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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 - 5 October 2015 @ 11:16pm

Train Simulator 2016 And How We've Reached The Crest Of The Dumb DLC Wave

from the dlc-all-that-money dept

We only occasionally talk about video game DLC, or downloadable content, here at Techdirt. When digital distribution became a thing some years back, game makers came up with DLC as a way to achieve several goals: extend the shelf-life of games, make games more saleable through the promise of extra content, and, of course, make more money. I remember when the wave of DLC started and the general negative reaction brought by the gaming public to it. Most concerns centered around game makers charging for features that once were included in the games for the original asking price. Some makers legitimized these concerns through their actions, but others did wonderful things with DLC that gamers would not wish to be without. But, as Hunter S. Thompson once imagined he could see the crest of hippie culture along the Rocky Mountains before its eventual recession, I too can see the crest of DLC greed in our time in the insanity of Train Simulator 2016's laughable DLC offerings.

This all becomes evident as Kotaku's Alex Walker went on a quest to find the most ridiculous DLC costs for games on the market today.

My first thought was the Dynasty Warriors series. They, like many anime brawlers, have an absurd amount of costume and armour packages that are far more expensive than they should be. But then I came across Train Simulator 2016: Steam Edition. It’s US$45, which is fairly standard for niche titles with a hardcore fanbase. Dovetail Games were even generous enough to have a special on the DLC. And then I saw how much DLC there was.

As you can see at the bottom of the image, there are 230 available DLC options for sale. Next to it is an option to see them all. Walker saw them all. The results, and keep in mind that most of these are on sale for nearly half off, are hilariously expensive.

Yes, that's over $3,000 if you were to buy all of the game's DLC when most of it is on sale. None of this is to say, of course, that a game maker can't charge what they like for their game, their DLC, their box art, their communications, their support, or anything else. They most certainly can. But what this should herald for most of us is the ultimate example of DLC done wrong. Whatever costs and effort might go into making a game, the end result shouldn't be the cost of a used car in payment for the full content. There are ways to DLC right and it's not evil to charge for great content, but this kind of thing we see above is so far removed from how games were charged for only a few years ago that it's plainly obvious that something ain't right here.

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Posted on Techdirt - 2 October 2015 @ 2:58pm

Zee Germans Are Coming: German Copyright Troll Announces Plans For Anti-Piracy Surge In The UK

from the invasion-of-the-privacy-snatchers dept

I'll give the entertainment and the copyright troll industry this: they sure know how to talk a big game. After the settlement prospecting done by copyright trolls in the UK died down somewhat these past few years, it appears the war is back on. TorrentFreak has the story of one German copyright troll, Maverick Eye, announcing that it is going to step up its efforts in the UK in the coming months.

Framed as one of the largest anti-piracy campaigns in history, Maverick Eye says it teamed up with law firm Hatton & Berkeley and other key players to launch a new wave of settlement demands.

“Since July this year, Hatton & Berkeley and Maverick Eye have been busy working with producers, lawyers, key industry figures, investors, partners, and supporters to develop a program to protect the industry and defend the UK cinema against rampant piracy online,” Maverick Eye says. "The entertainment industry can expect even more from these experts as they continue the fight against piracy in the UK.”
Funny that Maverick Eye should be putting so much weight behind "experts." You see, a review on Maverick Eye's website of the films it is working on protecting includes some familiar names, such as The Cobbler, The Expendables, and Dallas Buyer's Club. If these sound familiar, it's because they were also all films working with German company Guardaley, whose website lists many of the same movie franchises, and Malibu Media, whose ongoing game of hide-the-ball as to who was representing what and which company was actually a shell of company of whom we detailed last year. It all comes back to this German copyright troll traversing the globe to shuttle out settlement notices to individuals it deems have infringed on these movies in an effort to get them to pay up or face time in court. What makes the trotting out of experts hilarious is Guardaley's own internal documents indicate that the experts it relies on are so shaky that they have to hope that courts don't bother to question their qualifications.

Add to that this group's failure to answer as to exactly what technology it is using to identify supposed infringers, and it seems reasonable to expect any kind of court proceedings to turn into the monumental shitshow that Malibu Media made famous. Mixed in with accusations of experts being paid contingency fees based on suit outcomes and the ongoing games this parent group's child-companies engaged in as to who worked where and for whom, and this is expert level shadiness we have here.

And this is the group that entertainment companies want championing their product in public and in court? These are the people announcing a new offensive surge in the UK? This practice of identifying "infringers" using "software" that nobody is sure actually "works" and then shaking down victims is still being allowed to continue? Even though it never actually seems to work? C'mon, entertainment industry. At this point, it's worth at least trying some new ways to do business rather than just putting the mistake track on repeat.

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Posted on Techdirt - 2 October 2015 @ 11:36am

Predictable: The Fragmented Media Will Give Us All Our Post-Oregon-Shooting Outrage Blankets

from the two-minutes-hate dept

As you no doubt have heard by now, and as we already tangentially discussed earlier, there has been yet another mass shooting in America. This time, it came to Oregon, where a single gunmen made his way into a community college and managed to murder nine innocent people, injure others, before his own life was extinguished, either by his own hand or by those of law enforcement. And, as we wake up the next morning, anyone with any interest in civil society and culture grapples with the story. President Obama remarked that these stories have become routine, seeming to suggest that everyone has become numb to these events, accepting them as part of the American life. He's wrong about that. Desperately and importantly wrong. Instead, the truth is that the public is the opposite of numb. The public is angry. Unfortunately, because of the way that a fragmented and ideologically aligned media landscape has emerged in the past two decades or so, we all end up angry about different things, with our outrage stoked and guided in avenues that put us at odds with those that have had their outrage stoked and guided in entirely different avenues.

Predicting these avenues is trivially easy. A cursory glance at the story of a mass shooting and the media reaction to it provides everything required to act as a Nostradamus for the outrage outlets we will see. Over the next few days, we'll hear stories about the gunmen being from a broken family, with traditional family breakdown serving as a punching bag for remorse. Some outlets will discuss the shooter's video game hobby. Or his interest in horror movies and novels. Some outlets will focus on his access to guns, while others will focus on his reported targeting of Christians and religion. Still others will scream "false flag!", sadly undermining the very real lives lost and lives shattered through injury and terror. Too many of us, a majority of us, will ingest the news of the shooting in the medium and outlets of our choice, chosen specifically because that medium and outlet feeds us the meal we want the way we want it. Cable news started this, of course, planting flags of partisanship in a realm once at least thought to be dominated by facts. Spin-masters will work their magic, taking dead bodies and boldly morphing them into causes and outrage. Meanwhile, the shooter gets exactly what these shooters want: fame. Rather than employing the seriously genius "some asshole initiative" by refusing to name these shooters or focus on them in any way, we'll do the opposite and turn on the spotlights. We will be distracted.

Put another way: we will retreat. Retreat away from the horror of death and into the comforting arms of the outrage that lets us feel like it all means something else to us. Here's what you'll see. A discussion about guns will arise before quickly falling away and nothing will happen. A conversation about 4chan, and other internet sites, and whether or not more needs to be done to police the internet looking for potential killers will be sparked, but nothing will happen. Some will lament the decline and/or targeting of religion in America, wondering aloud, stupidly, if too much religion or not enough of it is responsible for the killings, but nothing will happen. Violent media, be it games, movies, or novels will be trotted out as sacrificial lambs for our anger, but nothing will happen. From the fringe will be another crowd, bleating that none of this actually happened and that it's all fake news and actors playing out a game of gun-snatching that never seems to actually materialize, because nothing ever happens.

