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About Dark Helmet Techdirt Insider

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.

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Posted on Techdirt - 21 February 2019 @ 7:23pm

Japanese Academics Issue The Tamest 'Emergency' Statement Over Proposed Copyright Amendment

from the take-a-breath dept

Recently, we discussed a proposed change to Japanese copyright law that would make literally all downloading of copyrighted material a criminal matter, rather than a civil one. This change would be fairly bonkers for an entire host of reasons. It has the potential to clog up the criminal courts with the same kind of minor copyright infringement cases that clog up America's civil courts. It would put a decisive chill on the sharing culture that brought the internet to its current state to begin with. And it would further the culture of ownership and protectionism already far too common across the globe.

And, as states an "emergency statement" issued by nearly a hundred Japanese academics, it would possibly criminalize the kind of personal copying that facilitates research, education, and personal growth.

In an ‘Emergency Statement’ signed by 87 academics, researchers, lawyers, and other experts, the government is urged to think again about the scope of the proposed legislation. Under the current proposals, the group believes that private copying could be rendered illegal, even to the extent of outlawing screenshots for private use.

“We believe that the limitation on the right of reproduction for private use purposes has the function of restricting the freedom of information gathering in the private domain. It is a legal foundation that supports the intellectual and cultural activities of individuals, and even Japanese industry,” the signatories write.

The group believes that the proposed legislation has been rushed through in a very short time (five meetings in three months), without carefully considering the consequences. They want the authorities to think again, to protect the public interest.

It's as timid a statement as could be offered. And it's one that essentially amounts to, "Whoa, guys, take a breath, because you don't know what you're about to do." Given the timeline on which this has occurred, it's a wholly reasonable request as well, given the enormous stake the public has and its nearly complete lack of a seat at the legislative table. The chill on both expression and research that this cluster-bomb law would have can't really be overstated, as the kind of personal copying that it would seek to criminalize has become essential to both.

And, to be clear, these academics aren't exactly against enforcing copyright laws generally, either.

Importantly, those calling for the proposals to be considered more closely appear to be broadly in favor of tightening up the law to protect rightsholders. However, there are serious concerns over the potential for collateral damage when even snippets of text could be criminalized.

To that end, they suggest amendments to the proposals to mandate that it’s only a crime to reproduce copyright works when the act causes real financial damage to content owners, in the case of those who pirate whole movies, music, manga publications, books, and so on.

If you're looking for a silver lining in all of this, perhaps one can be found in this being a perfect litmus test for how government that bows to moneyed interests will react to the most modest of requests against those interests. In other words, the academics in this case are essentially asking that the law eventually do only 90% of what it originally aimed to do.

If the Japanese government can't be bothered to take even that request seriously, then perhaps the public should give up on it entirely.

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Posted on Techdirt - 20 February 2019 @ 7:53pm

The Latest In Trademark Abuse Is Registering Marks To Obtain Ownership Of Instagram Accounts

from the fake-it-until-you-make-it dept

When one thinks about an Instagram account being taken over by a malicious actor, one usually imagines some kind of hack or social engineering resulting in the theft of an account password. The refrain "It wasn't me, I was hacked!" that you hear from some whose social media profiles are the subject of social scrutiny relies on this impression.

But there are many different ways to hack a cat. The latest in Instagram account takeovers appears to be done through the avenue of trademark law, interestingly enough. Motherboard has a fascinating write-up detailing an entire ecosystem of malicious actors who are abusing trademarks to convince Instagram to hand over access to accounts.

Scammers do this by creating fake companies and trademarks to convince Instagram they should be the legitimate owner of a username in question, with fraudsters using “trademarking,” as the technique is known, to get ahold of sought-after, valuable handles, according to posts and evidence of the process in action obtained by Motherboard. The scammers can then keep these handles as digital mementos, brag about their acquisition, or resell them at a profit in a thriving underground community.

Instagram allows users to report handles that a person or company believes infringes on their trademark. For example (this is a hypothetical), if the creator of the @disney handle on Instagram was not actually associated with Disney, the company may want to appeal to obtain ownership of the username. If Instagram agrees, it may then hand over control of the account to the original trademark holder. Instagram told Motherboard it has a team that works on trademark and intellectual property issues, and as part of that process, the team reviews whether a complaint may be fraudulent.

Judging by the sheer volume of bad actors that are "trademarking" in order to fool Instagram, it seems the company's team is at best not fully up to the task of weeding out the fraudsters. And, to be clear, this isn't so much a problem with trademark law as it is a problem with Instagram putting so much weight on supposed trademark ownership that it acts as the linchpin for account takeovers. That said, while time consuming, the ease with which bad actors can spin up trademarks makes this problem more wide-spread.

Several users on the underground forum OGUsers, which focuses on the theft and sale of high value Instagram accounts, appear to engage in the practice.

“I’m looking to get a trademark or fake trademark that will make it look like I own a word so I can get an insta username,” one user posted on the forum last year.

“Need someone from the uk to file a trademark from me,” another OGUsers member wrote last year. “Willing to pay fees + 20% in bitcoin.”

A previous Motherboard investigation found members of OGUsers often sell handles for thousands or sometimes tens of thousands of dollars worth of cryptocurrency, although most of those account hijackings likely rely on SIM-jacking, where a hacker takes control of a victim’s phone number.

Again, the ultimate culprit here is Instagram using a trademark, or supposed trademark, as the chief justification for handing over an Instagram account. There obviously needs to be more of a check in place to ensure that this exact tactic is not allowed to be abused. It's also something of a symptom of ownership culture that an individual is allowed to point to a trademark, then to an Instagram account, and claim ownership.

It seems the only barrier to abusing trademark law for malicious actions is one of creativity.

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Posted on Free Speech - 19 February 2019 @ 7:44pm

David Assman Invalidates Canadian Government's Reason For Refusing Him His Name-Based Vanity License Plate

from the the-assman-cometh dept

It's been a source of confusion for me over the past few years how there can possibly be so much conflict in the realm of vanity license plates. While I can understand the need for something in the way of rules when it comes to government-mandated plates, it's still the case that such plates are a form of expression and, given the government mandate, one would think the government would tread lightly when it comes to overly restrictive rules for them. And, yet, stories about agencies disallowing Star Trek references because ignorant people think they're racist, about police being unable to have a plate that reads "O1NK", and about governments somehow thinking IT-related terms are sexual abound.

At first glance, one man's request for a vanity plate that reads "ASSMAN" might appear to be outside of these types of cases. After all, even the vulgar among us might understand a government worker disapproving of such a request out of concern for the purity of all the other drivers out there. On the other hand, when the denial for an "ASSMAN" vanity plate leaves the Canadian government offices in an envelope addressed to David Assman, it seems we're right back in the territory of the prudishly absurd.

Assman first tried to put his name on a license plate in the 1990s. That application was rejected by SGI as “profanity.” His recent application was denied on the grounds that it was “offensive, suggestive or not in good taste.”

