free Speech - 13 July 2018 @ 10:42am

Congressman Introduces Legislation To Criminalize Protesting In A Mask

from the paging-guy-fawkes dept

It's a weird time to be an American for many, many reasons, but the way the government and the public views and responds to public protests has to be among the very top on the list. Protests, for those of you who haven't bothered opening up a history book, are as American as apple pie, baseball, and drone strikes. Civic engagement via public demonstration is so central to the American idea that it is enshrined in the First Amendment, with rather limited wiggle room for government to bottle it up. It is also notable that the courts, including the Supreme Court, have ruled previously that anonymity is absolutely protected by the First Amendment as well. The EFF's page on anonymity makes it plain that this has long gone beyond the realm of online or digital speech.

The Supreme Court has ruled repeatedly that the right to anonymous free speech is protected by the First Amendment. A frequently cited 1995 Supreme Court ruling in McIntyre v. Ohio Elections Commission reads:

Anonymity is a shield from the tyranny of the majority. . . . It thus exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular: to protect unpopular individuals from retaliation . . . at the hand of an intolerant society.

Which brings us back to the weirdness of the present, in which House Congressman Dan Donovan from New York has submitted legislation that seeks to criminalize protesting while wearing anything that covers one's face.

Whoever, whether or not acting under color of law, while in disguise, including while wearing a mask, injures, oppresses, threatens, or intimidates any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same, shall be fined under this title, imprisoned not more than 15 years, or both.

This represents a severe ratcheting up of the sentencing structures just for wearing a mask. Now, you may be saying that this bill is not targeting protesters, but those who break the law as described above. Except we have to place this bill in the context of reality. That context includes first that the language in the bill as what counts as a violation is overly broad (oppresses, threatens, or intimidates) and second that the government has shown itself to be enormously awful at not trying to criminalize peaceful protests it doesn't like. And, if anyone had any question as to what this bill is specifically intended to do, one need only look to the nickname Donovan gave it to conclude that this is as pure an attempt to make the infringement of speech as partisan as possible as can be found.

Section 1. Short title

This Act may be cited as the Unmasking Antifa Act of 2018.

Antifa, of course, being the favored bogeyman target from the political interests of those supporting the President, at least at the moment. And, sure, some protests where Antifa has participated in have gotten out of hand and criminal activities have taken place. We have laws for that. Using them as an excuse to specifically outlaw wearing a mask or face-covering while protesting is just plain stupid.

And pretty plainly unconstitutional. I would guess Donovan knows that, too, and is actually using this bill purely as a, shall we say... "virtue signal" to his constituents without having any expectations that it will both pass into law and defeat the immediate First Amendment challenges that will surely be thrown at it from many places. And, in case it isn't clear, playing those sorts of political games with free speech is about as scummy as it gets for a politician.

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Posted on Techdirt - 12 July 2018 @ 7:46pm

How A US Burger Chain Brought 'Ruby Tuesday' Full Circle Through Trademark Bullying

from the the-circle-is-now-complete dept

Circles are so zen. So jedi. So the force. "The circle is now complete," Darth Vader says in A New Hope. Well, it turns out that the universe has a way of pulling this sort of dynamic out of the realm of the mystical and into the far more mundane realm of trademark bullying. You may be aware of the American burger chain Ruby Tuesday. The chain has locations all over the United States and internationally. Notably, the company's website lists no locations in Australia. This is notable because the American chain has for some reason decided to try to bully an Australian rock band, Ruby Tuesdays, into changing its name over trademark concerns.

Ruby Tuesday the restaurant has served Ruby Tuesdays the band with a letter outlining their intent to sue. It reads: “While many artists pay tribute to other artists through imitation, when it comes to imitating famous trademarks, only Ruby Tuesday is entitled to the goodwill of its mark.”

The letter continues: “In fact, the knowing adoption of a mark intending to play off a well-established mark is among the most egregious of trademark violations, warranting courts to apply the harshest of consequences.”

The corporation has demanded that the group change its name, close down its website, destroy all of its merch and pass on all of its profits as compensation.

So, a number of things should be immediately obvious here. First, these two organizations are not remotely in the same marketplace. Burgers and music acts offer no avenue for public confusion as to what the source of the prodct is. Second, for that and a myriad of other reasons, there is no potential for confusion here. The entire point of trademark law is to keep consumers informed as to the source and affiliations of a product. That is simply not in issue here. All of that is particularly so when you consider that Ruby Tuesday does not have any storefront locations in the entire country in which the band exists. We can just add here for context that this is a penniless hobby band that has very little notoriety, even in Australia.

But back to the concept of this representing a circle. Our younger readers may not realize this, but the Ruby Tuesday restaurant chain has an ironic source for its name.

The restaurant's name was derived from The Rolling Stones song, "Ruby Tuesday", which was popular during the time of the first restaurant's inception. The name was suggested to founder Sandy Beall by Bob Hope.

"The circle is now complete." Yes, the restaurant yoinked the title of one of the most popular songs from one of the most popular rock bands ever for its name in the 1960s and then turned around and attempted to bully a little-known rock band out of that same name in the present. I'll give Ruby Tuesday credit here for the pure audacious irony of its tone-deaf attempt at legal asshatery.

Zero credit is awarded, however, for having anything resembling a valid trademark claim.

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Posted on Techdirt - 11 July 2018 @ 3:47pm

Latest Denuvo Version Cracked Again By One Solo Hacker On A Personal Mission

from the crack-up dept

Denuvo is... look, just go read this trove of backlinks, because I've written far too many of these intros to be able to come up with one that is even remotely original. Rather than plagiarize myself, let me just assume that most of you know that Denuvo is a DRM that was once thought to be invincible but has since been broken in every iteration developed, with cracking times often now down to days and hours rather than weeks or months. Key in this post is that much if not most of the work cracking Denuvo has been done by a single person going by the handle Voksi. Voksi is notable not only for their nearly singlehandedly torpedoing the once-daunting Denuvo DRM, but also for their devotion to the gaming industry and developers that do things the right way, even going so far as to help them succeed.

Well, Voksi is back in the news again, having once again defeated the latest build of Denuvo DRM.

This week, Voksi announced the passing of yet another milestone, one that’s bound to disappoint the people at Denuvo. After sinking endless hours into what he openly admits is a personal grudge against the company’s technology, Voksi revealed that its latest v4.9++ protection had fallen. Speaking with TorrentFreak, Voksi says that after tackling previous versions, a little while back he began dissecting the newer 4.7/4.8 builds (not official Denuvo versions but a numbering system used by the cracking scene).

“Man, it seemed impossible back then. The obfuscation was insane, I had no idea what to do. So, over the next two months, with little breaks from time to time, I was analyzing exactly how [Denuvo] does those hardware checks,” he notes. “Then I tried my tricks for 4.7 on 4.8, but something wasn’t quite right. It was way more obfusticated and had some strange patterns and I couldn’t figure out why it was like that. Soon enough though in June things started to change.”