Why? Because we retreat to fragmented media and mediums that focus our outrage onto the target of our choice. Facts matter little if at all, as one can tell by the speed with which reports and reporters begin funneling our outrage. This is a problem, one started by mass media and continued, unfortunately, on the internet. There's nothing wrong with choice, of course, when it comes to us choosing our media outlets. The problem as I see it is when the choices become fragmented by political or ideological lines. The fact that we can name a media outlet and guess with an unfortunate amount of accuracy exactly what spin will be put on the reporting of a mass shooting is a problem. The answer to that problem is, as usual, the dropping of ideology, of political dogma, of the retreat. So, as you read the news about this reporting in the coming weeks, notice the rush to find factors of blame and reject them.

The news is that this was a tragedy. The sad news isn't just that we're not going to do anything about it, but rather that we're not going to do anything about it even though we all have a cause in it.

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Posted on Techdirt - 30 September 2015 @ 11:16pm

EU Orders Makers Of DieselStormers To Change Name Because Diesel Clothing Trademarked Diesel For Everything

from the you-got-game? dept

In trademark disputes and their resolutions, it's not often that I see a pure headscratcher. That is to say, I rarely see a ruling on a trademark dispute and find myself at a loss for all explanation. This is, however, one of those cases. The dispute is between Black Forest Games, makers of a game entitled DieselStormers and Diesel the company, which makes clothing. The problem arose over a year ago, it seems, when Diesel reached out to Black Forest Games about the title of the game, expressing concern that it was a trademark violation of the Diesel brand.

The dispute began in July 2014 when Black Forest Games, maker of Giana Sisters: Twisted Dreams, received a trademark claim from Diesel over the name of its co-op arena brawler, Dieselstormers, which was funded through Kickstarter and released to Steam Early Access in July 2014. The Italian clothing manufacturer had claimed there would be a "likelihood of confusion" if Dieselstormers received its own trademark. Diesel's trademark covers things outside of clothes, such as toothpaste, walking sticks, Christmas tree decorations - and games.

"In all probability an understanding will be reached as Black Forest have no intent to create clothing under the Dieselstormers brand," the developer stated at the time, before adding, "the 'Diesel' part of Dieselstormers refers to the liquid fuel type of the same name and is not a parody of the fashion brand."
Turns out no understanding was ever reached, however, and Diesel ended up taking the dispute before the EU Office for the Harmonization in the Internal Market (OHIM). At issue was Diesel's registration of their trademark "Diesel," including in the marketplace for games. The reason why the developer kept referring back to clothing, including in the quote above, is because Diesel doesn't make games. Like, at all. And Black Forest Games doesn't make clothing using the "Diesel" mark. In other words, for the OHIM, there was no internal market to harmonize, because there was no conflict. If anything, Diesel had registered a trademark for a market it wasn't participating in, which is typically grounds for the loss of the trademark. Nothing about this seemed to make sense.

Unfortunately, the OHIM is apparently in possession of logic that I don't have access to, because it is forcing Black Forest Games to change the name of DieselStormers to something else.
Now, over a year later, the Office for the Harmonization in the Internal Market (OHIM), which rules on trademark matters in Europe, has decided in Diesel's favour - and forced Black Forest to come up with a new name.

"This decision has caught us with our pants down," said Black Forest boss Adrian Goersch. "We are quite surprised that our trademark application has been formally denied. We are no multinational corporation, we cannot fight this decision, even though, frankly, it is a disaster with indie marketing as difficult as it is today. But the history of this game and our company as a whole has been marked with tough challenges and we will manage to overcome this one as well. First of all, we will make sure everyone will be able to keep playing the game, then we'll come back with a new name."
And why? Because a clothing company registered a trademark in a marketplace it isn't participating in and then had the gall to push around a small game developer over it. Whatever you might think the purpose of trademark is or should be today, it sure isn't this.

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Posted on Techdirt - 30 September 2015 @ 2:33pm

Judge Tosses Defamation Case Of The Sleepy Yankees Fan

from the zzzzzzzzz dept

Last year, we discussed the silly defamation case brought by Andrew Rector, baseball fan(?), that ESPN's cameras showed to be sleeping(!) at a Red Sox v. Yankees game. The commentators on ESPN had some fun at Andrew's expense. Quite mild and tame fun, it should be noted. But several websites picked up where they left off, and some comments left on those websites were less than friendly to Rector. For this, Rector filed a $10 million defamation suit against ESPN and the commentators, John Kruk and Dan Shulman. It looked bad on the basis of both the law, as well as the ability of whoever filed the suit to use a spellchecker and basic logic.

And now the courts have agreed, with a NYC judge dismissing the lawsuit.

While Rector’s lawsuit alleged that he was subjected to an “unending verbal crusade” by the ESPN duo, the assorted putdowns referred to in the complaint actually appeared in the comment sections of online articles about Rector nodding off during the game. Two comments cited in the lawsuit referred to Rector as a “fatty cow that needs two seats” and a “confused disgusted and socially bankrupt individual.”

In a decision issued last month, Judge Julia Rodriguez ruled that Shulman and Kruk made none of the nasty comments attributed to them in Rector’s complaint, adding that “none of the comments actually made by the announcers” was defamatory or false. Rodriguez added that, “At worst, the announcers’ comments might be considered to be loose, figurative or hyperbolic statements which are not actionable.”
Which, you know, duh. The idea that a person might snooze in a public venue where a telecast is occurring and then get upset because third parties saw footage of him sleeping is a logical bungle to begin with, but adding the money-grab feel of a multi-million dollar defamation suit against people who never said the things the suer is upset about represents such twisted brain-pretzels that it's actually hard for me to think about. Not every offense is actionable, after all, and the civil courts are not the place to rectify embarrassment in this way. The nature of the claim in Rector's original filing probably didn't help his cause, either.
Rector, a used car salesman, claimed in a court affidavit filed earlier this year that the ESPN broadcast--which he termed “bullying”--caused “enormous grief and embarrassment and affected my ability to work and go about my daily activity.” He added that, “people have avoided dealing with me. Insurance companies now consider me a high risk.”
And he thought the best way to move past all of this supposed damage was to ensure his name remained in the spotlight with a lawsuit? C'mon, son.

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Posted on Techdirt - 30 September 2015 @ 9:30am

Man Gets $35k Settlement After Arrest For Posting 'Fuck The Fucking Cops' On Department Facebook Page

from the 1A-ftw dept

It's becoming quite a period of time for the profane when it comes to interacting with law enforcement, apparently. We had just recently discussed one man's victory in federal court over a town that didn't appreciate him writing "Fuck your shitty town bitches" on a speeding ticket he'd mailed in. Well, back in 2012, another delightful human, Thomas Smith, was apparently arrested for being an ass on the Arena, Wisconsin, Facebook page.

