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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.

https://www.smashwords.com/books/view/112205

http://www.amazon.com/Midwasteland-ebook/dp/B004THD8SQ/ref=sr_1_1?ie=UTF8&qid=1345132753&sr=8-1&keywords=timothy+geigner

http://www.amazon.com/Echelon-Timothy-Geigner/dp/0557589266/ref=sr_1_2?ie=UTF8&qid=1345132753&sr=8-2&keywords=timothy+geigner



Posted on Techdirt - 22 September 2021 @ 7:40pm

Billy Mitchell Lets His Site Lapse, With A Critic Of His High Score Claims Swooping In To Take It Over

from the whoops dept

It's been a minute since we last discussed Billy Mitchell, the man with the self-propelled reputation as an immense gamer with many high scores on record. He has also demonstrated a willingness to be quite litigious towards anyone who disagrees with this assessment of his gaming prowess. A couple of years back, he threatened to sue the Guinness Book of World Records for -- checks notes -- , huh, defamation. This defamation appeared to amount to the GBoWR rescinding his "record" for a high and perfect Pacman score, noting that there were evidenced claims that Mitchell had not earned the videotaped score on an official arcade cabinet, but rather using an emulator. These records were later reinstated, with GBoWR indicating it didn't have enough evidence to refuse the record. Mitchell also sued Twin Galaxies, an organization that acts as something of an arbiter for gaming records like this. That case failed to get dismissed on anti-SLAPP grounds and appears to still be active.

As does the website Mitchell setup to proclaim his own glory, it seems, though it appears that Mitchell let his registration for the site lapse and now it is under decidedly new ownership.

If nothing else, you’ve gotta respect the bit. Billy Mitchell, the so-called “video game player of the century,” appears to have let ownership over his old website, perfectpacman.com, lapse some years ago. Now someone else has commandeered the domain, and is using it to publish a multipart investigation into the oft-questioned legitimacy of Mitchell’s world-record Pac-Man scores.

"Welcome to our new blog, www.perfectpacman.com. This blog will be dedicated to gaming related topics of interest to us. If you like what you see, just give us a whistle! Disclaimer: The new site administration has no affiliation with any liars and/or cheaters and/or narcissistic frauds who may have owned this web domain in the past. But we appreciate the free advertising lol."

The author of the posts has kept their identity hidden, but each subsequent post is part of a currently six-part series that is entirely dedicated to the claim that Mitchell's Pac-Man record is illegitimate. Many of those posts are also mirrored in a way on the Twin Galaxies website, which is sure to cause a great deal of ruckus within the ongoing litigation, though those Twin Galaxy posts appear to be user-generated, rather than official posts on the site. The posts on either site are incredibly detailed.

Since it’s still a work in progress and covers a very contentious subject, the veracity of many aspects is up for debate. But while it’s hard to miss that Walter C. has an axe to grind with the famous Pac-Man / Donkey Kong player, it’s not like controversy surrounding some of Mitchell’s claimed achievements hasn’t been piling up over the last decade, either. If you’ve time to kill, you can read the series here—parts one, two, three, four, five, and six are currently up—and judge for yourself. Fair warning: Each section is looong.

Now, none of this is to say that these posts by whoever took over Mitchell's own site prove that Mitchell did anything untoward. But it sure does make one wonder why someone so obsessed with the world believing his claims about video game records couldn't also ensure that his website making those claims was maintained in his name.

And, frankly, if this lawsuit can ever make it to the point where discovery is fully conducted and the public gets to see evidence presented on both sides... well, grab a bucket of popcorn.

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Posted on Free Speech - 21 September 2021 @ 8:41pm

North Carolina Sued By Flying Dog Brewery Over Regulatory Body Refusing To Allow Sales Due To 'Offensive' Label

from the it's-just-a-penis,-guys dept

Normally, when we talk about beer in these pages, we're typically talking trademark infringement issues. Because of the creative way those in the exploding craft brewing industry have gone about naming their brews and designing their labels, far too often this results in disputes between parties over what is too similar to what, or who's design is too close to another's. While this specific story doesn't involve trademark law or disputes, it does still exist due to the creative practice of labeling.

Flying Dog is a well known name in the craft beer industry. Not huge, but certainly not small, Flying Dog's labels have a certain aesthetic motif in the artwork that is easily recognizable. As part of the process for using those labels on cans and bottles of beer, the brewery has to gain a certificate of label approval from the ATF. It also then has to gain the approval for labels from individual state agencies as well. For its forthcoming "Freezin' Season" ale, Flying Dog was able to get the afore-mentioned approvals at both the federal and state levels in every case, except for North Carolina. There, the North Carolina Alcohol Beverage Control Board (ABC) denied approving the label, thereby disallowing Flying Dog to sell bottles within the state entirely. Why? Well...

Still having trouble figuring out what the problem is? Well, it's that little protrusion from between the outlined figure's legs. Is it a penis? Gasp! Maybe! Flying Dog hints that it's actually a little tail nubbin, but I'm not sure I believe them. Nor does that really matter, actually, since this beer label is absolutely constitutionally protected speech and the ABC's refusal to permit its sale in commerce not only serves as a violation of Flying Dog's speech rights, but also is prior restraint.

The offending label—like all Flying Dog beers—contains a distinctive cartoon image by illustrator Ralph Steadman, whose work with the Maryland-based brewery dates back to its roots in the gonzo-lands near Aspen, Colorado. It's not clear exactly what the state's regulators object to—though the naked, humanoid figure on the beer's label does sport a small appendage between its legs. Caruso says he suspects that "tail-like thing" is what triggered the ban.