“I think they are too worried that people are going to have hurt feelings about something that is complete nonsense,” Assman told the National Post by direct message last week. “Even if it wasn’t my last name who is it going to hurt?”

This decades long struggle by David Assman to get the Canadian government to acknowledge that his own last name is not vulgar in the form of a license plate must surely have been frustrating. Why should Assman have to put up with this shit? Regardless, even if you would come down on the side of the government denying him his vanity plate so as to prevent his vulgarity of a surname from showing up on the back of his vehicle, Assman has other outcomes in mind.

David Assman is the hero we need, not the one we deserve. Yes, this story's final arc is Assman completely invalidating the reasoning behind the Canadian government denying him his vanity plate in the first place. In case you cannot see the picture, he had an auto body painter put his own last name on the back of his truck in letters that would be, oh I don't know, ten or so times the size that they would have been on the vanity plate itself.

And so we tip our hat to the Assman this day. And we remind bureaucracies everywhere that people should just be allowed their vanity plates.

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Posted on Techdirt - 15 February 2019 @ 7:39pm

Wrestler Booker T Sues Activision For Copyright Infringement Over Fairly Generic Character Depiction

from the no-bro dept

It's old hat by now to point out that on matters of copyright far too many people are unaware of the nuances of the law as to what constitutes infringement and what doesn't. While this is generally true, it's all the more so when it comes to how copyright covers specific characters or settings. For instance, George Lucas may have a copyright claim on the specific character of Darth Vader, but he most certainly does not have any claim to the more generic black-armored space-magician with a laser sword and a bad attitude. Copyright covers expression, in other words, not mere ideas.

Which brings us to ex-WWE wrestler Booker T and his lawsuit against Activision over a G.I. Bro character he created and a character in Black Ops 4.

Booker T. Huffman has filed a lawsuit against video game publisher Activision for allegedly stealing his “G.I Bro” character in the Call Of Duty: Black Ops 4 video game.

Huffman filed a lawsuit today against Activision Publishing, Inc, Activision Blizzard, Inc., and Major League Gaming Corp.

The lawsuit alleges that Booker T’s character G.I Bro was copied by the Black Ops character David “Prophet” Wilkes. Booker T used the G.I Bro character in the 90s as a professional wrestler, and also created a comic book based on the character in 2015.

You can read the entire filing below, but I will tell you right up front that this isn't a strong case. Booker T is asserting copyright infringement over a character that does not share a name with his, does not share a backstory with his, and does not exist in the same setting as his. Instead, it appears the only thing the two characters do share is that both are African American gunslingers in combat gear with long hair. Seriously, that's about it. The filing itself uses these side by side images to demonstrate the "blatant copying" that has occurred.

If you think there is any kind of unique identifier in Activision's image on the right that somehow makes it a clear copy of Booker T's character, you're a crazy person. Again, to put it bluntly, it's just an African American guy with long hair in combat gear. Complicating Booker T's suit further, this is an established character in the Black Ops ethos, with this supposedly infringing depiction being simply some imagery around when Prophet was younger. The character is Prophet, full stop. It's not G.I. Bro at all and nobody is going to think otherwise, except apparently for Booker T and whatever lawyers he convinced to file this lawsuit.

And none of that even touches Booker T's own character's name, a clear homage and reference to G.I. Joe. One wonders if Hasbro wants to get involved at this point, given the stink that's being made over intellectual property rights.

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Posted on Techdirt - 15 February 2019 @ 12:10pm

Good Luck, Japan: Government About To Make All Copyright Infringement A Criminal Offense

from the this-should-go-well dept

We often bemoan the sheer volume of copyright infringement lawsuits that occur here in America. With an overly protectionist mentality coupled with a culture of ownership, the civil courts are frankly bursting with these lawsuits when there are so, so many more efficient ways we could do things. But we can at least take some comfort in the fact that in America copyright infringement is largely a civil matter, with criminal copyright infractions being relegated to true commercial uses of infringing activities, or those over a certain dollar amount. This saves an insane amount of undue headache for our criminal justice system.

But not every country does it this way. In Japan, for instance, copyright law has long been such that any copyright infringement having to do with music and movies has been the subject to potential criminal prosecution. This has already resulted in citizens being hauled into court by the government under potential sentences of two years in prison for the downloading of a single movie or music file. That outlandish disparity in crime and punishment has resulted in call outs from groups like the EFF. And, yet, despite such clapback, the Japanese government is currently recommending that this exact same criminalization and punishment regime be rolled out to every instance of copyright infringement, rather than relating only to music and movies.

Last year it was reported that an advisory panel for the Cultural Affairs Agency was considering the possibility of rendering the downloading of a broader range of content as a criminal offense, roughly in line with laws passed in 2012 outlawing various forms of file-sharing. This week, those plans took a significant step forward.

According to local sources, a government panel adopted the new policy on Wednesday, recommending to the Cultural Affairs Agency that current anti-downloading legislation should be expanded to cover all copyrighted content. The Agency is now expected to submit a bill to amend the Copyright Act.

While the exact punishment guidelines are currently being debated as I write this, that two-year sentence guideline from the 2012 law is very much being looked at as the standard. To roll this out to copyright infringement writ large is flatly crazy. As we and many others have stated over and over again, many people casually engage in copyright infringement in their daily lives without even realizing it. To subject such behavior to multi-year prison sentences is both pernicious and misguided. If criminal cases are pursued uniformly for copyright infringement, it's going to put nothing short of a stranglehold on the Japanese courts.

It's also worth noting that all of this is being done in a way vague enough that it's almost certain to cause confusion and chaos.

Additionally, these sentences would only be handed down in the event that victims of infringement file criminal complaints. However, the threshold for a criminal complaint is unclear and could cause issues for the legal system if there are large numbers of referrals.

Now, Japanese copyright law has steadily become more restrictive over time. But this move, if enacted, would represent a giant leap forward into a real age of restriction and undue punishment for the Japanese public. So, good luck to my Japanese friends. I can't wait to see the fallout.

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Posted on Techdirt - 14 February 2019 @ 8:02pm

Sony: We Are Totally Open For Crossplay, Game Developers: No, You Totally Are Not

from the cross-purposes dept

It's a really dumb saga that has gone on for far too long, but Sony has built for itself a public history of not allowing gamers to cross-play multiplayer games on their Playstations with players on other consoles. This is all an attempt to get Playstation owners to convince their friends to also buy Playstations so that they can game together, which is exactly the kind of protectionist hardball that makes Sony, you know, Sony. The backlash against Sony last summer was bad enough that Microsoft and Nintendo, rivals in the console space, decided to put out joint advertisements together along with a social media campaign essentially trolling Sony over the issue, while pointing out to gamers worldwide that owners of Nintendo and Xbox consoles very much could play with one another.

In one of the all-time underwhelming responses to a PR crisis in the history of gaming, Sony did enable crossplay... for exactly two games. Fortnite and Rocket League have crossplay enabled, but literally nothing else. Which made it somewhat baffling that the Chairman of Sony Interactive managed to claim in a recent interview that the lack of crossplay at this point was all the developers' fault.