Now, while we generally dislike DRM here at Techdirt, we're not in the business of cheering on a crack-artist defeating any particular DRM. What is right in our wheelhouse, however, is discussing the overall impact of DRM and its effectiveness. We've spent hundreds of words already pointing out that this is an arms race every DRM maker loses, with Denuvo in particular falling at a rapid pace. With that in mind, we've wondered aloud why game companies even bother with any of this DRM nonsense, when they instead could be connecting with their customers and giving them real reasons to buy with innovative business models and engagement.

But this point must be most evident when it's noted that Voksi, a single individual, has nearly brought Denuvo to its knees as some insane sort of solo project.

What comes next for 21-year-old Voksi remains to be seen but given his determination, other games are probably being worked on right how. He says that several other titles use 4.9 or 4.9++ protection so it’s possible he’ll have more surprises in the days and weeks to come.

“In the end, it might take some more testing and test cracks, but I’m very happy to announce that I won’t stop until we are Denuvo Cancer Free from all games,” he concludes.

Whatever you might think of Voksi as an individual or DRM and game-cracking in general, what should be immediately apparent is that relying on DRM that is vulnerable to one 21 year old with enough motivation to kill it over and over again is a fairly shitty business practice in which to be engaged. And, yet, game companies still work with Denuvo and other DRM makers for reasons I cannot possibly fathom.

When one person negates that work, it's probably time to come up with a new plan.

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Posted on Techdirt - 10 July 2018 @ 7:40pm

ESPN Latest To Nix User Comments, Abdicate Its Responsibility For Fostering A Good Community

from the comment-nowhere dept

Readers of this site will be aware of the trend over the past several years for news and media sites across the internet deciding to nix their respective comments sections. This wave of muzzles on the communities that previously participated in these sites has come with a variety of reasons or excuses, depending on your perspective. Some sites have noted that comments sections devolve into the worst humanity has to offer, with vile speech and spam-bots sucking up all of the digital oxygen. Other sites have suggested that some sort of liability comes along with any proper moderation of their comments sections. Still others have pointed towards social media platforms that can better take over the duties as some sort of 3rd party community gathering place, be it on Facebook or Twitter. All of these reasons are silly and false, or they simply abdicate the site's responsibility for fostering a well-functioning community of commenters. Here at Techdirt, we love our own community and value the ever-living hell out of our comments, be they supporters of our positions or well-meaning dissenters. Trolls come along for the ride, of course, but we trust our own community to act as a moderating force against them.

And, yet, the trend continues. The latest site to shutter its comment section is ESPN, to much unfortunate fanfare at Deadspin.

No longer will you be able to read an ESPN.com article and then underneath receive the dumbest possible reactions to it. The Worldwide Leader has phased out its Facebook-hybrid comment sections, as confirmed by a company spokesperson this week. None of the keyboard mashing will be archived—they will be lost in time, like tears in rain.

Here's the official statement:

"Fans currently have more touchpoints than ever to voice their comments. We value their opinions, and feel that we are better able to serve them through our customer care team and our social platforms. In fact, we have and are continuing to create content for social that embraces these conversations and interacts with fans."

This is an abomination. Chintzy Instagram memes are no substitute for jokes that were plagiarized from somewhere else, or completely indecipherable opinions on Colin Kaepernick.

Readers at Deadspin will recognize this as classic Deadspin snark. The site's writers, despite having its own vibrant commenting community, have always taken a dim view of user contributions to the discussion. Somewhat amazingly, Deadspin in particular has a fairly good commenting community of its own, only deepening the mystery for the stance it takes here.

Well, perhaps not so mysterious. Simplistic might be the better word. Deadspin's objections, and likely ESPN's reasoning as well, is that ESPN comment sections tend to be the very kind of vile, idiotic contributions that we discussed in the intro. Deadspin, and likely ESPN, seem to stop the thought process right after making that determination and use it as its reason to muzzle the ESPN community entirely. What's lost in that kind of thinking is that the onus for fostering a good commenting community at ESPN is on... ESPN.

It's always been this way. There is so much benefit to be derived from a vibrant comments section, from increased reader engagement, to diverse thoughts that can shape discussion and the future work of the writers of posts, to a treasure trove of useful information and tips that journalists and commentators ought to be salivating over. The real story here is that ESPN has decided to toss all of those benefits out the window because it doesn't want to do any heavy-lifting to create a comments section that produces that kind of benefit.

It's the easy way out and no amount of snark or accurate portrayal of the current comments section as a cesspool will change that. Sites, if your comment section sucks, it's your fault. Taking your ball and going home, even if you're ESPN, is not the best option. It's not even a good option.

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Posted on Techdirt - 5 July 2018 @ 7:33pm

Over The Top Sports Streaming Comes To Europe With Amazon's Deal With The Premier League

from the it's-spreading dept

We've made the point repeatedly that one of the last and most important threads on which the current cable television industry is hanging is that of live sports. While cord-cutting is indeed a thing, the many broadcast agreements pro and major college sports leagues have with cable broadcast partners keeps the cord-cutting from becoming a deluge from a burst dam. That being said, small but important steps have begun with many leagues, which are finally recognizing the demand viewers have for over the top streaming options. While there are still far too many restrictions in these sports streaming options, there is no doubt that American sports leagues have begun snipping away at this thread for cable television.

And now it this practice is coming to Europe as well. Specifically, Amazon has secured a relatively small but massively important streaming broadcast agreement for Premier League soccer.

Amazon has scored the rights to stream Premier League football (soccer) matches in the UK for three years. It’s the first time that Brits will be able to watch a full day of games on a streaming-only service, and Amazon will offer 20 games next season to Prime subscribers at no extra cost. Amazon has secured one of the smaller packages of Premier League games, but an important one over the festive period. Prime subscribers will get access to the first midweek December games rather than the big weekend fixtures, and Amazon will also be streaming all of the festive Boxing Day fixtures.

“This will be the first time a full round of Premier League fixtures will be broadcast live in the UK,” notes Amazon. It’s a deal that will mean British football fans will need to have an Amazon Prime subscription to watch any Boxing Day matches live. Boxing Day is a public holiday in the UK, and it’s a big day of football matches. It’s also the day after Christmas Day, when most British football fans will sit around in their pajamas and feast on leftover Christmas dinner food and watch matches live.

The plans Amazon has for this specific broadcast agreement obviously revolve around more than just revenue from the matches themselves. The timing of the games is key, centered around the post-Christmas holiday. Amazon will be pushing the public to sign up for Amazon Prime so that they can stream these games, while at the same time pushing those same customers to do their holiday shopping on Amazon as well. It's a way to gobble up marketshare in a fairly ingenious way.