In July 2012, the Village of Arena in Wisconsin posted a note on its Facebook page announcing a slew of arrests. Smith then posted "Fuck ths fucking cops they ant shit but fucking racist basturds an fucking all of y'all who is racist," as well as "Fuck them nigers bitchs wat you got on us not a dam thing so fuck off dicks." He was arrested for disorderly conduct and unlawful use of a computer and telephone. He was originally convicted by a local jury, but that decision was overturned by the Wisconsin Court of Appeals, which ruled Smith's First Amendment rights were violated.
Um, yeah, memo to the police in Arena: being a jerk to police, calling them names, and using deplorable language is no more a violation of the law than blatantly mispelling the insults themselves and using the kind of grammar that I actually kind of wish would get people thrown in the clink. Likely the jury was presented with what Smith had written and decided he was a jerk and ruled against him. That doesn't change the fact that the arrest and conviction were both unconstitutional, of course. And, after Smith and his attorney sued the village, the village agreed, settling with Smith for $35,000.
Smith and his attorney, Tom Aquino, sued the village for an unspecified amount. Wednesday, the village settled with him, according to Aquino.

"We have always believed that the defendant’s liability was clear. Federal and state courts have routinely held that the right to free speech is not limited to polite speech alone," Aquino wrote in a blog post. "In our country, we are entitled to criticize our government with passion. The use of some four-letter words in the course of doing so is never a crime."
It can't be easy to be a good cop and have to endure a profane tirade on a public town Facebook page, but that doesn't excuse the violation of basic civil rights in retaliation. And Smith's speech, while lacking poetry and panache, is certainly protected. It's about time law enforcement realizes that profanity is still free speech so that they can stop costing municipalities this kind of settlement money.

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Posted on Techdirt - 30 September 2015 @ 3:14am

Zuckerberg Tells Angela Merkel Facebook Is On The Hate Speech Censorship Case

from the dislike dept

A brief review of the available record shows that Facebook and Germany have always had something of a contentious relationship. Past examples of this have included Germany trying to influence Facebook's really dumb "real name" policy, Germany trying to get Facebook to drop its facial recognition database, and even Germany attempting to outlaw the "Like" button. The context in most of these instances is a German government perhaps still rather touchy with a sordid, if decades-old, history and its overcorrection on matters of privacy and speech. The latest is no different.

At a recent UN summit, Mark Zuckerberg apparently had a discussion with German Chancellor Angela Merkel that Facebook will start getting involved in policing racism and hate speech on the social media network.

"I think we have to work on that," Zuckerberg told Merkel during their meeting on Saturday on the fringe of the United Nations Sustainable Development Summit in New York.

Facebook has been much criticized in Germany for not doing more to shut down hate speech on its network during the refugee crisis, with Justice Minister Heiko Maas a leading voice calling for better moderation on the site. At a meeting with Maas earlier in September, when the minister demanded faster procedures to get hate comments removed, Facebook agreed to set up a working group to look at the problem.
It's the age-old question on matters of free speech: how do we handle speech the public generally finds unacceptable? And, to be fair, it's not the easiest question to discuss, because free speech advocates find themselves within the ranks of some truly horrible people who say some truly horrible things. Racism and bigotry is, of course, not acceptable as a matter of morality and public discourse. But should it be hidden by corporate interests at the request of the government of a free people?

No, it should not. And, when we slide emotion to the side, it's quite easy to see why not. First, on matters of comments that involve threats or calls to violence, we already have laws on the books (as I assume Germany does as well) to deal with that. Indeed, rather than disappearing the comments from social media, law enforcement would likely want to have those comments on hand should a crime for incitement or menacing have been committed. For charges of racism and hate speech, on the other hand, I would argue that the need for exposure of the bigot outweighs any, if there is any, harm done by the speech. Put another way: if there are racist assbags in the world, do you want to allow them to identify themselves, or shall we allow social media sites to put up a veil so that we can all pretend that everything is right with the world?

Zuckerberg is allowed to do with Facebook as the site's corporate interests please, but as an American leading a company that can only continue to benefit the world through the free exchange of ideas if the site rests on the principles of free speech, I would hope he might be cautious in what promises he might make that violate those principles.

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Posted on Techdirt - 28 September 2015 @ 11:13pm

Gosling's Rum Forgoes Free Promotion Of Famous Cocktail In Favor Of Trademark

from the rummy dept

It's a common refrain whenever we discuss trademark disputes that appear to be barely-necessary, if necessary at all: companies must protect their trademarks. That's not actually true, of course. What a company must do, actually, assuming it wants to be good at company-ing, is it must maximize its revenue, profits, and exposure and be as successful as it can be. If that means protecting its trademark interests in a valid way, so be it. But that isn't always necessarily the case.

Take the recent news about Gosling's Rum and its apparent attempt to enforce its questionable trademark over the drink-name "Dark n' Stormy." Now, I've known about dark and stormies for quite some time, having honeymooned in the Caribbean and having some close friends that are Cuban. Based on my prior knowledge, a dark and stormy is a cocktail of ginger beer mixed with black rum. It's absolutely delicious, by the way. Turns out, a true dark and stormy is made with Gosling rum, as the originator of the term were Royal Naval officers in Bermuda experimenting with Gosling Black Rum in the mid-1800s.

By 1850 Gosling’s Black Seal was a hot commodity. The liquor piqued the interest of nearby Royal Naval Officers, who tried putting it in the ginger beer they’d been brewing, to help with seasickness. The combination was delicious. The dark coloring, not quite as appealing, lead a sailor to famously remark that it was: “the color of a cloud only a fool or a dead man would sail under.” The Dark n’ Stormy was born.
What sounds like a legend has actually been well enough proven that the validation of the story factored into Gosling having a trademark approved on the term "Dark 'n Stormy." Now, I find it questionable that the name of a cocktail, particularly one with at least something of a descriptive nature, ought to deserve trademark protection. There's something different between "Dark 'n Stormy" and "Black and Tan", but is it enough difference to warrant a trademark when the latter doesn't get one? There's a reason cocktail names rarely get trademark protection. As my anecdote above demonstrates, cocktail mixers frequently substitute alcohol labels when making drinks. A rum and coke might be made with any number of rums.

But even if we put the validity of the mark aside for a moment, is the best business decision for Gosling really to go legal on anyone else who dares use the term "dark 'n stormy?"
In an 18-page complaint filed to federal court, E. Malcolm Gosling Jr. and his brother allege that the liquor conglomerate Pernod Ricard has committed federal trademark infringement. Their case stems from a recipe Pernod Ricard posted for a Dark n’ Stormy in 2014 on its website. The drink calls for ginger beer, just like Gosling’s original, but suggests a different main ingredient: Malibu Island Spiced Rum.

The lawsuit claims that Gosling not only invented the cocktail, but is the driving force behind its popularity today. The company owns not one trademark on the name, but five, extending to clothing, kits containing rum and ginger beer, “bar services,” and the premixed version of the drink.
And, yet, even as the complaint goes on to lament on all the time and resources Gosling expends promoting Dark 'n Stormies, nobody could seriously claim that the cocktail is any kind of household name. And Gosling has had decades to promote it. What if Gosling didn't go after this trademark violation? What if, instead, it allowed others to use the Dark 'n Stormy cocktail name? What if, by allowing the use, Gosling lost the exclusive rights to the mark entirely and the cocktail then was free to be promoted and pushed by any number of liquor brands? Or ginger beer brands? Or bars? And what if, after all of that promotion Dark 'n Stormies got without Gosling having to spend a dime or time to generate, what if then it capitalized on the exposure as the authentic rum, the only authentic rum, of a true Dark 'n Stormy? What if by relinquishing the control afforded by trademark, the company was actually positioned to make more money by selling more black rum, being the one true rum of a real Dark 'n Stormy?

Gee, if only we had some example to point to that demonstrated that sometimes forgoing the trademark resulted in a massive popularity boost.