“People keep saying, ‘Why doesn’t Sony allow more people to have it,’” Sony’s Shawn Layden told Game Informer. “All it takes is for publishers and developers who wish to permission it. As ever, just work with your PlayStation account manager, and they will walk you through the steps that we’ve learned through our partnership with Epic on how this works. I don’t believe right now there is any gating factor on that. I think they’re open to make proposals, because the Fortnite thing worked pretty well.”

It's a striking claim in many ways. First, the inclusion of a phrase like "as ever" must surely be infuriating to any developer or gamer who knows the history of crossplay on Sony's hardware. It's not "as ever." At best, it's "as very, very recently." Second, the claim makes no sense. Developers and publishers across the spectrum have managed to get crossplay enabled on Xbox and Nintendo hardware, but the claim is that they've just been too lazy to do so with Sony? All while they're screaming that they want their games to be crossplay enabled? Come on.

And it's not just me saying so. Layden's comments were met with immediate backlash from developers.

Finn Brice, the CEO of Chucklefish, which developed and published the recent Advance Wars-inspired hit Wargroove, took issue with Layden’s characterization in a thread about the interview on the gaming forum ResetEra.

“We made many requests for crossplay (both through our account manager and directly with higher ups) all the way up until release month,” Brice wrote. “We were told in no uncertain terms that it was not going to happen.”

Wargroove is currently available, with cross-play, on Switch, Xbox One, and PC. The game is slated to launch later this year on PlayStation 4. Brice added that while it might be more complicated from a policy standpoint on PlayStation’s part, for Chucklefish, implementing cross-play is as easy as flipping a switch, something people have speculated about ever since Fortnite maker Epic Games accidentally enabled cross-play between Xbox One and PS4 back in September of 2017.

In other words, Sony is Sonying all over this. Why in the world this kind of comment should be thought to do anything other than anger both gamers and game developers alike is beyond me. Blame developers for your own protectionist behavior that refuses what your own customers want? That's ballsy, even for Sony.

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Posted on Techdirt - 13 February 2019 @ 7:53pm

Movie Torrents Shown To Actually Boost Box Office Sales For Post-Release Movies

from the buzz dept

With what is now many, many years covering issues of piracy and intellectual property, it will come as no surprise to you that we've specifically dived into the intersection of copyright infringement and the film industry over and over. What is something of a counter-intuitive notion, however, is that we also have a decade-long post history pointing out that, despite all the fear-mongering about how piracy is killing the movie industry, box office records keep getting broken on the regular. The easy point to make is that obviously piracy is not killing the film industry, given how many movie tickets are being sold. But perhaps, according to a recent study, we should have gone one further and explored whether box office records were being broken in part because of piracy.

Researchers from the University of Houston and Western University dug into the effect of The Pirate Bay's offline status in part of 2014 and came away with some surprising findings.

Movies shared on The Pirate Bay are the main focus. The researchers use the Pirate Bay downtime following the 2014 raid to measure its impact on word-of-mouth promotion and box office revenues.

Based on a sample of hundreds of movie torrents and data from most popular movie review sites, Lu and his colleagues estimated this effect. Their results are rather intriguing.

And, as you might expect, those results are also more nuanced than either "Piracy bad!" or "Piracy fine!" mantras. Instead, the research suggests that having pirated copies of a film prior to release has a definite negative impact on box office numbers. But, importantly, the opposite is true when a film is made illicitly available after release.

This changes when the researchers look at post-release piracy. That is, piracy which occurs after a film has premiered at the box office. In this case, there’s a positive effect on box office revenue through an increase in word-of-mouth promotion (WOM).

“We find that the volume of online WOM mediates the impact of piracy on the box office. Based on counterfactual simulations, the WOM-effect from post-release piracy on the box office increases revenue by about 3.0%,” they write.

In other words, when The Pirate Bay went down, box office revenue dropped as well. This effect is significant and not linked to seasonal changes, as it wasn’t there in previous years. The positive effect is strongest during the beginning of a movie’s release and differs per genre.  Action movies, comedies, and thrillers, benefit more from a positive piracy “buzz” than dramas, for example.

So what does this mean? Well, for starters, it means that the MPAA's myopic notion that piracy is always bad, full-stop, is refuted by the data. Instead, the data suggests that movie studios could make very good use of piracy in the right circumstances, or at the very least they could focus their enforcement efforts only in the areas where piracy appears to cause actual harm, rather than where it helps sales numbers. This would be the logical course to take, given that post-release piracy appears to be a boon to box office revenue.

“Pre-release piracy can have a substantial negative effect, in our data this overwhelms the positive effect we look at. That is, the overall effect of piracy is still negative,” Lu tells us.

That said, there is an interesting lesson to be learned. Based on this study, copyright enforcement should be mainly targeted on early leaks. If these are dealt with, the main problem is ‘gone.’

“Our findings suggest approaches to target scarce anti-piracy resources, such as focusing on tackling damaging pre-release piracy,” the researchers write.

Makes sense. Hollywood, however, has never shown itself to be capable of this kind of nuance. Instead, sledgehammers are preferred over more precise approaches, with lobbying power dedicated to broad policy statements that apparently would at least in part be a detriment to sales revenues. And if that isn't stupid, I don't know what is.

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Posted on Techdirt - 12 February 2019 @ 3:33pm

Owner Of Harry Caray's Restaurants Finds You Can't Just Trademark A Widely Used Hashtag

from the #holycow dept

As someone who spends a great deal of time writing about trademark law and trademark disputes, I am often repeating that trademark law was put in place specifically to keep the public from being confused as to the source of affiliations of a particular good or service. This is a necessary repetition, as far too many people think that trademark law was designed to allow opportunists to lock up language for commerce simply because they thought to do so. While the USPTO has historically been far too lenient on trademark matters, it is a fact that a mark that doesn't function to inform the buying public as to the source of a good or service is an invalid mark.

This is a lesson recently learned by Grant DePorter, owner of Chicago's Harry Caray Restaurant Group, who attempted to register the hashtag "#MAGICNUMBER108", a reference to the Cubs long-held World Series drought.

Initially, the examining attorney assigned to DePorter's application said that the trademark application was not worthy of registration, because #MAGICNUMBER108 is informational matter that fails to function as a trademark to indicate the source of DePorter's goods and to identify them from the goods of others. The TTAB affirmed the examining attorney's opinion. The main issue with DePorter's application is that the mark is a commonly used term or expression, which means that it is less likely for the public to use it to identify only one source. As such, it would deem the mark as being unworthy for registration status.