But the greater overall effect could be on the cable industry in Europe. Imagine if the viewership numbers for these streaming games compares favorably to broadcast cable television numbers. Suddenly, the Premier League will have found a brand new partner to show its games, one that is motivated by more than just selling advertising during commercial breaks. There's a synergy there that cable TV simply can't have. And, of course, the public would have far less use for cable TV if it can get its sports via streaming.

This trend has and will continue. And it doesn't look good for the cable industry.

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Posted on Techdirt - 2 July 2018 @ 3:29pm

In Contrast To PUBG's Silliness, Bethesda's Copyright Suit Against Warner Bros. Is All About Copyrightable Source Code

from the legit-if-true dept

As the silly copyright lawsuit between PUBG and Epic Games has now come to a fortunate end, with the former dropping the lawsuit it filed over similarities in game genre and broad gameplay aspects that are absolutely not afforded copyright protection, it's probably worth highlighting a lawsuit that is the polar opposite in terms of its merits. Now, I want to stress at the outset that I have no idea as of yet whether or not the allegations that spurred this lawsuit are true or not, but it's the actual claims that are important. If adjudicated as true, those claims are absolutely valid from a copyright law standpoint.

Bethesda, makers of the Fallout franchise in its current iteration, has filed a lawsuit against Warner Bros. and Behavior Interactive, which together have released Westworld, a mobile park management simulation based on the hit HBO series. Bethesda has its own simulation of this kind, called Fallout Shelter. While Bethesda's filing does indeed make much of the clear similarities between the games animations and aesthetics, as well as some of the folks behind the Westworld game clearly saying they drew inspiration from Fallout Shelter, the important difference here is this ultimately comes down to reused specific code. How this code got reused is also part of the breach of contract allegations in the suit, as it turns out that Behavior Interactive was involved in creating Bethesda's original product.

Bethesda has stated that Behaviour Interactive was involved in the creation of Fallout Shelter, before going on to make the Westworld game a few years after. Court documents reportedly state that Bethesda believes Behaviour Interactive has stolen its designs, artwork, and code, going on to use them again in this latest project in conjunction with Warner.

Bethesda's filing goes into great detail showing not only aesthetic similarities in the overall game design and character illustration, but specifically in the animations involved in the game as well as how the game screen reacts when players interact. Reading through the filing, it's fairly clear that this was more than a game merely inspired by Fallout Shelters in terms of gameplay, but instead looked to be a pretty faithful recreation of it, except themed to Westworld. Still, despite all of that, Bethesda focused on the code it alleges is reused to achieve this similarity, which is important.

And, while Warner Bros. has responded claiming all of this is false, and that Behavior Interactive has assured it that no code was reused, there is some additional evidence that sure points to that not being the case.

Aside from these mostly aesthetic similarities, it turns out that there's one other pretty suspicious thing that Bethesda has noticed, potentially giving the game away even more. Apparently, the same bugs that were originally present in an early version of Fallout Shelter have also been found in Westworld. Oh dear..

We talk a great deal about the idea/expression dichotomy in copyright law specifically, but it should be acknowledged when a content creator gets this question right in its lawsuit allegations. Again, we don't know yet if the allegations of code reuse are true at this point. But someone should wave this filing in front of the folks at PUBG to show then what a legitimate copyright lawsuit in gaming looks like.

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Posted on Techdirt - 28 June 2018 @ 7:27pm

We Hardly Knew Ye: PUBG Drops Lawsuit Against Epic Over Fortnite Similarities

from the rage-quit dept

About a month ago we learned that PUBG Corp., the company behind the game PlayerUnknown's Battlegrounds, had sued Epic Games, makers of Fortnite, earlier this year in South Korea. This whole dust up between the two game developers has been monumentally frustrating, specifically due to the folks at PUBG being confused as to whether video games get any IP protection (they do!) and, then, whether fairly generic game modes and game genres are afforded copyright protection (they're not!).

The problem for PUBG in all of this is that its game mode of a battle royale pitting a hundred players against each other is simply not something that fits into copyright law's protection. As we've explained, there is an idea/expression dichotomy in many country's copyright laws, in which the specific expression is afforded copyright but mere ideas are not. For example, the art assets for PUBG absolutely are copyrightable, while the concept of a battle royale is not. Due to that, PUBG's lawsuit was always going to face a steep uphill climb to come out in its favor.

With that in mind, then, it's probably not terribly surprising that PUBG has now dropped the lawsuit entirely.

The studio behind PlayerUnknown’s Battlegrounds has dropped its lawsuitagainst the creators of global sensation Fortnite, ending a legal battle between two of the world’s hottest games.

PUBG Corp. sent a letter of withdrawal to Epic Games Inc.’s attorneys on Monday and the South Korean case has since closed, according to the website of the local court system. PUBG and its law firm confirmed the action but wouldn’t say why, nor whether a settlement had been reached. Representatives for Epic in Korea had no immediate comment.

There is of course no way to be sure, but with PUBG not crowing about a settlement, it's plausible none was ever reached. Certainly on the merits it would make much more sense for the legal team for PUBG to have finally convinced the executives there that either the case was not likely to be a winner, or that their interests were better served not entering into a lengthy and expensive legal battle with Epic, or both.

Complicating all of this is how intertwined PUBG and EPIC are, from ownership of both to the technology behind PUBG.

Both are part-owned by social media and gaming giant Tencent Holdings Ltd. and have carved out commanding positions in the Battle Royale format. But PUBG contended in January that Epic’s Fortnite mimicked many of the characteristics of its own title. To complicate matters, Epic provides PUBG with its Unreal Enginetechnology, used to create PlayerUnknown’s Battlegrounds and an industry standard for professional game developers.

All of this would seem to add up to PUBG finally coming to its senses. Ultimately, that's a good thing for all parties, but it would be great if game companies motivated by jealousy didn't attack one another in the first place.

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Posted on Techdirt - 28 June 2018 @ 1:31pm

A Twitter Leak Scuttled An NBA Draft Day Trade This Year

from the the-power-of-tweet dept

It's probably well known at this point that major professional sports leagues have a strange relationship with Twitter. On the one hand, many leagues use the social media site quite well when it comes to sharing highlights and getting their brands out there in front of people. Major League Baseball is particularly good at this, although the NBA is not terribly far behind. On the other hand, these leagues have been known to adopt quite restrictive policies when it comes to who can share what on Twitter. This is especially the case on league draft days. For instance, the NFL insists that its broadcast partners, such as ESPN and the NFL Network, not allow their journalists to tweet out draft picks on draft day before they are announced on television. The league obviously wants as many eyeballs tuned into the drama on television as it can muster and has theorized that making TV the first place to get draft picks announced will help with that.