Yes, the hot sauce whose creator when out of his way to not trademark anything is now more popular than nearly every other condiment brand that exists anywhere. Yes, David Tran is entirely too busy leaping into the swimming pool filled with money that my imagination insists that he has to give two damns about trademark law. Revenue trumps control, always. And perhaps if Gosling were willing to loosen its grip it might find itself too busy counting its money to remember why it bothered with this trademark stuff to begin with.

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Posted on Techdirt - 25 September 2015 @ 2:48pm

Workplace Commission In Australia: Unfriending A Co-Worker Is A Factor In Bullying Case

from the dislike dept

Workplace rules: who can understand them, am I right? I mean, they give me a computer at work and I'm not supposed to use it to find the most hilarious NSFW pictures possible? They give me co-workers but I'm not allowed to question them about exactly where they fit into the Illuminati conspiracy that may or may not be going on and why are you running away? My workplace encourages me to use social media in a responsible way, but I'm not allowed to unfriend people I don't get along with?

No, no I'm not. At least, if I worked in Australia I wouldn't be allowed to, according to the Australian government's Fair Work Commission, which recently claimed that de-friending a co-worker is a form of emotional immaturity in the workplace.

Rachael Roberts, a Launceston real estate agent, complained to the commission that she was bullied by her colleague Lisa Bird, leaving her with depression and anxiety. The Facebook incident took place in January this year, after Ms Bird allegedly called Ms Roberts a "naughty little schoolgirl running to the teacher" during an aggressive meeting in the tea room.

Ms Roberts told the commission she left the office crying and when she later checked Facebook to see if Ms Bird has commented on Facebook about the incident, she found that Ms Bird had deleted her as a Facebook friend. Fair Work Commission deputy president Nicole Wells said in her decision that the unfriending was unreasonable behaviour and that Ms Roberts had been bullied at work.
Can you hear that commotion off in the distance? That's a hundred-million workplace trolls throughout the world rejoicing as though it were troll-Christmas, because a ruling like this is not only nonsensical, but it's also a mandate that the trolled must continue to be trolled in the form of Facebook. Yes, upon review of the incidents that Roberts complained about, the ruling seems to indicate that Bird, whatever her feelings and interactions with Roberts might be, must continue to have her digital space invaded against her will. Even if Roberts is correct that Bird has acted like something of a jerk, and judging from the commission's other findings that seems to be the case, what business is it of government to mandate who a Facebook user must or must not continue to connect with both in and out of the workplace? Put more succinctly: what the ever-loving hell is going on here?

Well, here to provide a non-explanation is a lawyer who is about to not make sense.
Josh Bornstein, from Maurice Blackburn lawyers, argues the Facebook unfriending is bullying but only because it happened in the context of several other incidents.

"The Fair Work Commission didn't find that unfriending someone on Facebook constitutes workplace bullying," he said. "What the Fair Work Commission did find is that a pattern of unreasonable behaviour, hostile behaviour, belittling behaviour over about a two-year period, which featured a range of different behaviours including berating, excluding and so on, constituted a workplace bullying.
I love this kind of argument. Acting hostile towards the victim? That's bullying. Belittling them? That's a-bullying, too. Berating them and otherwise interacting with them in a negative way? Bullying. Cutting all of that off by ceasing communication with the person? Well screw you because that's bullying, too. I do believe this is the first time I've ever heard an argument for any kind of harrassment stemming from non-communication between two parties. The commission went so far as to decide that Mrs. Bird's defriending was emotional immaturity on the part of Mrs. Bird, and saying so in the context of discussing Mrs. Bird being a bully.
[89] The evidence of Ms Roberts as to Mrs Bird defriending her on Facebook immediately after the incident is supported by a contemporaneous text message between Ms Roberts and Mr Bird. 64 It was not refute by Mrs Bird in evidence. This action by Mrs Bird evinces a lack of emotional maturity and is indicative of unreasonable behaviour, the likes of which I have already made findings on. The ‘school girl’ comment, even accepting of Mrs Bird’s version of events, which I am not, is evidence of an inappropriate dealing with Ms Roberts which was provocative and disobliging. I am of the view that Mrs Bird took the first opportunity to draw a line under the relationship with Ms Roberts on 29 January 2015, when she removed her as a friend on Facebook as she did not like Ms Roberts and would prefer not to have to deal with her. I am satisfied that the evidence of Ms Roberts, as to the incident on 29 January 2015, is to be preferred and that the allegation of unreasonable behaviour by Mrs Bird in Allegation 17 is made out.
Experts about bullying appear to agree that this is an overreach by the commission.
Bullying expert Oscar Yildiz said the Fair Work Commission has set a dangerous precedent, and Ms Bird's actions on social media did not constitute a personal attack.

"In this case, what is the future threat? That this person has unfriended someone on Facebook? Well, big deal," Mr Yildiz said. "As far as I'm concerned that doesn't constitute bullying and it shouldn't. If it does, what the commission has done here is set precedent."
Of course it doesn't. If anyone in any part of their lives has a negative interaction with a person, it's a perfectly natural thing to un-friend them from social media. Hell, thousands of personal relationships take this course every single day. Government stepping in to decide who a person may or may not keep in their social media circles is an overreach of astounding proportions.

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Posted on Techdirt - 25 September 2015 @ 1:49pm

Hasbro Spent Time, Money, Lawyers' Attention To Barely Make A Difference Over My Little Pony Fan Game

from the pony-up dept

Several years ago, we wrote about a fan game that had been shut down by Hasbro because it incorporated My Little Pony intellectual property. Yes, an expression of fandom was bullied out of existence by Hasbro. The argument trotted out by those in support of the company was the same argument that's always trotted out in these instances: the company had to shut the game down, or else risk losing its trademark protections through non-enforcement of its rights. That's not actually true, of course. There were many smart business routes to go for Hasbro, including offering a low-cost license to the gamemakers to allow the project to continue. Hell, we've actually seen instances in which Hasbro has chosen to enable fans to do some things with MLP characters, such as these 3D printing capabilities. But Hasbro chose to be the bully. And how'd that turn out?

Well, the company essentially might as well have done nothing as far as the end results go. Yes, the fan game is back, albeit with a barely different name, fractionally altered game characters, and with the collective understanding by everyone looking at it that this was supposed to be My Little Pony in a fighting game but now isn't because trademark. What was Fighting is Magic has become Them's Fightin' Herds and it's every bit as insane as it sounds. Oh, and they actually got someone who has worked on MLP properties to boot.

Them’s Fightin’ Herds is a 2D PC (Windows) fighting game with adorable animals in an original universe designed by Lauren Faust (producer and developer for "My Little Pony: Friendship is Magic"; creator, director and developer for "Super Best Friends Forever"). It is the spiritual successor to “Fighting is Magic”, with improved gameplay mechanics and graphics, an entirely new (and awesome!) dynamic music system, a graphic lobby, and a whole bunch of new features.

So, let's review. A group of My Little Pony fans created a fan fighting game using the Hasbro property. Hasbro, rather than spending ten seconds looking for an amicable route that would protect its interests while allowing this expression of fandom to continue, instead decided to sic the lawyers on its own fans. Those fans complied and took the game down...only to slightly rework it to avoid the legal issues and are now releasing the game pending its crowdfunding campaign, which has managed to generate over $100k of its $436k goal in one day, as of the time of this writing. The game is blatantly similar to the original MLP game, save for the changes made to avoid Hasbro's interference. And it looks like the team has a good chance of cashing out in a major way.