In other words, as this was a hashtag already in wide circulation when DePorter decided to apply for his trademark, the hashtag wouldn't serve as a reference for anything to do with Harry Caray's restaurants. One cannot simply witness something trending widely and then decide to lock that language up for themselves. Even if, as is the case with DePorter, one is in fact using that phrase or hashtag in commerce. Directly from the ruling:

Any evidence demonstrating widespread use of the wording is relevant, including, in this case specifically, social media tweets and posts of the type the Examining Attorney made of record in this application. The evidence provided by the Examining Attorney shows wide use of the proposed mark in a non-trademark manner to consistently convey information about the Chicago Cubs' World Series appearance and win after a 108-year drought. This evidence is competent to suggest that upon encountering Applicant's 'mark,' prospective purchasers familiar with such widespread non-trademark use are unlikely to consider it to indicate the source of Applicant's goods.

Again, for those of us who have some working knowledge of trademark law and its purpose, this is all plainly obvious. That it isn't obvious to the public writ large is the result of a permission culture fully out of control coupled with a USPTO far too often found sleeping at the wheel. This is obviously a case of attempted opportunism.

And it's a breath of fresh air to see the TTAB get this one right.

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Posted on Techdirt - 11 February 2019 @ 7:38pm

Monster Energy Loses Appeal On Monsta Pizza Trademark Ruling

from the monster-loss dept

Monster Energy, maker of caffeinated liquid crank, has a long and legendary history of being roughly the most obnoxious trademark bully on the planet. It faces stiff competition in this arena of bad, of course, but it has always put up quite a fight to win that title. The company either sues or attempts to block trademarks for everything that could even possibly be barely linked to the term "monster" in any way. One such case was its opposition to a trademark registration for Monsta Pizza in the UK. Pizza is, of course, not a beverage, but that didn't stop Monster Energy from trying to keep the pizza chain from its name. It lost that opposition, with the IPO pointing out that its citizens are not stupid enough to be confused between drinks and pizza.

And that should have been the end of the story, except that this is Monster Energy we're talking about, so of course it appealed its loss. Its grounds for appeal amounted to "Nuh-uh! The public really might be confused!" Thankfully, Monster Energy lost this appeal as well.

However, the bid was rejected "in its entirety" at the Court of Appeal.

Chris Dominey, who founded travelling pizzeria Monsta with Christopher Lapham in 2017, said he had been "immensely relieved" to reach the end of the battle but the business remained in debt due to legal fees which could not be recouped.

He said: "It feels great, I have got my business back, and it does feel good to beat a 'big bully' so to speak. If you are confident that you are right you should go for it, but but I would tell other small businesses to beware that it does cost a lot of money."

He's not kidding. In all, Dominey's business is out over eight thousand pounds in legal costs, having only been able to recover a fraction of what it cost him to defend his business against what appears to be a completely frivolous trademark opposition. That's how trademark bullying works, of course. Large companies like Monster Energy rely on that onerous cost to be able to get away with its spurious demands. That simply is not how trademark law is supposed to work.

But in the modern age, there are ways a business can get its customers to help fight back against such bullying.

The business uses a monster-shaped pizza oven, which its logo is designed to represent, meaning a name change would have required considerable upheaval. Mr Dominey thanked people who contributed to a crowdfunding campaign which helped pay for some of the legal costs, and those who "gave us support and told us to keep fighting".

The world needs more companies like Monsta Pizza fighting back against this kind of bullying to have a more global impact on trademark bullying. For now, we'll just have to enjoy another Monster Energy loss.

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Posted on Techdirt - 8 February 2019 @ 3:29pm

ChooseCo Inks Lucrative Deal With Amazon, Possibly Thanks To Netflix's 'Bandersnatch'

from the biting-the-hand dept

When we discussed Chooseco, the company behind the Choose Your Own Adventure series of books from decades past, and its lawsuit against Netflix for having content that allowed watchers to choose paths within the narrative, we focused mostly on how silly the lawsuit was purely from a merit standpoint. The trademark suit rested mostly on a throwaway reference or homage made by a character in the Netflix work, and the claim that Chooseco has licensed its name in the past but lost the opportunity to do so for this work. None of that makes the public at all likely to be confused into thinking that Bandersnatch was somehow a Chooseco product, nor does such a reference somehow cause the work to be trademark infringement.

But there's another angle in all of this. The homage made in Bandersnatch was truly an homage, meaning that it called to mind for many of a certain age the fondness we had for these Choose Your Own Adventure books. Despite the films dark themes, the reference itself is a positive one. And, frankly, it probably caused many to think about the series of books for the first time in a long time, making it something of an advertisement for Chooseco's products.

And that buzz surrounding Bandersnatch certainly coincidentally occurred alongside the more recent announcement that Chooseco has agreed to partner with Amazon to produce Choose Your Own Adventures for the Alexa.

You may remember ChooseCo from its lawsuit with Netflix over the Black Mirror episode. The company claims that Netflix never acquired the proper license to use the “Choose Your Own Adventure” trademark.

But clearly, ChooseCo still aims to benefit from the attention, and from Netflix’s ability to make this storytelling gimmick popular with a younger generation of tech-savvy consumers.

In collaboration with Amazon’s  Audible division, the two companies are together releasing an Alexa skill (properly licensed) that will bring ChooseCo’s Choose Your Own Adventure stories to life on Alexa-powered devices, like Echo smart speakers, which are controlled through voice commands.

Should Chooseco actually have thanked Netflix for its nod in Bandersnatch rather than suing over it? I'm not sure, but it doesn't seem unlikely that the huge amount of buzz surrounding the film contributed to, if not created, the Amazon opportunity for Chooseco.

And that's often the point when we talk about intellectual property lawsuits. There are often other ways to look at what is being sued over, with the relinquishing of a bit of control actually resulting in free promotion, free advertising, and the kind of word of mouth buzz that simply can't be bought as part of a media campaign. It would be immensely interesting to be on the inside at Chooseco, in order to get a sense of the sequence of events in which all of this occurred.

Regardless, it seems Chooseco at least had the option of choosing to be less litigious.

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Posted on Techdirt - 7 February 2019 @ 7:58pm

Steam Responds To Epic's Competition By Weaponizing The Steam Community

from the use-and-abuse dept

Despite the occasional criticism over how it communicates to the public, I've generally been a fan of Valve's Steam platform. Valve's not perfect, of course, but the company has generally tried to make Steam a place that is friendly to both major publishers and indies, all while taking steps that have been quite good for the average gamer as well, especially when it comes to policing games and reviews to ensure everything is on the up and up. It's probably for this reason that Steam hasn't had to endure much in the way of competition for some time. Yes, GOG.com exists, but the two game stores generally cater to different audiences and for different reasons.

Well, if you're someone who pays attention to the games industry, you will already know that Epic Games has made a great deal of noise by pushing its own online marketplace to compete with Steam. Coverage of Epic's platform peaked this past week, when Epic managed to lure the latest iteration of the Metro game franchise to being an Epic exclusive for a year, even after pre-orders were available for the game on Steam's store for the past several weeks.

Yesterday's news that Deep Silver's Metro Exodus is moving from Steam to Epic's Games Store was notable for what it says about Valve's position running PC gaming's dominant online storefront. But for consumers, it was perhaps more notable for the impact it had on the game's pricing.