For anyone that follows sports on Twitter, this is obviously a very, very stupid theory. Many sports journalists are not working for ESPN and NFL Network, and they quite happily inform followers of draft picks before they are announced based on their sources. This is how journalism works.

But it was probably a unique event at the NBA draft the other night that a Twitter scoop actually caused one NBA team to back out of an agreed-upon trade.

Atlanta Hawks GM Travis Schlenk told San Francisco radio station 95.7 The Game this morning that he had a deal in place with the Milwaukee Bucks to move up from the 19th pick to the 17th. The Hawks knew they wanted one of two players—including Maryland shooting guard Kevin Huerter—and were sufficiently convinced that the Bucks and the Spurs (at 18) would take the two guys. So they were prepared to part with future picks in order to move up two spots and get one of their guys.

However, Schlenk said that the deal became unnecessary because Shams Charania reported that the Bucks were going to take Donte DiVincenzo, who was, apparently, not one of the two they wanted. Pick tipping is not just helpful for fans, it turns out.

My first reaction is Schlenk is good at his job, having his team monitor Twitter for this kind of intel. If sources are willing to share another team's intentions on draft night with a journalist who is all too happy to tweet that information out, it only makes sense for Schlenk to want to slurp that information up and let it inform his draft day choices.

But my second reaction is one of worry that the NBA will catch wind of this and absolutely freak the hell out. Leagues as big as the NBA almost can't help themselves when it comes to this kind of thing. The idea that a trade was scuttled due to great reporting and the tipping of a pick almost certainly isn't going to sit well with Commissioner Adam Silver and it feels quite impossible that no action over this will be taken by the league.

If the end result is the NBA trying to lock things down a la the NFL, that would be unfortunate and ultimately ineffective. If they take the much more likely action of trying to cut off access to sports journalists from teams on draft day, that would be worse for fans, for its teams, and for its own marketability. Here's hoping Silver, who is relatively forward-thinking, keeps a cooler head than I fear.

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Posted on Techdirt - 27 June 2018 @ 10:46am

Tech Employees Revolting Over Government Contracts Reminds Us That Government Needs Tech More than Tech Needs Government

from the don't-be-complicit dept

While we were still in the middle of the heat storm over Donald Trump's decision to enact a zero tolerance border policy that resulted in children being separated from their parents at the border in far greater numbers than previous administrations, there was some interesting background coverage about the employees and customers of big tech companies like Microsoft receiving backlash for contracting with ICE. While much of that backlash came from outside those companies, there was plenty coming from within as well. Microsoft in particular saw throngs of employees outraged that the technology they had helped to develop was now being turned on the innocent children of migrants and asylum-seekers.

In an open letter to Microsoft CEO Satya Nadella sent today, employees demanded that the company cancel its $19.4 million contract with ICE and instate a policy against working with clients who violate international human rights law. The text of the employee letter was first reported by the New York Times and confirmed by Gizmodo.

“We believe that Microsoft must take an ethical stand, and put children and families above profits,” the letter, signed by Microsoft employees, states. “We request that Microsoft cancel its contracts with ICE, and with other clients who directly enable ICE. As the people who build the technologies that Microsoft profits from, we refuse to be complicit. We are part of a growing movement, comprised of many across the industry who recognize the grave responsibility that those creating powerful technology have to ensure what they build is used for good, and not for harm.”

The 300 employees that signed the open letter represent a fraction of Microsoft's total work force, of course, but you can bet that those willing to sign such a letter also represent a fraction of the staff that share the letter's viewpoint. For its part, Microsoft condemned the Trump separation policy (how brave!), but the company has also refused thus far to acknowledge whether the ICE contract includes facial recognition software or AI. Such powerful tools would seem to be in the wheelhouse of what ICE would want as it carries out this ridiculous policy and Microsoft's refusal to say such tools are not included in its contract with the agency sure seem to suggest that they are.

Of course, Microsoft is niether the only tech company going through this, nor the company that has had the largest in employee backlash. That distinction likely goes to Google, where employees not only voiced displeasure over the company's contract to provide AI technology for the Pentagon's drone warfare program, but where many people actually up and quit.

The resigning employees’ frustrations range from particular ethical concerns over the use of artificial intelligence in drone warfare to broader worries about Google’s political decisions—and the erosion of user trust that could result from these actions. Many of them have written accounts of their decisions to leave the company, and their stories have been gathered and shared in an internal document, the contents of which multiple sources have described to Gizmodo.

Google has long had a culture that encouraged employee feedback on the products it produces, in some cases such influence resulting in real policy shifts. The employees protesting Google's drone contract say that has changed recently, with upper management far less transparent about what work the company is doing and far more deaf to the opinions of the employees that actually carry that work out. Combine it all with the growing distrust of Google in the public and it can appear that Google is trying to pantomime the caricature it is so often painted to be: faceless corporate greed-hounds without soul or morality.

And then there is Amazon, where the company's AI contracts with the government and its granting of access to data-mining company Palantir also resulted in anger from within.

Amazon employees objected to the Trump administration’s “zero-tolerance” policy at the U.S. border, which has resulted in thousands of children being separated from their parents.

“Along with much of the world we watched in horror recently as U.S. authorities tore children away from their parents,” the letter, distributed on a mailing list called ‘we-won’t-build-it,’ states. “In the face of this immoral U.S. policy, and the U.S.’s increasingly inhumane treatment of refugees and immigrants beyond this specific policy, we are deeply concerned that Amazon is implicated, providing infrastructure and services that enable ICE and DHS.”

Amazon employees want the company out of the policing and immigration business, and have gone further by calling on the company to boot customers working with ICE off of its platform. Leadership at Amazon, as elsewhere, has been mostly silent, but it's worth noting that Amazon shareholders actually kicked off the angry protests even before its employees did so. Whatever shakes out of this, this isn't something Jeff Bezos is going to be able to ignore.

This is a good time to remind people that companies, including big tech companies, are not comprised of the steel and glass that makes up their offices, but of the people that run and work within them. It's also worth acknowledging that the government has been after big tech firms for some time over the very tools that are likely in this contract. The lesson in this is that the government needs tech companies to carry out this disaster of a policy more than tech companies need the government for anything at all.

In other words, if these companies decided to put some moral courage on display en masse, it would have an effect. If they elect to do otherwise, their employees may force their hand. After all, the people signing these government contracts are certainly not the ones fulfilling them. That work is being done by the very employees revolting in protest. Given that there is pressure coming from not just within these companies to get out of the immigration business, but from outside as well, business interests may be lining up to give these companies an excuse to show a little backbone.

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Posted on Techdirt - 26 June 2018 @ 7:48pm

Voodoo Brewery Changes Beer Name By Dipping It In Snark In Response To Pitt Trademark C&D

from the mission-accomplished? dept

Snark is a wholly underrated tool for dealing with trademark bullies. While we've seen it employed in the past, the victim of trademark bullying turning the tables on the bully with humor is something that still is far too rare. One brewery recently showed exactly how this is done.