So, the legal route got us all to a barely different place than we would have all been three years ago. How much time and money did Hasbro spend on this? And, whatever that amount was, was it worth it just to get us to what could have been passed off as a possible example of what the many-worlds theory would look like in practice? A barely different adjacent reality that is nearly identical to our own, save for a few ultimately meaningless differences? And, the better question, why didn't Hasbro learn this lesson the first time, when its legal action against Scrabulous resulted in the exact same outcome?

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Posted on Techdirt - 25 September 2015 @ 3:15am

Mad Max Fury Road Re-Edit Taken Down Because Of Course It Was

from the copyright-road dept

As I was poking around the interwebz yesterday morning, I came across an interesting project one fan of Mad Max: Fury Road had made. To preface this, if you haven't seen the movie, shame on you and all of your ancestors. It's two hours of mind-blowing nonsense wrapped up in an action film that appears to be attempting to be the definitive action film moving forward. That said, director George Miller has also made some comments about how he would have preferred to have the film edited in black and white, with limited to no dialogue and the musical score taking center stage.

Well, one fan went ahead and worked to produce Miller's vision. The resulting movie was strikingly different and resulted in a very different experience compared with watching the movie. If nothing else, it was a wonderful example of the power of dialogue, editing, musical scores, color and sound. The person responsible for the edited film put it this way.

George Miller has said that the best version of his film is in black and white, with no dialogue. BLACK & CHROME is an attempt to realize Miller’s alternate vision. The cinematography, the editing, the sound design, and the score, are now represented in a completely new experience.

I do not own the rights to this video. All rights belong to its rightful owner/owners. No copyright infringement intended. This is merely an exercise and study of the art of filmmaking.
But before you go rushing to check out this awesomeness for yourself by clicking the link above, you should know that this is what will greet you.
Yes, in an outcome that I predicted immediately after I shared the fan project with the rest of my Techdirt compadres, it appears the video has been taken down over copyright issues. And that's dumb on a variety of different levels. First, the takedown itself wasn't necessary. Nothing about Black and Chrome competed with Fury Road. The entire point of the fan project was to show just how different small changes could make the overall experience. Those experiences were unique enough to be non-overlapping from the film viewer's perspective. This is just a control power move by whoever made it.

But I'm not entirely certain fair use shouldn't come into play, as well. As a matter of art, the project is undeniably transformative. Certainly there is little effect on the original work to consider, save perhaps for an increased likelihood that others will want to see the original after seeing the fan-edit. That said, a significant amount of the original work is used to make the derivative, so I'm not sure it goes far enough for fair use. Regardless, the creator of the fan-edit appears to be taking the takedown well.
Thank you for liking, sharing, and watching BLACK & CHROME. This is it for now. Your response has truly shown what the joy of movies is about. Hopefully, the right person(s) will have WITNESSED this and we can look forward to an official version of Mad Max: Fury Road in black and white. The film has lived, and has died, but can it live again?
It's just too bad the film wasn't allowed to become a fun bit of experience for Mad Max fans everywhere.

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Posted on Techdirt - 24 September 2015 @ 3:48pm

Marilyn Monroe Estate Trying To Use Trademark To Enforce Publicity Rights Court Said It Doesn't Have

from the any-IP-will-do dept

As you may or may not recall, way back in the distant past of 2012, we discussed a somewhat important court ruling over publicity rights. The case concerned the estate of Marilyn Monroe, America's most famous long-dead Presidential-birthday crooner, and AVELA, a company that specializes in producing nostalgia merchandise. At issue were consumer products AVELA had affixed with images of Monroe and a then-recent change in California law that applied publicity rights to dead celebrities that had lived in the state at the time of their death. The Monroe Estate, which had long argued that Monroe did not live in California in order to evade paying the estate tax, suddenly reversed course and claimed California as Monroe's home afterall. The court saw through this and ruled that posthumous publicity rights didn't apply to Monroe.

But because the kind of people looking to bank off of the likeness of a relative who died five decades previously aren't the kind of people likely to give up on the endeavor simply because justice isn't on their side, the Monroe Estate is back, attacking the same AVELA company for the same perceived infractions, except now they're making their claims under the auspices of trademark law.

The Monroe Estate is now in court against AVELA, a company that specializes in nostalgia merchandise, and is asserting that goods featuring Monroe are a violation of trademarks. In a motion to dismiss, AVELA argued that the trademark claims are "a thinly veiled attempt to assert a right that does not exist — a right of publicity in Marilyn Monroe.”

In her opinion on Friday, U.S. District Judge Katherine Polk Failla spells out the difference between publicity rights and trademarks. "The key distinction between a right of publicity and a false endorsement claim is that the latter requires a showing of consumer confusion," she writes. Shrugging off other objections including the implausibility of the Monroe Estate's ownership and the viability of a false endorsement claim on behalf of a deceased celebrity, the judge allows the lawsuit to proceed.
And so, with the judge's ruling, there will now be a court hearing over whether the public might be confused that a dead pinup model and actress may have zombie-endorsed some coffee mugs. Ain't America grand? There's quite a hill to climb for the Monroe Estate to demonstrate any kind of likelihood in customer confusion, as the death of Marilyn Monroe is kind of well-known. It ought also enter into the equation whether or not people even consider the idea of an endorsement when buying a trinket emblazoned with a historical figure's likeness. Past court cases are unlikely to help either.
Of course, the Monroe Estate still has to win on the merits and this might not be clear cut. For instance, the opinion mentions a prior case where Fred Astaire’s widow sued over the “Fred and Adele Astaire Awards" and failed because the plaintiff was unable to show “that consumers will be deceived into believing that the late Fred Astaire endorsed defendants’ awards."
While this case shouldn't take long to adjudicate if judged on the merits, what is clear is that this kind of harrassment legal action whereby one party loses a decision and simply decides to employ another form of intellectual property on the same grounds should be slapped around by the courts. IP law isn't done by shotgun blast, after all. Or, at least, it isn't by those with an ounce of integrity.

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Posted on Techdirt - 24 September 2015 @ 2:32pm

UK Copyright Group Plans Heavy Anti-Piracy Measures For Bond Film Because Of How Successful It Will Be

from the wut? dept

FACT, the UK's anti-piracy group that has long waged war on cammers and occassionally likes to cosplay as law enforcement officers, has built quite a reputation for itself throughout the years. That said, as I find with most of these copyright and entertainment groups, I just can't seem to make sense of their lexicon. Only recently, FACT has made it publicly known that it is upping its battle against in-theater cameras that might record the upcoming Bond film, Spectre.

Due to the national and international importance of Bond’s latest outing, FACT have issued a somewhat unusual proactive anti-piracy statement, presumably to deter would-be pirates from leaking the movie.