If you pre-ordered Metro Exodus though Steam before yesterday, you paid $60 (and will still receive that preorder on Steam). If you preorder the game today on the Epic Games Store or buy it there after its February 15 launch, you'll pay just $50.

The driving force for the price difference is the more generous split Epic is offering publishers on its site compared with Steam's. In fact, despite the price reduction, Deep Silver will actually make more money per copy sold on Epic's site compared with what it would make on Steam. Pre-orders that had already been made on Steam will still be fulfilled, but that has to be plenty annoying for gamers who are suddenly finding the game $10 cheaper on another site. Still, platforms competing for publisher business is going to drive down prices and increase the revenue splits for creators. This, it should be said, is a benefit of competition that Steam has avoided for far too long.

And perhaps Valve doesn't really know how to handle it, because it sure seems like the totality of its response to the Metro story is to try to weaponize its community against the publisher.

On Monday, the latest game in the series, Metro Exodus, became an Epic Games Store exclusive, prompting Valve to call the sudden departure “unfair to Steam customers.” For some Steam users, that’s served as a rallying cry.  This has led to sustained outcry in the form of everything from review bombs of previous series entries Metro 2033 and Metro: Last Light to irate comments on every possible social media post associated with the game.

The review bombs don't make any bones about what they're trying to do. Many of them mention that the games being "reviewed" are actually great, but the review still has a low score as a way to protest Deep Silver's having shoved off to Epic for a year. And, while Valve didn't specifically ask Steam users to do this, it knew what would happen when it decried Deep Silver's business decision as "unfair to Steam customers."

Which is stupid. Gamers railing against Steam having competition is ultimately working against their own interests. The more competition out there, the better. And while I certainly wouldn't want to see the kind of fragmentation in game marketplace platforms that we've seen in, say, video streaming services, it would undoubtedly be a good thing for games to have multiple venues for release, all competing for their business.

Valve knows this, but it decided to coyly unleash the trolls instead.

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Posted on Techdirt - 6 February 2019 @ 1:33pm

YouTube's ContentID System Is Being Repurposed By Blackmailers Due To Its Failings

from the nice-channel-you-have-there dept

By now, we should all be aware that YouTube's ContentID system is not great. What was supposed to be an efficient way for content owners to report when their content is being used without permission instead represents essentially the worst from all worlds. It's bad from a operating technology perspective, since the system manages to flag non-infringing content as infringing content on the regular. And it's bad from a operating human standpoint, since YouTube puts so little emphasis on staffing around copyright claims that the appeals and review processes are a joke. The result of all this is a system that is wide open for both mistaken collateral damage and outright abuse. That abuse typically takes the form of people who either don't understand how copyright works, or who are interested in merely trolling others.

Or, as it apparently turns out, the system is a lovely avenue for pure extortion, according to recent reports.

A Youtuber called ObbyRaidz, who makes videos about Minecraft, has found himself having received two copyright "strikes" on Youtube from a blackmailer calling themselves VengefulFlame, who has demanded "$150 PayPal or $75 btc (Bitcoin)" or equivalent "goods/services" to have the strikes removed. If ObbyRaidz doesn't comply, VengefulFlame could send one more complaint to Youtube and have ObbyRaidz's account -- and all the videos he's created -- permanently deleted.

ObbyRaidz says he's been unable to get any help from Youtube, despite repeated complaints and entreaties.

This isn't some one-off instance, either. It turns out that this sort of extortion is a somewhat regular occurrence. And even that shouldn't really matter, because it's plain as can be that a system that even allows for the possibility of this kind of abuse is a system that is too broken to be allowed to continue. If anything, the demonstration of a flaw of this magnitude should result in the immediate reformation of YouTube's policies. It's permanent deletion policies, at the very least, should be top of the list to reform as its users are currently in danger of losing access to the platform that is choosing not to support them.

And we should keep this in mind given what's going on in the EU, where the government there appears to want to roll out this avenue for abuse to everyone, for everything, all the time.

The extortion attempt is a timely reminder of what's at stake in the fight over the EU's Copyright Directive, which mandates a much broader version of ContentID, but for every service and every type of copyrighted work, from tweets to Minecraft skins. Under the proposal, anyone could add anything to the databases of blocked content, and get anyone else's work censored; while this could be used simply to suppress information that a fraudster doesn't like (say, reports of political corruption or complaints about a scammy business), they could also be used as fuel for extortion.

It's going to be a fucking mess, mostly because the over-sized government is seeking to kneel before the content industries by serving them a half-baked plan to create some copyright database that simply is going to be abused, full stop. The lesson of ContentID is in what shouldn't be done, not what should. And certainly not what should be done on the scale of a continent.

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Posted on Techdirt - 5 February 2019 @ 8:07pm

Initial Fallout From McDonald's Losing Its EU 'Big Mac' Trademark Is Mockery From Burger King

from the mac-attack dept

While trolling online is something we generally have to suffer through rather than enjoy, I, for one, am absolutely here for the brand on brand trolling that occasionally sparks so much fun. Especially when done cleverly, this business on business violence is absolutely delicious. I was therefore very much delighted to learn that the initial fallout after McDonald's losing its trademark rights to the "Big Mac" in the EU is that some European branches of Burger King are delighting in rubbing McDonald's nose in it.

Burger King's Swedish operation recently revamped menus to poke fun at McDonald’s loss. Under the header Not Big Mac’s (sic), the sign listed meal options like “Burger Big Mac Wished It Was”, “Like a Big Mac, But Actually Big” and “Big Mac-ish But Flame-Grilled of Course”.

The chain released a video showing customers tentatively ordering from among the unusual choices, while a staff member appears unfazed as he calls out for Anything But a Big Mac.

And here is the video.

All fun aside, there are a couple of things to notice in all of this. First, it's likely that everything Burger King did with this campaign ought to be considered Fair Use even if McDonald's had never lost its trademark. After all, the entire point in calling out the "Big Mac" name in all of this is squarely to differentiate it from Burger King products. And, of course, there's roughly zero chance of anyone in the public being confused in any way here.

Separately, this again calls to mind our mantra that content is advertising and advertising is content. The reason this campaign is a success goes beyond watching one giant fast food company mock another. Instead, this works because Burger King is clearly having so much fun with it. And it's having that fun in a way that's approachable, snarky, and quite funny. That's all advertising gold, in that it both grabs attention and generates positive reactions with the public, all while messaging a positive difference between Burger King and McDonald's.

So, if the primary fallout from a giant company losing its trademark is this kind of fun, I'm very much here for it.

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Posted on Techdirt - 4 February 2019 @ 1:37pm

Russian Site-Blocking Leads To An Explosion In 'Pirate' Sites, Tiny Dip In Piracy

from the oops dept

Over the past couple of years, we've discussed Russia putting in what is supposed to be an extreme site-blocking policy, in part to curb piracy. There has been a fair amount of mostly anecdotal evidence that has suggested that the video pirate market in Russia has actually increased during this time, while there is very concrete evidence as to the insane amount of collateral damage that the site-blocking policy has caused. Some found this puzzling, but new data out of Russia suggests that the effects on piracy are muted at least in part because of an explosion in new piracy sites or mirrors of blocked sites.