Voodoo Brewery has been selling its H2P IPA since 2014, with a can label that nods towards the University of Pittsburgh, where the brother of the brewery's founder went to school. It was only in late 2017 that the school sent out a cease and desist letter, claiming trademark infringement.

Voodoo started selling H2P in its original can in 2014. The beer grew in popularity and was twice featured on Pitt’s campus after its release. Then, in October, Pitt called Voodoo and asked it to cease and desist distributing the “H2P” IPAs with the school’s trademarked image, font and phrase. Voodoo released the newly designed cans a few weeks ago and they sold out in a couple of days.

Voodoo’s chief executive office, Matteo Rachocki, said that he and others at Voodoo were surprised at Pitt’s cease and desist request, since the beer was on the market for three years prior.

“We had been invited on campus to pour the beer twice, so we had just kind of assumed that we had their blessing,” Rachocki said.

That obviously wouldn't hold up as any kind of a legal argument, although one wonders what exactly explains the delay in Pitt's enforcement. The beer was not only known to the school, but had been displayed on campus, I assume specifically because of the tie in with the school. That sounds like it should have been an awesome example of a school understanding that the education and alcohol sectors are not common marketplaces, and working to support an alumnus. That possibility is now gone, with the school taking the strong arm route.

Well, it doesn't appear that Voodoo will be deprived of the last laugh, even as it complies with Pitt's C&D.

Rachocki met with Pitt officials Jan. 22 to work out a deal that would allow Voodoo to use Pitt trademarks. Rachocki said the new design for the can labels was on the conference room table when Pitt officials came to meet at the brewery. He said he presented the cans to make University officials aware of the brewery’s plan for the IPA if they couldn’t secure rights to Pitt’s trademarks. After an initially encouraging meeting in January, Rachocki said Pitt stopped responding to his emails.

The new cans still feature Pitt’s trademark blue and gold color scheme, but that’s where any allusions to Pitt end. The cans now read “NON-TRADEMARK INFRINGEMENT ALMA MATER IPA” with no other Pitt-related images.

The name refers both to the bullying Pitt did, as well as the fact that alumni work at Voodoo Brewery. Frankly, that's not a good look for Pitt in the public, but it's a wonderful example of how far a little snark can go in responding to trademark bullying.

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Posted on Techdirt - 25 June 2018 @ 4:04pm

Bahnhof Continues Its Crusade Against Copyright Trolls, Claims Swedish Copyright Law Divorced From Reality

from the good-guys dept

While it's always great to have ISPs side with their customers rather than capitulate to copyright trolls or the governments that allow them to operate, few go to equal lengths as Swedish ISP Bahnhof. Bahnhof is known for taking all kinds of actions to protect its customers and for fighting back against copyright trolls as viciously as possible. Happily, Sweden's Pirate Party has recently declared its own war on copyright trolls, giving the ISP an ally in the region.

But as the crusade by Bahnhof continues, the person in charge of the ISP's communications has published an open post on the company's site attacking the very heart of the laws that allow copyright trolls to operate in the first place. Here's how Carolina Lindahl sets the stage for what is currently going on in Sweden.

Lindahl notes that the Swedish Government sees a need for strict copyright infringement penalties while keeping the barriers for creators to go to court low because they often have limited resources.

“In copyright litigation […], it is often the author himself who is a party, and usually the author has limited financial resources,” the Government’s code for Penalties for Certain Serious IP violations reads.

When it comes to the low barriers in the Swedish legal system for allowing copyright holders to unmask ISP customers and go after them for settlements, this is the entire justification. And, look, you can understand how this would seem logical to many people. A musician, or author, or indie filmmaker needs to be able to protect him or herself from copyright infringement in a way that is low-barrier in cost and time. It was with those types of content makers in mind that the Swedish government organized its current copyright law.

The problem for that same government is that Lindahl is dedicated enough to have dug into the data to find out if the premise that built these laws actually holds up. It does not. Not even close.

Lindahl sifted through the legal paperwork related to copyright infringement cases filed at the Criminal Court, to see which companies are behind them. The research uncovered 76 cases, the majority of which formed the basis for the tens of thousands of piracy settlement letters that were sent out. Only five of these cases were filed by the creator of the work, Lindahl notes. In other instances, the creators were represented by intermediaries or licensees, such as Copyright Management Services and Crystalis Entertainment. While these companies may have the legal right to pursue these cases, they are not the original creators of the films they sue over.

“The government’s claim – that it is often the author himself who is a party – does not seem to be correct at all,” Lindahl writes.

Lindahl goes on to note that the other premise, that these plaintiffs are authors of limited financial resources, is also untrue. Going through the cases that have led to copyright trolling efforts again, they tend to have been brought by organizations that have millions in revenue. Because of a reality that differs from the government's premise, Lindahl argues that the end result is the extortion of citizens who actually are of limited means.

“The result is an extortion operation that is profitable for already profitable media companies and costly for young people, retirees, and other individuals on the margin, without the capability to tackle sudden costs of thousands of kronor."

Frankly, this is as complete a takedown of the false reasons for allowing copyright trolling to be legal as I've seen to date. The Swedish government has a problem in that it's reasoning for setting this copyright system up is on the record. That reasoning, as Lindahl has shown, is flawed beyond use. So that makes the law rather flawed as well.

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Posted on Techdirt - 22 June 2018 @ 7:39pm

Microsoft And Nintendo Team Up To Troll Playstation In Ads For Not Giving Gamers What They Want

from the trolling-as-advertising dept

Buckle up, because this seemingly mildly interesting story has a ton of intersections on topics we typically talk about here at Techdirt. As a preface, you should recall that we firmly believe that content is advertising and advertising is content. By this we mean that every bit of content a producer makes serves to advertise that producer's wider content library and that advertisements, in order to be engaging, must be useful and/or entertaining every bit as much as more traditional content typically is. We've also talked a great deal about how content producers in the digital spaces must connect with their fanbases, treat them well, and provide them what they want, or risk backlash. Add to that, finally, that we think restrictive protectionism in the name of wider profits often achieves the opposite of that goal.

Which brings us to Microsoft and Nintendo somewhat suprisingly teaming up to push out a bunch of ads centered on the ability for users of either to crossplay games across both systems.

For those of you who cannot see the video embed, it's an ad put out by both Nintendo and Microsoft pointing out that gamers on both systems can crossplay with one another on some games, including the example shown in Minecraft. Frankly, it's quite jarring to see these combo-ads (there are more) put out by two rivals in the console space. If you weren't well-tuned to the video game industry, you'd probably be left wondering what the hell was going on here.