“James Bond is a big risk and we will be working with cinema operators and the distributors making sure we will keep that as tight as possible. We really don’t want to see that recorded,” says FACT director general Kieron Sharp. “The bigger the film and the more anticipated it is, the higher risk it is. We have staff on extra alert for that. They are on alert, particularly with the bigger films like James Bond, to really drill down to who is in the auditorium and who might possibly be recording.”
Except that's almost never the case. Risk -- assuming that FACT means financial risk at the hands of piracy -- is almost never really a factor in the AAA, box-office busting films. In fact, it's quite easy to draw a correlation between the box office success of a film and the levels to which it's pirated. Why? Well, because of the not complicated reason that good movies are good and people, all people, want to see good movies. Paying customers want to see good movies, as do those willing to pirate. Piracy doesn't necessarily make films successful, but it sure doesn't keep the massive releases from being successful, either. And it seems everyone kind of knows this.
While FACT are always keen to deter pirates, why the special fuss over Bond? The profile of the movie and its commercial importance are obviously key factors since Spectre is likely to be one of the biggest box-office hits this year.
So FACT is ramping up the war on piracy because it knows that the film is going to be successful? How does that make even the tiniest bit of sense? Now, as for the real reason the industry is so concerned, it's because that same industry is going out of its way to make piracy a natural remedy for its own stupid release windows.
The real surprise here is that UK pirates are being given almost two weeks to record Spectre and begin online distribution before it hits cinemas in the United States and the rest of the world on October 6. That probably goes a long way to explaining why FACT are being forced to implement extraordinary security measures – a U.S. pre-release is exactly what the anti-piracy group is trying to avoid.

But why take the chance that someone slips through the net? Hollywood knows that these windows fuel ‘camming’ yet MGM and Columbia are apparently prepared to risk “the most damaging form of piracy” by leaving the entire world dangling for 12 days while potentially millions of illicit copies of Spectre float around the Internet.
And, make no mistake, those illicit copies will certainly be available. In other words, the industry was faced with two choices to deter piracy: it could valiantly fail to keep any camming from happening and being released on the internet or it could adjust to the reality of the market and release the film worldwide at the same time as the UK release. It chose the former, because apparently playing some kind of spy game to police a spy movie while not accomplishing anything is more fun than actually barely-altering a business model to give customers what they want.

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Posted on Techdirt - 18 September 2015 @ 1:54pm

Why Backdoors Always Suck: The TSA Travel Locks Were Hacked And The TSA Doesn't Care

from the locks-with-scare-quotes dept

The TSA, it appears, is just simply bad at everything. The nation's most useless government agency has already made it clear that it is bad at knowing if it groped you, bad at even have a modicum of sense when it comes to keeping the traveling luggage of citizens private, and the TSA is especially super-mega-bad at TSA-ing, failing to catch more than a fraction of illicit material as it passes by agents upturned noses. And now, it appears, the TSA has demonstrated that it is also bad at pretending to give a shit.

In case you missed the recent news, the TSA's specially designed master key to open all of the specially designed TSA-recognized luggage locks were especially super-hacked by someone with access to such privileged information and equipment as a newspaper subscription and a 3D printer. By using a picture in the Washington Post of a TSA agent's master key and some documents from Travel Sentry, a group that generates and enforces TSA protocols, one security researcher was able to create 3D printer files to create his own master key.

Steven Knuchel, a hacker/security researcher who goes by Xylitol or Xyl2k, used the detailed images obtained from the Travel Sentry website to create the kind of files that 3D printers use to produce models. Since the files were first published, several people have demonstrated that they work, using inexpensive 3D printing plastic called PLA.
So, hey, that's probably bad, right? I mean, here we have the TSA recommending passengers lock their luggage with locks designed with a TSA-backdoor in the form of a master key, and now anyone can make the master key. That would seem to leave thousands (millions?) of passengers' luggage vulnerable to break-in. Not a great look for an agency designed with no other goal beyond security. The TSA response?
“The reported ability to create keys for TSA-approved suitcase locks from a digital image does not create a threat to aviation security,” wrote TSA spokesperson Mike England in an email to The Intercept. “These consumer products are ‘peace of mind’ devices, not part of TSA’s aviation security regime,” England wrote.
Yes, that's correct. Upon being informed of the TSA lock master key hack, the TSA essentially went with the "we don't give a shit" approach. I will say, at the very least, that it's somewhat refreshing to hear a government representative admit that at least some part of aiport and passenger security boils down to the feel-goods, but I'm of the opinion that a security agency unconcerned about security probably shouldn't be allowed to exist any longer. Especially when that same agency has been touting those same useless locks for years to passengers.

The larger point, of course, is that this is inevitable when you build security with backdoor access.
Nicholas Weaver, a computer security researcher at Berkeley, wrote on the Lawfare blog about the TSA locks and how they are “similar in spirit to what [FBI] Director [James] Comey desires for encrypted phones.”

Xylitol, the GitHub user who published the blueprint of the keys, said that was his point. “This is actually the perfect example for why we shouldn’t trust a government with secret backdoor keys (or any kind of other backdoors),” he wrote in an email to The Intercept. “Security with backdoor[s] is not security and inevitably exposes everyone.”
That's an axiom that other government agencies might want to pay attention to. The breaking of TSA locks wasn't even particularly difficult. If the government truly wants security on the networks of the American people, be the computer, phone, or otherwise, building in government backdoors provides the perfect entry point for bad-actors. If they actually want security, leave the backdoors out, or they risk looking every bit as dumb as the TSA.

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Posted on Techdirt - 18 September 2015 @ 9:35am

Federal Judge: Profanely Insulting An Entire Town On A Speeding Ticket Is Protected Speech

from the f#*@-yeah dept

Do you remember Willian Barboza? No? He was the un-creative but quite profane young man who, upon being pulled over for speeding the laughably-named Liberty, New York, mailed in his ticket and fine with these wonderful words of wisdom scrawled across the top.

Fine, so Barboza isn't exactly Robert Frost. Still, his admittedly vulgar etchings probably weren't reason enough for the city to refuse his payment and subsequently charge him with harrassment under a horribly unconstitutional law. The city went that route anyway, though, and the matter went before a court, where the judge dismissed the charges against Barboza, as his profanity upon the ticket was obviously protected speech. I had thought that was the end of the story. I was wrong.

Shortly after that, Barboza, with the help of the New York Civil Liberties Union and attorney Stephen Bergstein, filed a lawsuit against the town of Liberty, assistant district attorney Robert Zangla and the two officers who arrested Barboza. The suit alleged that the arrest had violated Barboza's First Amendment right to free speech.

Barboza's attorneys argued that officials in Liberty had seriously misinterpreted New York's aggravated harassment statute. The statute says it's against the law for a person to "harass, annoy, threaten or alarm” someone "by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication." But Seibel said Thursday that what Barboza wrote, "though crude and offensive to some, did not convey an imminent threat and was made in the context of complaining about government activity," and therefore did not violate the statute.
And, frankly, it's hard to argue with his attorneys. The wonderful thing about free speech is that the speech is free even if the listener doesn't like it. The city's attempt to twist a harrassment law into the kind of pretzel that allows it to silence the criticism of government or law enforcement was deplorable and not befitting a town that takes the name of Liberty. As a person who relies on language some might find salty in order to make or emphasize a point, it would be a travesty to have to wonder whether simple expression might result in arrest and jail time. I, frankly, can't think of anything more un-American.

The judge hearing Barboza and the NYCLU's case agreed with them completely.
Judge Cathy Seibel said that prosecutors and police in Liberty, New York, violated Willian Barboza's civil rights when they arrested and prosecuted him for writing "Fuck your shitty town bitches" on a ticket he received in 2012. The judge stated that Zangla is liable for damages because he violated Barboza’s clearly established constitutional rights, but that the two police officers are not liable because Zangla instructed them to make the arrest. Seibel also ruled that Liberty will have to stand trial for failing to train police officers regarding the First Amendment.
Perhaps we should be getting the primary schools Zangla went to involved as well, because First Amendment protection is elementary school civics class stuff. Regardless, it's a win for all of us salty-mouthed bastards.