For example, the company says that in 2017, the number of torrent sites offering content to the Russian market sat at around 1,300. However, last year – in the face of overwhelming blocking measures – that number grew to around 2,000.

In 2018, torrent sites accounted for just over a fifth of the ‘pirate’ market (streaming platforms dominate with more than 70%) but due to multiple links to the same content appearing on most platforms, torrent links accounted for around 40% of the available links to pirated material. Further underlining the importance of torrents, despite a smaller share of the market, the company reports that in 87% of cases, the first public copies of premiere titles appeared on torrent sites first, before spreading out to other platforms such as streaming and hosting sites.

Meanwhile, the number of streaming sites increased slightly as well. The report also notes that over all traffic to so-called pirate sites in Russia has "dipped slightly", causing something of a victory cry to come from the content industries with offerings in the country as, I suppose, the overall per-capita, per-site-available piracy rate fell. But, for such a draconian regime, huge amounts of collateral damage coupled with an increase in pirate sites and a tiny drop in traffic to those sites, this isn't exactly a glowing review.

So of course Russia is doubling down on it.

Meanwhile, Russia is further investing in site-blocking with the introduction of a new system. Telecoms watchdog Roscomnadzor reports that to date, 660 large telecoms operators have switched to a new mechanism which allows sites to be blocked more efficiently.

“The new mechanism allows service providers to receive data from the Unified Registry [national blacklist] for only updated or changed entries instead of downloading the entire data set,” Roscomnadzor reports.

This may, again, show a slight increase in the Russian government's effectiveness in its arms race against filesharing sites, but this isn't going to change the fundamental reality that site-blocking is apparently barely effective, with disastrous results for far too many innocent sites.

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Posted on Techdirt - 1 February 2019 @ 7:39pm

The Greatest Trick The NFL Ever Pulled Is Convincing The World It Holds Trademark Rights That Don't Exist

from the in-the-details dept

It's nearly my birthday again, which of course can mean only one thing: we have to write up a post trying to explain to people that the NFL is completely full of shit in what it thinks its trademark on "Super Bowl" allows it to restrict. This has been something of an annual series for us, since the NFL really enjoys pulling out legal threats to bully businesses and churches over using factual phrases that do not in any way represent actual trademark infringement. The NFL certainly can restrict who claims to endorse the Super Bowl, or who can vaguely indicate some affiliation with the NFL or an NFL team, but the league instead likes to pretend that nobody can factually state that there is a thing called a Super Bowl and that it occurs at this time of year.

The output of this game of make believe is the world being a dumber, more cynical place. Businesses everywhere use euphemisms for the Super Bowl, such as "the big game." Everyone knows what the euphemism means, yet the NFL usually lets this kind of thing slide. This myth about what is and is not infringement has in part been perpetuated by non-Techdirt media outlets that parrot the NFL's claims, or at least warn everyone that the NFL is litigious. Which... thanks.

Most recently, this type of parroting comes in the form of articles such as this one, unhelpfully titled "Fear The Shield." To be fair to that post, the whole thing is fairly full of comments from exasperated business owners being confused as to how the NFL can trademark facts when it cannot.

Eithnee Carline is the co-owner of DJ’s Wings in Falmouth and Hyannis. The Hyannis restaurant has been in business for 30 years, she said. She recalled back when some newspaper accounts referred to the establishment as “Super Bowl Headquarters.” Ms. Carline said she is aware that no such verbiage can be used in the business’s advertising for this weekend.

“We use ‘The Big Game.’ Can’t even use Patriots, our favorite football team! Isn’t it crazy?” she said.

The sandwich board in front of the American Legion Post on Shore Road in Gray Gables announces a “SUPERBOWL PARTY.” Similarly, the marquee in front of Dino’s Sports Bar on Route 151 in Mashpee invites people to come watch “PATS-RAMS” this Sunday. Asked about the NFL’s trademark protection of the team names, owner Constantinos (Dino) Mitrokostas said that is why he phrased it the way he did, not using the full name of the Patriots.

“That’s why it says Rams Pats, that answers it all!” he said.

Indeed, except that this is all stupid. Venue owners somehow think that a sandwich board telling patrons to watch the Super Bowl at their establishment is infringement, but it very, very much is not. Business owners think that advertisements that make mention of the Super Bowl's existence without implying endorsement are infringement, but that absolutely are not. And, yet, this has been the un-reality that the NFL has successfully willed into existence with its legal team, aided by paragraphs in media outlets such as this.

Sunday, February 3 is the Super Bowl. As every sports fan knows, the New England Patriots will take on the Los Angeles Rams in what has also come to be known as Super Sunday.

Fortunately, everything written above appears in a newspaper article, and not an advertisement for a business, such as a restaurant or a sports bar. Placing any one of those phrases—Super Bowl, Super Sunday, Patriots, Rams—in an ad of any kind could land the business owner in a heap of trouble with the National Football League. They are all NFL trademarks, and the league charges substantially for the right to use what has been registered for intellectual property protection.

That is the opening frame for the entire post at The Bourne Enterprise (um, the name, guys?), a local "paper" in Massachusetts. And it's at best incomplete and at worst horribly misleading. Using those phrases in an advertisement would not land real legal trouble except under certain circumstances and in certain contexts. In trademark law, the linchpin is public confusion over to the source or affiliation of a good or service or brand. Without that confusion, there's nothing to worry about, and there is nothing confusing about a bar saying that it would be an appropriate place to watch the Super Bowl.

But every year, this is how I spend the run up to my birthday. I'd like to think that this some day will not be the case, but it's more likely that I can expect to be writing this post when I'm old and gray.

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Posted on Techdirt - 31 January 2019 @ 1:34pm

A Teenager Tried To Warn Apple About It's Facetime Security Flaw, But Appears To Have Been Ignored

from the go-to-voicemail dept

By now, you've almost certainly heard about the latest big technology security flaw, in which Apple's FaceTime feature contains a bug that allows a caller using FaceTime to hear through the recipeient's phone while the call was still ringing. This obviously has all kinds of people all kinds of freaked out, since the bug essentially turns any iPhone into a short-burst surveillance bug. This has led some to opine that Apple, which has a fairly decent reputation from a privacy standpoint, is at risk of having that reputation torpedoed over this story.

And that might be all the more the case when the public discovers that Apple was informed of this bug by a teenager and his mother in the weeks running up to the press coverage of it, and did nothing about it.

The Wall Street Journal reports that Grant Thompson, from Tucson, was “setting up a FaceTime chat with friends ahead of a ‘Fortnite’ videogame-playing session when he stumbled on the bug”. It was then that Thompson noticed that he could hear audio from friends who had yet to join the call. Grant quickly told his mother, Michele, and the pair spent a week trying to contact Apple to warn them about the issue.