The answer is that these ads are rather entertaining trolling attacks targeting Sony's Playstation 4, which has been the subject of some recent backlash coming out of E3 over the platform's lockdown on its system's games. While there is pretty much no such thing as a Playstation user that does not want crossplay enabled, and there are many who want it very much, Sony has gone the protectionist route. This is an attempt to convince friends of friends to buy Playstations so that they can play together, I suppose, but it's stupid and awful.

Some of the world's biggest games, from Fortnite to Minecraft to Rocket League, all support some variety of crossplay, allowing people with PCs, Xbox Ones, mobiles and Nintendo consoles to play on the same servers. Yet Sony continues to refuse to allow PlayStation consoles to get in on the fun when it comes to playing with Microsoft or Nintendo consoles.

In the wake of E3 and the disappointment of Fortnite's account locking, then, two of the companies that do allow crossplay have teamed up to take a swing at the PlayStation 4 with this commercial for Minecraft, a game that's also available on PS4.

A couple of reactions. First, Sony made this shit-sandwich for itself by not giving its customers what they want for no other reason than protectionism, so it's not without fun to see them have to eat it up. Second, the combo-ads put out by Microsoft and Nintendo are both useful and, if you enjoy watching huge companies troll one another, fairly entertaining. And the companies have kept this up as a coordinated effort, rather than just limiting it to a one-off video ad.

And the Xbox Twitter account responded, of course, happily saying they're ready to build something together. While this might have flown right past many gamers, enough will realize that both companies are going out of their way to rub Sony's nose in crap to make this all a bit fun. Whether Sony will respond to the ribbing by finally unlocking its garden remains to be seen.

In the meantime, though, this is a great example of advertising as content.

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Posted on Techdirt - 22 June 2018 @ 2:29am

Studios Remove 'Spyware' From Several Games As Gaming Public Revolts

from the just-a-little-spyin' dept

If this is becoming a trend, it's a really, really stupid one on the part of the video game industry. You may recall several recent posts about software, mobile apps, and video games that have sneakily installed what many call spyware onto users' machines, or otherwise inject software without the knowledge of the user. From soccer apps to flight simulator mods, users and gamers sure as hell don't like it when they have to find out from internet sleuths that the software they're using is spying or using them behind the scenes without their knowledge.

And now we learn about Red Shell, a software company that has contracted with multiple game publishers. Red Shell's software is installed alongside games to track all kinds of information about the machines on which those games are played. It gathers information about a gamer's operating system, browser version, IP address and more, all with the goal of feeding information to game publishers to evaluate how effective their advertising models are. We should note here that Red Shell specifically claims that personal information is not collected.

“We don’t collect names, emails, or addresses,” Red Shell says on its website, noting that games can offer an opt-out to players if developers so choose. “Our service basically says ‘this computer clicked on a link from this YouTube video and the same computer played your game.’ We have no interest in tracking people, just computers for the purposes of attribution.”

Whatever lengths Red Shell goes to anonymize this data, the simple fact of the matter is that all of this was done without the knowledge of the gaming public installing these games. And we're talking about a massive amount of games found to include Red Shell software thus far.

The software has been discovered in over 50 games including The Elder Scrolls Online, Conan Exiles, Hunt: Showdown, and Civilization VI. For the past couple weeks, a contingent of players have dedicated themselves to weeding it out, decrying it as “spyware” that many companies failed to disclose.

“Red Shell is a spyware that tracks data of your PC and shares it with 3rd parties,” Redditor Alexspeed75 wrote last week in a thread that’s became something of a rallying place for aggrieved players. “On their website they formulate it all in very harmless language, but the fact is that this is software from someone I don’t trust and whom I never invited, which is looking at my data and running on my PC against my will. This should have no place in a full price PC game, and in no games if it were up to me.”

Since then, publishers have either been removing the Red Shell software from game installs, or else pledging to not use the software in the future. The folks over at Red Shell are not pleased with all of this, obviously, claiming that this is all a case of the public misunderstanding what it's software does and does not do.

And, look, to some extent, Red Shell might be getting an overly bad rap here. What immediately strikes me is how different this story might be had Red Shell or, more importantly, game publishers simply kept all of this known and above board. If gamers were more informed of what Red Shell software does and on what games it's included, I doubt the same kind of outcry would be on display. And, if Red Shell's software is as innocuous as it claims, that kind of disclosure shouldn't have been a problem.

Instead, everyone acted sneaky and is now claiming frustration at the lack of trust the public didn't afford them all retroactively.

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Posted on Techdirt - 20 June 2018 @ 1:36pm

Warner Bros. Turns Harry Potter Fan Events Into Events For The Franchise That Must Not Be Named

from the trademarka-kedavra dept

It's always a weird look for companies and IP owners to go after clear expressions of fandom from their customers. And, yet, this sort of thing is done often, with fan get-togethers or festivals regularly being threatened by the IP owners they're fans of. Often times we hear the usual nonsense trademark law excuse that fans must be served with cease and desist letters, or sued, or else the trademark owner will lose its rights. That, as we've discussed repeatedly, is not true, as there are other options available to the trademark holder besides threatening fans.

Warner Bros. has many of the rights to the Harry Potter franchise and the company has not been shy in the past about firing off threat letters to fan groups and festivals. Previously, Warner Bros. has claimed that it only abused fans in this way if there was a commercial aspect to the events. Even under that policy, the legal team for the studio was, shall we say, imperfect. But Warner Bros. has apparently had something of a policy shift that is causing it to go after far more of these fan events, causing Potter fans everywhere frustration and anger.

"It's almost as if Warner Bros. has been taken over by Voldemort, trying to use dark magic to destroy the light of a little town," said Sarah Jo Tucker, a 21-year-old junior at Chestnut Hill College, which hosts a Quidditch tournament that coincides with the annual suburban Philadelphia festival.

Philip Dawson, Chestnut Hill's business district director, said Warner Bros. reached out to his group in May, letting them know new guidelines prohibit festivals' use of any names, places or objects from the series. That ruled out everything from meet-and-greet with Dumbledore and Harry to Defense Against the Dark Arts classes.

"It was very quickly apparent (we) weren't going to be able to hold festivals like years past," he said. The late October festival drew about 45,000 fans last year to the historic neighborhood's cobblestone streets. This year, they will instead have a "wands and wizards" family night and pub crawl and other magic-themed events — and people can still dress as their favorite characters.

As the AP notes, this policy shift is causing these notices to go out to festivals all over the country, each time stating that new policies prohibit this sort of fan-fun at local festivals. As is often the case, Warner Bros. is claiming that trademark law requires it to take these exact actions. Again, this is not true. The studio has many other options, including offering a cheap license to the festivals to allow the fun to go on while having them be officially sanctioned. That it chose not to pursue that course means that Warner Bros. is squarely more interested in being a legal bully than it is in allowing fans of its franchise to celebrate their fandom.