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Posted on Techdirt - 17 September 2015 @ 11:39am

Come See An Uninformed Asshole Try To Trademark-Corner A School Into Keeping Their Unwanted Nickname

from the fail dept

Look, to be fair, trademark law has become such a convoluted mess, and there have been so many public examples of companies and people trying to bend that mess into uses it was never designed for, that navigating the rules for trademarks can be difficult. With that said, it's somewhat satisfying to watch a jackass troll try to use trademark in the employ of his trollitude, all while knowing enough about the law to know that he has no shot of success. This is the story of the University of North Dakota and its attempt to give itself a new nickname.

Earlier this year, the UND created a committee after taking open submissions for a new nickname to replace the old nickname, the Fighting Sioux. Turns out some of the local tribes weren't thrilled at the use of an Native American tribe's name in this way, so the university agreed to replace it. The committee then whittled the list down to five potential candidates: Fighting Hawks, Nodaks, North Stars, Roughriders, or the Sundogs. But then a total non-problem reared its ugly head.

A man by the name of Marlan “Hawk” Haakenson, who just so happens to be the former mayor of Bismarck—the capital of the state and its second largest city—went ahead and registered trademarks in the state on Fighting Hawks, Nodaks and North Stars, and only declined to register Roughriders and Sundogs because of already existing registrations.
He reportedly wants the school to keep the old nickname, so he's attempting to register for trademark anything else the school might call itself. And he really thinks this is going to work.
Haakenson, who attended North Dakota State University but says he’s a supporter of the Fighting Sioux nickname, said he registered the trade names Fighting Hawks, Nodaks and North Stars with the North Dakota secretary of state in order to prevent UND from using them.

“As far as I’m concerned, [UND president Robert] Kelley will never get permission from me,” Haakenson said. “I’ll use every legal means I have to stop him from using the names.
You, the Techdirt reader, are probably already laughing at this. After all, "every legal means" in Haakenson's arsenal in this case turns out to be "zero legal means", because this isn't going to work. For Haakenson's trademark to be valid, he must be using it. And, by using it, I don't mean using it to be an asshat to a university he never even attended. He has to use it in the marketplace. He won't be able to demonstrate he's done so. And for any infringement case he might bring against UND to be valid, he'd have to demonstrate that he and UND were in the same industry and that the usages were likely to be confused. Anyone want to suggest that someone might confuse a jackass with a public educational institution? I didn't think so.

Which is why UND is apparently dismissing Haakenson's attempt entirely.
UND spokesman Peter Johnson said Haakenson’s trade name registration shouldn’t prevent the nickname selection process from going forward.

“We would not be engaging in any real estate activity (using the trade names) so that shouldn’t be an issue for us,” Johnson said. “It’s not uncommon to have the same name among sports teams. But it’s even more common to have the same names in different endeavors.”
Nice try, sir. If you were a Techdirt reader, you would have already known this was futile.

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Posted on Techdirt - 17 September 2015 @ 3:08am

NYPD Union Prez Patrick Lynch: Only Police Are Qualified To Judge The Actions Of Police

from the lol-no dept

As you've probably already heard, last week former tennis star James Blake was blitzed by an NYPD plain clothes officer in front of his hotel, tackled to the ground, and left cuffed there bruised and cut. The officer in question thought he was brutalizing someone who had committed credit card fraud. In itself, this would be quite a problem, as credit card fraud isn't the kind of crime that typically results in an NYPD beatdown. Except that James Blake is black. He's also, as it turns out, not even the suspect this officer was supposed to be looking for. He just happened to fit the description. The NYPD has since apologized to him, an apology that one would hope was met with narrowed eyes and a defiant chin.

But you'll never guess who isn't apologizing. Actually, you probably will, because it's NYPD Patrolemen's Benevolent (hah!) Association President Patrick Lynch, who penned a letter to the media covering the story. Let's just see how much we can get through this before we stop pretending like we're dealing with a sane person, shall we?

And we're off to a bad start. Jumping to conclusions isn't the best description when there is public video of Blake getting tackled and the NYPD has already apologized. Oh well, on to the real meat of this gem.
To all arm-chair judges:

If you have never struggled with someone who is resisting arrest or who pulled a gun or knife on you when you approached them for breaking a law, then you are not qualified to judge the actions of police officers putting themselves in harm's way for the public good.
And just like that, we're done. I've embedded the rest of the letter below the post in case you want to read the whole thing, but you really probably shouldn't. There isn't much point in continuing to read something built on a premise that rests entirely on the logical fallacy of argument from authority. The very idea that anyone who hasn't arrested an armed resistor ought be precluded from judging those who have is provably false. After all, there is no test of would-be judges that includes a screening to make sure they've experienced this. And they're literally judges. Beyond the courts, the press has long been investigators into police misconduct, highlighting abuses. It's their job, after all. And the public falls under the purview of our laws, which just so happen to apply to police as well. And those laws are built by the public's representatives, so you best believe that the public has every right to judge public servants against those laws.

But according to Lynch's amazingly stupid letter, this all goes out the window when it comes to the police. They have earned the benefit of the doubt. Why? Because danger, yo.
That is why no one should ever jump to an uninformed conclusion based upon a few seconds of video. Let all of the facts lead where they will, but police officers have earned the benefit of the doubt because of the dangers we routinely face.
Dangers like tennis players standing idly outside a hotel lobby? Do tell!

In any case, commentators appear to not be taking Lynch's letter to heart. You really should read all of Ken Womble's open letter in response to Lynch's, but since I only made it through a couple of grafs of Lynch's, we'll keep this fair and include only the first paragraph of Womble's response.
Sept. 16, 2015 (Mimesis Law) — Dear Pat,

I am in receipt of your letter entitled “An Open Letter To All Of Those Inclined To Jump To Conclusions.” First, allow me begin by making a point that I think is vitally important. Fuck you.
I agree. Fuck you, Pat. Fuck you very much.

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Posted on Techdirt - 15 September 2015 @ 11:15pm

Trademark Super-Bully Apple Blatantly Infringes On Headphone Company's Trademarks

from the live-by-trademark-die-by-trademark dept

It's not terribly often we spend the time to write about valid trademark complaints in these here Techdirt pages, but I do think there are times when it makes sense to do so. One of those times is when a company that does everything in its power to be as super-trademark-bullying as possible just flagrantly infringes someone else's trademark as though it were the most natural thing in the world to do.

So let's set this up. Now, I probably don't need to explain to the average Techdirt reader just how trademark-a-licious Apple has always been, but in case I'm wrong about that, it trademarked the interior design of its retail stores, it has long-insisted it is the only one that can use an apple in its logo, it argued that it owned the trademark rights for the generic term "app store," and it even went ahead and threatened a school because it used the forbidden fruit in its logo. In other words, Apple is as trademark-y as it gets.

Except when it comes to headphones it wants to market, in which case someone else's valid trademark can just fuck right off.