The WSJ say after some calls and faxes they “eventually traded a few emails” with Apple’s security team, but it wasn’t until reports of the bug blew up on Twitter that the decision was made to disable Group Facetime.

This apparently happened a week or so before this all exploded on Twitter and in the media. We've heard stories like this in the past, of course, but it always amazes me that tech companies aren't better about having a unified message across entire companies that staff should want to report this sort of thing up the hierarchy, and those high-ups should jump on addressing these reports both quickly and publicly. Imagine a world where Apple had lauded this teenager for informing the company about the bug and in which Apple had proactively disabled group FaceTime until the bug was resolved? Apple would have come out looking, once again, as though it were looking out for the privacy interests of its users.

Instead, it sure looks like the company was hoping to stick its head in the sand and pretend the bug didn't exist. Or, more charitably, perhaps the company thought it could simply do away with the bug quietly via an update with vague patchlist notes. Either way, it's not a great look.

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Posted on Techdirt - 30 January 2019 @ 7:57pm

Disney Goes All Disney On The Kingdom Hearts 3 Title Screen Over Streaming

from the house-of-mouse dept

When it comes to the idea of members of the public live-streaming video game gameplay, the world is an unpredictable place. Some developers and publishers are happy to allow such a display of their products, understanding a concept that is apparently difficult for others to grasp: playing a game is a very different thing than watching someone else play it. Those that are less permissive in streaming gameplay are typically the larger corporate interests that tend to believe in control above all else, with the attitude being that unveiling gameplay will make it less likely for viewers to buy a game, rather than more likely. In between is a truly broad spectrum, where some publishers lay out rules on websites and others say little to nothing on the topic that isn't vomited up by their legal teams.

Leave it to Disney, then, to put its stamp on the latest iteration of the Kingdom Hearts series, with a message to anyone that would consider streaming the game right there on the title screen.

People who start playing Kingdom Hearts 3 will find a message notifying them that the companies behind the game are applying some limitations. The game’s title screen includes an unusual button prompt labeled “before you stream.” Pressing the button produces the following message:

This game is a copyrighted work. The copyright is held by The Walt Disney Company and a collaboration of authors representing The Walt Disney Company. Additionally, the copyright of certain characters is held by Square Enix Co, Ltd.

You are free to stream the game in non-commercial contexts. However, using the streams of the game to primarily provide or listen to the music is prohibited even in such non-commercial contexts.

While this is a somewhat permissive stance on streaming, essentially allowing for some streaming under certain conditions, it's still a very Disney way to go about it. First is the company's acknowledgement that streaming is so very much a thing at this point so as to warrant the inclusion of a message on game's title screen. That may seem like a small thing, but it's actually a fairly stark admission on the part of Disney as to what the ecosystem for streaming games is today. And, then, comes the muddled parameters under which streaming is kosher, with restrictions on "commercial contexts", without bothering to provide any context for that phrase itself. And, of course, there is the requirement that game streams aren't done as a method for simply broadcasting the game's original score, which is downright perplexing. I'm not aware of that sort of practice even being a thing and I'm fairly steeped in this world of game streaming.

And I'm not the only one scratching his head at all of this.

The streaming message isn’t exactly crystal clear. One part of it is easily understood: Square and Disney don’t want people making streams of the game’s music. But the statement is more confusing about what the rights-holders consider to be a “non-commercial” stream. The message concludes by directing players to Kingdom Hearts website, which doesn’t yet include any information about this, though it presumably will by the time the game launches in the West on Tuesday (it came out in Japan on Friday).

We asked Square Enix PR yesterday what “non-commercial” streaming would be and if it’s something that average gamers who just want to stream on Twitch or YouTube would have to worry about. They were unable to clarify that terminology yet.

And, so, Disney attempts on the title screen to take the mystery out of what it will allow in streaming the game, but apparently there is still a conversation the company needs to have within itself, as the PR folks can't articulate what it all means themselves. The end result is Disney attempting to assert control over the sharing of parts of its product in the least clear manner possible. It's a very Disney thing to do, in other words.

Meanwhile, it doesn't appear to be keeping the now-normal practice of game streaming from happening overseas.

Whatever the restrictions actually mean, they don’t appear to be stopping people from streaming the game. People have been streaming Kingdom Hearts 3 on Twitch since yesterday, when the game went on sale in Japan and when the the streaming embargo lifted for reviewers and gaming influencers who’d been provided advance access to the English language version of the game. At the time of this writing, there are more than a thousand people watching 88 streams of the game on Twitch.

So, for now, this appears to be a title screen message without much of an audience.

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Posted on Techdirt - 29 January 2019 @ 8:15pm

Developer DMCAs Steam For Hosting Its Own Game To Wrest Control Back From Rogue Publisher

from the clever-girl dept

We've seen plenty of ways in which the DMCA process has been used, and often abused, for purposes not intended by the lawmakers who crafted it. With everything from pure attempts to censor damning information to oblique fuckery heaped upon a competing business, folks have used the DMCA as a blunt tool. Given the context in which this is done, it is nearly always the case that you can't root for anyone issuing those sorts of DMCA takedowns

But perhaps we've found the exception that proves the rule. TorrentFreak has a fascinating story about a game developer that issued a DMCA notice to Steam... for its own game. Why? Well, because apparently that was the only way to wrestle back control over the game's distribution from a publisher the developer says skipped out on the publishing contract.

However, a takedown notice game developer Ammobox Studios sent to Steam recently is far from typical. The company asked the game platform to remove their own game “Eximius: Seize the Frontline” after it ran into trouble with its publisher. According to the game developer, the publishing partner, TheGameWallStudios, went dark and stopped making payments.

“Long story short, we had to file a DMCA against our very own game on Steam to wrest it off the Publisher. The DMCA has just kicked in resulting in the game being taken off the Steam Store Page,” Ammobox explained.

So the timeline goes like this. Ammobox gets a publishing contract for the game with TheGameWallStudios. TGWS puts the game up on Steam. TGWS then, according to Ammobox, goes silent on the payments it was to make to Ammobox, but still has the game up on Steam's store, generating sales and money. With the contract breached, TGWS has no right to publish the game, which suddenly reverts to being a "pirated" version of the game. Ammobox issues the DMCA to Steam and the game comes down.

To add just one more good guy to this story, Steam itself apparently was very helpful to Ammobox, even after receiving the DMCA notice.

The game was removed from the store for over a week. While it was no longer for sale, people who previously bought it could still pay it. Then, after nearly two weeks, the developers regained control of their own game, with help from Steam.

“The fraudulent publisher Thegamewall has been removed as publisher in our Steam store page. We would like to thank Steam for assisting us during this terrible ordeal,” Ammobox announced this week.

Now, Steam has a reputation, arguably deserved, of being far more friendly to publishers than developers. At some level, this makes sense, as publishers are generally the customer/partner of Steam's as opposed to the developers. For Steam to, in this case, recognize that the developer had been wronged and to work directly with the developer to get the game back up with payments flowing to the proper recipient ought to be getting the attention of developers all over the place.