It's an especially stupid track to take, given that these organic fan festivals are certainly in some part responsible for propelling the Potter franchise to the stardom it has now achieved.

Philadelphia Potter fan Sarah McIntyre thinks it's ridiculous for Warner Bros. to target the festivals.

"They are acting like the Dursleys," said the 34-year-old yoga teacher and bookkeeper. She said they should be encouraging communities to bring Harry Potter to life. "Creating interest in the franchise would increase revenue," she said.

How this is not obvious to the folks at Warner Bros. is beyond me. The studio ought to want people talking about the franchise as widely as possible and it's hard to see how fan events at local festivals would do anything other than cause new potential consumers of the franchise to generate some interest in it. As the AP takes pains to note, Warner Bros. is certainly within its rights here, or is at least likely so. But that doesn't make this is a smart business decision, never mind the most optimal outcome for its franchise. Instead, it comes off as purely unfriendly to fans, which is just not a good look for an entertainment product.

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Posted on Techdirt - 19 June 2018 @ 7:33pm

More Taco Tuesday Trademark Stupidity, This Time Down Under

from the trademark-tuesday dept

Some of us believe that all the different nations of the world are filled with people that are mostly the same, that share the same values, and the same troubles. If only we could find some unifying issue or force that could fully bring us together, then we could finally live in a kind of Lennon-esque harmony with one another. I submit to you that perhaps stupid trademark stories revolving around "Taco Tuesdays" could well be that thing. In America, for instance, a chain called Taco John's has spent the past few years waving around the trademark the USPTO stupidly gave it on the both generic and descriptive term "Taco Tuesdays", insisting that every other business that uses it stop immediately. How this mark was ever granted, given that it describes a good offered on the day it is offered -- tacos on a tuesday -- is a question that has kept me up many a night. Despite the trouble Taco John's has caused with this, the trademark remains registered and in place.

And now it appears that Australia has its own version of this, featuring another company waving around another trademark for "Taco Tuesdays" that never should have been granted.

A stone’s throw into the city’s wild west sits Footscray’s Reverence Hotel, famed for its live music and cheap Tuesday tacos. After six years of dishing up the spicy fare, the landmark corner hotel is suddenly feeling the heat over a claim that it is infringing a trademark held by Mexican food chain Salsas Fresh Mex, which has outlets dotted across Melbourne including a site at Highpoint shopping centre. A letter from Salsas Holdings marketing manager Rebecca Woods to The Reverence Hotel demanded it stop using the phrase ”Taco Tuesday” on its website and social media accounts.

“We assume that you are unaware that Salsas is the owner of the registered trade mark TACO TUESDAY in respect to the provision of Mexican-style food and restaurant services,” it states. “The Mexican-style food offered by Salsas under that trademark has become extremely well and favourably known among members of the public in Australia, and as a result is associated with Salsas.”

I'm going to keep hammering on this until someone listens, because this trademark is not valid. Period. Paragraph. Full stop. It does not identify a source. The phrase itself is generic and common in both the restaurant industry the world over and even in homes around the world. Tuesday is for tacos and nothing about the phrase has anything to do with any individual person or business.

The folks at Footscray's had this same reaction in the most punk venue way possible.

Publican Matt Bodiam said his first reaction on opening the letter on Wednesday was amusement, but he soon realised the potential seriousness.

“I had a bit of a giggle, then [thought] I better look into it,” he said. “I can’t believe someone can trademark ‘Taco Tuesday’; it would be like trademarking ‘Happy Hour’ or ‘Tight-Arse Tuesday’, although perhaps someone has trademarked those as well.”

Actually, the "happy hour" reference is only half right. In that phrase, we have an example of the generic language tons of businesses use. Taco Tuesdays is the same in that respect, except it's also descriptive. This isn't the protection of the consuming public, the very point of trademark law, but rather the locking up of language for commercial purposes. And it's dumb.

But it also works. Salsas has enough of a legal warchest to make Footscray's fighting the good fight on this an absurd notion. It is far easier and less expensive to simply cow to the demands of the trademark bully than putting up a fight in court. Trademark bullying, in other words, works. But perhaps not without giving creative punk venue owners the last laugh.

Mr Bodiam said The Reverence would continue selling tacos on Tuesdays, but the night is now listed on its site as “Taco Sueday”.

Bravo, sir.

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Posted on Techdirt - 19 June 2018 @ 3:37pm

President Trump Directs Pentagon To Create A 'Space Force' In What Is Surely Not Any Kind Of Distraction From Crying Children

from the three-card-donnie dept

You may recall that about this time last year, the House of Representatives put together a budget that included funding for a brand new military branch dubbed the Space Force. At the time, our take is that this was always inevitable, as humanity tends to carry its war-making luggage everywhere we go and, since we go to space, we're going to have a Space Force. More surprising was the pushback from those who have a thing or two to say about military matters, such as Secretary of Defense James Mattis, who noted that setting up a new military branch was hellishly complicated, and required congressional approval.

Mattis, in a letter to Rep. Mike Turner -- an Ohio Republican leading the congressional effort against the Space Corps -- said he was opposed to adding "additional organizational and administrative tail" to the Pentagon.

"At a time when we are trying to integrate the Department's joint warfighting functions, I do not wish to add a separate service that would likely present a narrower and even parochial approach to space operations," Mattis wrote.

One can read that as government-speak for: "No, this is stupid, why are you proposing this, everything is going fine, hey, is this thing even on?" Currently, space-based operations for the military are headed up by the Air Force Space Command. There is no denying that orbital operations are critical to the success of the United States military, given all of the satellite assets currently floating around the near-inky void. There has also been no indication that the Air Force is not up to the job, given the current lack of space-based infantry skirmishes or ground (ahem) operations.

This week, however, President Trump directed the Pentagon to create his new Space Force. It would be absolutely absurd not to notice the timing of the announcement that grabbed at least some of the headline space from news organizations that would otherwise have been directed at video and audio of toddlers in cages as they wept openly for their parents. It seems the Dear Leader couldn't help but notice this timing either, even as he made his announcement.

In remarks that ranged over a variety of unrelated topics, Mr. Trump began by saying current U.S. employment levels were the best "in recorded history" and blaming current immigration problems on the Democrats, saying "we have the worst immigration laws in the entire world" and that ongoing issues could be resolved "very quickly if the Democrats come to the table."

Turning his attention to space, the president praised the National Space Council and its chairman, Vice President Mike Pence, for its work re-focusing national space policy, saying "for too many years, our dreams of exploration and discovery were really squandered by politics and bureaucracy. And we knocked that out."

"My administration is reclaiming America's heritage as the world's greatest space-faring nation," he went on. "The essence of the American character is to explore new horizons and to tame new frontiers. But our destiny, beyond the Earth, is not only a matter of national identity, but a matter of national security."