Direct Sound Headphones, LLC, of a Fenton, Missouri has sued Apple for Trademark Infringement over the term “Ear Pods”

Plaintiff, (“Direct Sound” or “Plaintiff”) sued Apple for “violations arising under the Trademark Act of 1946, 15 U.S.C. §1051, et seq., (the “Lanham Act”) and for common law trademark infringement and unfair competition under the laws of the State of Missouri, “based on Direct Sound’s ownership of the trademarks “E.A.R.PODS” and “e.a.r.Pods”; Direct Sound’s use of the trademarks “E.A.R.PODS” and “e.a.r.Pods” in manufacturing and selling audio headphones; Apple’s subsequent, improper, and infringing use of “EarPods” to sell goods including audio headphones; and Apple’s continued improper use of “EarPods” despite Apple’s knowledge of Direct Sound’s prior use and ownership”.
Seems pretty clear cut to me. EarPods was a barely-variant version of a trademark registered by another company, the use of which could have been found with a simple google search, nevermind any actual investigation into the prior use of the term. And, yes, having yet another product in the tech world out there with the use of "pods" in it is as stale as cheap beer that's been sitting in sunlight for the better part of a day, but that isn't really the point. "Ear Pods" works as a trademark and Apple disregarded it and marketed its own product with the term.

And this isn't even the first go around with Apple's product's name.
Back in September 2012, we wrote a story about Apple failing to secure the domain names EarPod.com and/or EarPods.com before announcing its Ear Pod product, writing in part:

“The domain name Earpod.com has been registered since 2008 and is being forwarded to a hearing clinic site at myhearpod.com.

The company that owns the domain name earpod.com owns a trademark on the term “hearpod” and maybe in a position to object to Apple’s trademark or sued Apple for infringing on its mark especially since the own Earpod.com.
Live by the trademark, die by the trademark, sirs. You can't on one side be the bully and then cry victim.

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Posted on Techdirt - 15 September 2015 @ 3:28pm

Anti-Cheat Software Company Contracted By Rutgers Fails To Live Up To Privacy Agreement With Students

from the i-see-you dept

There has always been a strong emphasis in educational institutions on stopping cheating. All of this hand-wringing makes sense to a point, of course. With the advent of technological progress, however, two separate roads appear to be heading to a cross: the use of technology to stop cheaters and the question of just how we're going to define cheating as information becomes more widely searchable and available. For the latter, I'm very much in favor of judging students on their ability to find answers and create interesting solutions compared with the originality of their responses. As the saying goes, it's not what you think that's most important, but how you think. As to the former, it seems we can't go a single story about schools using technology to police any aspect of their students without finding some failing in its implementation.

Such as the latest instance out of Rutgers, where the school hastily dove into a partnership with ProctorTrack, an anti-cheating and student-monitoring platform that failed to live up to its end of the privacy bargain with students.

Verificient Technologies, the company behind the student-monitoring, anti-cheating software ProctorTrack, has not communicated to Rutgers students what the company has done with their personal data.

As we reported, ProctorTrack uses remote-monitoring technology to collect audio, video, and document the web activity of students as they take the exam. The software also scans the ID, face and knuckles of the student, and takes a voice sample. But complaints from students suggest that Verificient has not sent out any notification about the status of their data.
Notifications that Verificient was contract-bound to supply to students upon the purging of the data it collected on them. The way this was supposed to work was that all student monitoring data would be deleted from the primary servers after 90 days, with a notice to students, and then deleted form the backup servers 30 days after that, with another notice to students. Aiding in the confusion is that Rutgers had initially told students the purges would occur within 30 days of the test, back when the school had only a verbal agreement with Verificient, as did the company on its website in what it called its "privacy pledge." That pledge appears to have been violated in the name of "we can change our promise whenever the hell we feel like it" corporate provisions.
But the company's privacy policy at the time of the blog post stated that it could unilaterally amend its policies at any time, and that student data could be disclosed to third party service providers or in the event of a bankruptcy or company merger. But the contract singed in August provided for a longer time frame to delete data, and notify students: 90 days.

According to the contract, which actually went into effect seven months before it was signed, students who used the software during the spring 2015 semester should have received email notifications that their proctoring data had been permanently deleted from the servers.
But they didn't get those emails and students are now rightly pissed off at not knowing what the hell is going on with their personal, audio, and video data. Were this about monitoring web-browsing during tests, it would be bad enough, but we're talking about intrusive audio/video data on students and the company handling that information couldn't be bothered to follow its own post-redefinition pledge of privacy notifications. And, it should be noted, Rutgers students themselves had to pay $32 for the privilege of using this software.

So who exactly is the cheater here, guys?

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Posted on Techdirt - 15 September 2015 @ 11:42am

Nintendo Hates You: Massive Takedowns Of YouTube Videos Featuring Mario Bros. Fan-Created Levels

from the your-fandom-is-in-another-castle dept

As of late, Nintendo's relationship with YouTube and the YouTube community has been, shall we say, tumultuous. After rolling out a bad policy to share revenue with YouTubers on the basis that those personalities torpedo their reputations by promising only positive Nintendo coverage, claiming the monetization for a large number of "let's play" videos uploaded by independent YouTubers, and even going so far as to lay claim to the review of a Nintendo game created by well-known YouTuber "Angry Joe", Nintendo clearly seems to believe that YouTube is not so much an independent community as it is some kind of official public relations wing for the company. This is really dumb on many different levels, but chiefly it's dumb because it breeds ill-will amongst fans, of which Nintendo used to have many.

And the war drum beats on, apparently, as Nintendo has seen fit to issue massive takedowns of videos of fan-created Mario Bros. levels as the company releases its own Mario-level-builder, Super Mario Maker. What appears to be catching these YouTubers in Nintendo's crosshairs is if they used any emulators or hacks in order to make these levels.

Nintendo is targeting speedrunners and modders in a new round of YouTube copyright claims, issuing takedown requests to users who post footage from modified Super Mario World levels. The mass deletion coincides with the upcoming launch of Super Mario Maker, a Nintendo-licensed level creation toolkit for the Wii U console. Removed videos feature unauthorized Super Mario World levels created using freeware tools, rather than Nintendo’s official level design software.

Nintendo’s recent copyright claims impact speedrunners who have spent years crafting and documenting unsanctioned Super Mario World mods. According to a Kotaku report, YouTube user “PangaeaPanga” states that their channel was “wrecked” by copyright claims, resulting in the permanent removal of many popular videos.
In other words, modders had long beat Nintendo to the punch in creating software that allowed fans of Mario Bros. to create their own levels, upload them, and have folks like PangaeaPanga play them out and eventually master them. This was allowed to go on exactly up until Nintendo decided to jump into this arena, at which time the takedowns ensued. What you may not know is that there has been an active Mario Bros. modding community for these past few years, dedicated to building the most challenging levels for others to play and then post their runs on YouTube. In other words, these are huge Nintendo fans.
Super Mario World enthusiasts frequently create custom levels designed to challenge veteran players. Many of these levels require the use of little-known glitches and quirks within Super Mario World‘s engine, adding a degree of difficulty not present in the original game. Creative application of Super Mario World‘s hacking utilities has also produced unique autoplaying levels, including tributes that link in-game sound effects to backing music tracks.

Under the terms of YouTube’s copyright structure, users who have their videos claimed by copyright owners lose the ability to earn advertising revenue from their creations. Copyright holders have the option of claiming ad revenue from content-matched videos. As part of its most recent round of copyright claims, Nintendo instead opted to delete targeted videos entirely.
So we have Nintendo staring lovingly into the eyes of its biggest fans while pissing on their legs. And for what? Part of the reason Nintendo will likely make a killing with Super Mario Maker is that these dedicated fans had built up an interest in these modded levels and speedruns in the first place. Now, Nintendo intends on swooping in, killing off the videos of these fans, and yet cashing in on the market that the fans essentially created? How charming.

It's not that Nintendo can't do this, it's that it shouldn't. The company gains nothing except another round of fan discontent. Real smart, guys.

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