Meanwhile, Ammobox still has to resolve the owed payments from TGWS. But at least they get a nod for a creative non-dickish way of using the DMCA process.

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Posted on Techdirt - 25 January 2019 @ 3:29pm

Foreign Stream-Ripping Site Wins Against Music Labels Based On Jurisdiction

from the not-like-this dept

It's been quite frustrating to watch the music industry continually turn its legal gaze to whatever it insists is the "new" threat. From the traditional piratey-scapegoats like Napster, to torrent sites, and on to file-lockers, before finally moving over to stream-ripping sites -- it's been quite predictable, if a bit silly. As with so many industry-led crusades against technology tools, this attack on these types of sites carries with it the misguided notion that because a site or tool can be used to infringe on music copyrights, it therefore is an enemy and must be shut down entirely. We've seen this same tactic used against tons of technology tools that have had perfectly legal uses in the past, but in the case of stream-ripping sites, most have decided to simply fold.

Which makes it somewhat noteworthy that one foreign site is fighting back and winning against a legal challenge in the US, if only on jurisdictional grounds.

FLVTO.biz and 2conv.com, owned by Russian developer Tofig Kurbanov, remained online despite being sued by several record labels last August. Where other site owners often prefer to remain in the shadows, Kurbanov filed a motion to dismiss the case. According to the defense, the court has no jurisdiction over the matter. Only a small fraction of the visitors come from the US, and the site is managed entirely from Russia, it argued.

The RIAA labels involved in the suit disagreed, of course. As with all lawsuits of this kind, the labels merely see a tool that American users can get to, and can use to infringe, therefore it must be killed off. FLVTO pointing out that it doesn't do anything to entice American users to its site, nor does it engage in any commercial activity on the site other than displaying advertisements, did nothing to keep the RIAA from suing. It did, however, convince the judge to toss the case on jurisdictional grounds.

“Even if the Websites’ servers knew exactly where the users were located, any interaction would still be in the unilateral control of the users as they initiate the contacts,” Judge Hilton’s opinion reads.

There could be personal jurisdiction if there’s a “commercial contract” involved. However, that’s not the case here. The site generates revenue from users through advertisements, but that’s not seen as a basis for a commercial contract, the court concludes.

In other words, an American company can't sue a foreign operator in the US simply because the internet works as intended.

While this is a good ruling generally, it might be nice to get the courts to establish some clarity on the legal status of stream-ripping sites. Again, these are essentially dumb sites that don't care whether the rip is infringing or not. They are a tool, nothing more. Given that, the fact that these sites are shutting themselves down under the mere threat of lawsuits represents a pretty clear chilling effect on the dissemination of otherwise legal tools and technology to the internet writ large.

This is especially true given that we already have a pretty clear precedent for this issue. Stream ripping is little different from the VCR in effect. It is taking a "stream" of live content, and "recording" it for personal use and storage. Thirty-five years ago, the Supreme Court made it clear that this was perfectly legal in the famous Sony Betamax case. In that case, the court found that there were substantial non-infringing uses of the technology -- as is true of stream rippers -- and that "time shifting" of content that was being streamed live was a perfectly legitimate use. As the ruling in the Betamax case found:

The question is thus whether the Betamax is capable of commercially significant noninfringing uses. In order to resolve that question, we need not explore all the different potential uses of the machine and determine whether or not they would constitute infringement. Rather, we need only consider whether, on the basis of the facts as found by the District Court, a significant number of them would be noninfringing. Moreover, in order to resolve this case, we need not give precise content to the question of how much use is commercially significant. For one potential use of the Betamax plainly satisfies this standard, however it is understood: private, noncommercial time-shifting in the home. It does so both (A) because respondents have no right to prevent other copyright holders from authorizing it for their programs, and (B) because the District Court's factual findings reveal that even the unauthorized home time-shifting of respondents' programs is legitimate fair use.

It is difficult to see how that same standard does not apply to stream ripping as well -- but so far, the RIAA (in particular) is acting as if the Supreme Court ruled the opposite way in the Betamax case, and because many of these sites are small, they have little desire to actually fight a huge, costly legal battle. And thus, the RIAA has mostly been able to kill off the modern VCR. This case turned on jurisdiction issues, which is a good start, but a clear ruling that stream ripping is legal, a la the Betamax, would be even better.

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Posted on Techdirt - 24 January 2019 @ 7:16pm

YM Inc. Beats Roots Inc. In Trademark Suit Over Two Logos That Don't Look Anything Alike

from the cabin-fever dept

In far too many of the trademark disputes we cover here, those disputes center around two competing logos or trade dress that look nothing alike, save for one very generic component. To get a sense of what I mean, you can refer back to the Chicago Cubs and Washington Nationals bullying a financial services company because its logo used a capital "W." Or the time one sausage company sued another because both logos had, sigh, a pig in them.

Or, now, when clothier Roots Corp. tried to nullify a trademark held by YM, Inc. because both had clothing lines with logos that included log cabins.

Roots had applied to strike YM’s registered trademark for a logo that featured a cabin surrounded by two trees and the words “Cabin Fever” beneath it, arguing that it was invalid for several reasons. According to a federal court document, Roots said the logo was confusing with its existing trademarks, that the YM Inc. trademark was not distinctive, and that the mark was only being used on some of the goods listed in the application. YM disputed all of Roots’ arguments.

And it's easy to understand why the moment you take a look at the two logos in question.

Here again we have one single aspect that can be said to be similar about each logo: both include a cabin set against trees. Beyond that, nothing else is similar. The cabins themselves aren't similar. Neither are the trees. Nothing in the rest of the images -- from colors to shapes to wording to font -- is even remotely similar. It's enough to make you wonder if any public confusion was really the worry here, or if this was just one rival clothing company trying to push around another.

It seems the judge overseeing the request had similar concerns.

In the end, Federal Court Justice George R. Locke dismissed Roots’ application to strike YM’s trademark registration, concluding that the rival’s mark “was not confusing” with any of the Roots’ cabin-related trademarks, despite some similarities in the trademark and products sold by both companies.

“The cabin image itself used in YM’s Cabin Fever Design Mark is not particularly similar to either of the cabin images used by Roots,” Locke wrote in his January 8 decision, adding that using an image of a cabin was “no more distinctive” than using the word cabin.

“The word ‘cabin’ suggests a small house in the woods, and trees are inherent in such an environment. It is not distinctive to incorporate trees in an image of a cabin.”

Roots also suggested that YM's entire trademark should be cancelled because it had applied for the mark with far more market designations than it was in fact using. The judge disagreed, however, taking the much more common sense approach of simply limiting the trademark to the markets in which YM is using it, of which there are something like ten. This again seems to indicate that this is all simple bullying, rather than any true concern for customer confusion.

And so we end up with a good ruling, one which actually takes care to address the tests for trademark infringement rather than simply looking at two logos that both have log cabins and deciding that infringement must have occurred. It would have been nice for the legal staff at Roots to have taken such care as well.

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