Look, space exploration is sorely in need of funding. That said, nothing about creating a new fighting force for space is going to be quick, easy, or bring about the kinds of results we could see either by funding current space exploration organizations (hey, remember NASA?) or private companies now taking up the challenge. As the Pentagon noted in its response, this foray into the final frontier is going to take a long, long time to set up.

The Pentagon's chief spokesperson Dana W. White issued a statement suggesting the process will take some time.

"We understand the President's guidance. Our Policy Board will begin working on this issue, which has implications for intelligence operations for the Air Force, Army, Marines and Navy. Working with Congress, this will be a deliberate process with a great deal of input from multiple stakeholders."

One can read that as Pentagon-speak for: "Uh, okay, but this is going to take, like, forever." Which, honestly, is probably besides the point. Whatever you might think of the current politics and immigration policy on display, there is little denying that this grand announcement came on the heels of a deluge of negative press and headlines for the President. Whatever side of the political spectrum you're on, hopefully we're all in agreement that space operations are important. If we do, then we should likewise agree that callous calls for massive new programs and full military branches being used as a distraction are an affront to that importance.

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Posted on Techdirt - 15 June 2018 @ 7:39pm

In Defense Of Ubisoft: Crowdsourcing Game Content Creation Is Actually Fun And Non-Exploitive

from the cwf+rtb dept

Crowdsourcing has obviously now been a thing for some time. Along internet timelines, in fact, crowdsourcing is now something close to a mature business practice and it's used for all manner of things, from the payment for goods created, to serving as a form of market research for new products and services, all the way up to and including getting fans involved in the creation and shaping of an end product. The video game industry was naturally an early adopter of this business model, given how well-suited the industry is to technological innovation. Here too we have seen a range of crowdsourcing efforts, from funding game creation through platforms like Kickstarter to empowering supporters to shape the development of the game.

In that last example, it was Double Fine and Tim Schafer getting gamers involved in what would otherwise be the job of the creative team behind their game. The personalities here may matter greatly, because Ubisoft has recently unveiled an attempt to further get their fans involved in the game-creation process, yet many people are up in arms over it. Let's start with what Ubisoft is attempting with its anticipated next installment in the Beyond Good & Evil franchise.

The long-awaited sequel to a 2003 Ubisoft game that was critically loved but flopped at retail, Beyond Good and Evil 2 will take place in an open universe full of strange creatures and cultures. During its E3 press conference, Ubisoft said that fans will be able to help populate that universe with their own music and artwork through a partnership with a company called HitRECord, with that company’s founder, actor-turned-entrepreneur Joseph Gordon-Levitt, appearing on stage.

The HitRECord-powered Space Monkey Program allows fans to submit ideas and works into a series of musical and visual categories like “devotional music,” “anti-hybrid propaganda,” and “anti-establishment art.” Other fans can then comment on and remix those works, which will ultimately be evaluated by HitRECord and—if they fit the game well enough—sent along to Ubisoft. Everybody who’s contributed at all to an accepted work will be paid.

If you're anything like me, your reaction to this was purely positive. Fans of Ubisoft titles and Beyond Good & Evil get to contribute to the game in a way they will recognize and be paid some amount of money for? How cool is that? Collaboration with fans on the creation of art is squarely in the realm of our CwF+RtB formula. To add some compensation to that makes this all the better. And, in my opinion, if this were anyone but Ubisoft doing this kind of thing, nobody would be pushing back on it at all. But because of Ubisoft's sketchy reputation, many are viewing this through purely cynical glasses and seeing nothing other than a company trying to avoid paying the full rate for the creation of its game.

Almost immediately after Ubisoft’s conference, critics and developers started asking questions: Why not just pay full-time, salaried developers to do this work? What happens if fans’ work doesn’t get accepted? Do they not get paid? Did they do it all for nothing?

Scott Benson, the co-creator of the indie game Night in the Woods and a vocal advocate for workers’ rights, pointed out that HitRECord’s business model seems to rely on what’s known as “spec work,” short for “speculation.” This is a common but nonetheless ethically muddy practice in creative and design fields. When you do work “on spec,” you’re producing something that a buyer might decide to pick up and then pay you for.

Great, except this isn't being done in the "creative industry" at all, but rather directly with fans of the game franchise. Were Ubisoft trying to strong-arm artists for content it would otherwise pay for up front, then, yeah, this would suck. That's not what it's doing at all, though. Instead, the company is going directly to fans and asking them, rather than coercing them, to get involved in the project in a way those fans will find meaningful. Does this have the happy coincidence of being somewhat less costly? Sure. There's no denying that. But so what? If fans of a game are able to compete with the art created by the creative industry and want to do that type of thing under this platform, where exactly is the ethical dilemma? Were Benson to have his way, fans should be denied this opportunity because... why? Because someone else might not get paid? Where is the sense in that?

There's also something to be said for HitRECord's meta-crowdsourcing experiment here and how interesting it will be to see if it can be pulled off.

“At HR, people build on each other’s ideas, and our website (and community) keeps track of how projects evolve—and how ideas influence one another,” HitRECord executive producer Jared Geller said in an email, noting that the company has paid out a total of nearly $3 million since it was founded in 2010. “So any contribution that is included in any of the songs or visuals (guitar parts, vocal stems, etc) delivered to the Beyond Good and Evil 2 dev team will get credited and paid. If your contribution isn’t used, you don’t get paid.”

So it's not just milking a fanbase for cheap labor, but allowing that fanbase to them play off of one another and build a community product, which will then be injected into the game and for which they will be paid. I mean, come on, if everyone could take their labor union hats off for just a second, they'd have to admit how cool an experiment this is. And, while HitRECord will have the ultimate decision-making authority on how compensation is divvied up between creators, it even takes feedback from multiple creators into account when making those decisions.

The one area where there might be real concern is copyright infringement.

There are other possible complications, as well, said a representative of NoSpec, an organization that advocates against the practice of spec work.

“When people who participate in spec work know that the chance of payment is slim-to-none, it invites the fastest possible turnaround, and we’ve found that spec websites (those that sell design contest listings) are rife with plagiarism,” wrote the rep in an email.

There is truth to this and Ubisoft and HitRECord have better have their shit in order if they don't want to turn this into some hellscape of accusations about plagiarism and copyright infringement. But if they can pull this off, the end result is going to be the injection of the voice of the fan directly into its game, which is about all we could hope for coming from a content producer.

I'll end this with a thought experiment. Imagine for a moment if I had written this same post, except I did a find/replace for "Ubisoft" and replaced it with "Sole game creator." Does anyone really think the same level of outrage would exist? If not, then this isn't a moral question at all, but a monetary one. And if that's the case, it should go without saying that Ubisoft's reputation shouldn't prevent it from being able to try something good and cool with its fans.

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