"The regulation is, on its face, in constitutional 'bad taste,' as it is in clear violation of the First Amendment," attorneys for Flying Dog, including veteran First Amendment lawyers Greg Doucette and Marc Randazza, argue in court documents. They say banning the beer label is an unconstitutional viewpoint-based restriction on speech, similar to restrictions that the U.S. Supreme Court has repeatedly struck down.

It's hard to imagine what the counterargument in court will be, honestly. The puritanical viewpoint of North Carolina's ABC ought have no bearing on whether or not another entity's speech rights should be infringed. Given the approval for the label in literally every other state and the federal government, it's difficult to see how the state could even mount a serious case that there is anything offensive here.

Thine own eyes should have you reaching the same conclusion. Even if we assume that the depiction includes a small, cartoon penis, it's certainly not pornographic in nature. Nor is it detailed enough to warrant concern amongst anyone at all. It's just a tiny blip on the artwork of a beer label.

And, yet, it appears this is a regular thing in North Carolina.

This is not the first time that North Carolina's beer regulators have attempted to censor a product being sold in the state. WECT Channel 6, based in Wilmington, North Carolina, reported in 2019 that the state ABC had blacklisted about 230 beer and wine brands since 2002 for having labels or names that offended the board's sensibilities. Among the "inappropriate" products banned from the state are beers with names like "Daddy Needs His Juice," and "Beergasm."

Ironically, the North Carolina ABC reportedly told Utah-based Wasatch Brewing Company that its "Polygamy Porter" could not be sold in the state because "polygamy is illegal." But the board also banned a beer named "Kissing Cousins" despite the fact that it is literally legal to marry your first cousin in North Carolina.

This is all very, very funny, but it's also a very real problem for Flying Dog. In its suit (embed below), Flying Dog states that it is currently taking orders on the seasonal beer in preparation for the winter months and it cannot currently sell in North Carolina due to all of this. Given that it also states that bottled beer is 90% of the company's business, even a single brew being disallowed in a single state means we're talking about very real money.

This lawsuit should be a fairly easy winner. And, frankly, it appears as though it's well past time that North Carolina get a lesson in free speech when it comes to beer labels.

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Posted on Techdirt - 20 September 2021 @ 8:24pm

Turner Entertainment Forces Name Change Of 'Surrender Dorothy' Beer, Which Isn't Actually Referencing Wizard Of Oz

from the surrender-indeed dept

It won't come as a total surprise that we have covered intellectual property stories involving The Wizard of Oz in the past. Both the book and film are iconic to say the least, so it would perhaps be a bit strange if such issues didn't arise from time to time. That being said, the relevant players here tend to be on the extreme end of the enforcement spectrum, which leads to extreme cases such as Warner Media opposing a trademark filing by a self-proclaimed "wicked witch" for some reason.

The point is that the IP holders for the film tend to see anything remotely resembling a reference to the film as infringement of some kind or another. A recent example of this is Turner Entertainment, part of Warner Media, forcing 7 Locks Brewing to change its name and branding of its beer "Surrender Dorothy."

What was originally known as “Surrender Dorothy” is now simply called “Surrender.” The Wicked Witch won and 7 Locks had to throw in the bar towel. In this case, it was Turner Entertainment that was no friend of Surrender Dorothy. Its lawyers dropped a house on 7 Locks Brewing’s effort to trademark the name of their signature beer. (I think I may have mixed metaphors there.)

“Basically, Turner owns the rights to ‘The Wizard of Oz,’ ” said Keith Beutel, co-founder of 7 Locks. “They claimed that we were using the term ‘Surrender Dorothy’ and they didn’t want any confusion with their branding.”

It wasn’t just the name. It was the design on the can, too, which featured a curvy yellow thoroughfare that the media giant insisted was too similar to the “Yellow Brick Road.”

So, "Surrender Dorothy," a yellow road, and also on the label that road leads to a castle or palace with several large spires. I know what you're thinking: those sure sound like references to Oz. But, no, it's actually a reference to a famous story and prank that occurred in the DC area, where 7 Locks is located. The castle spires aren't Oz; they're the Mormon temple. The yellow road isn't the yellow brick road; it's the Beltway. And the Dorothy? Well, that was the prank I mentioned.

A refresher for anyone unfamiliar with how the beer got its name: For years starting in the 1970s, graffiti would show up on a railway bridge over the Capital Beltway just west of Georgia Avenue. As motorists drove around the Outer Loop, the Oz-like spires of the Mormon temple looming ahead, they’d see “Surrender Dorothy.” It was a bit of whimsy, refreshed whenever it was painted over by CSX, the railroad whose trains use the bridge.

I’ve never been able to find out who first daubed the bridge with that expression, but I did find their inspiration: Catholic schoolgirls who had earlier created a temporary “Surrender Dorothy” message by stuffing wadded-up newspaper in the chain-link fence of a nearby vehicle bridge.

So there's a semblance of a reference to Dorothy from Oz, but it's a 2nd degree reference at best. It's not the brewery's fault that the temple and beltway look so much like Oz that they served as this inspiration. And that's not actually the point of 7 Locks' label. The point is in homage to a local legend of sorts.

But, because trademark bullying works, and even though some commentators believe the brewery could prevail if it fought, the "Surrender Dorothy" branding has been, well, surrendered. But not without a bit of a middle finger on the brewery's new label.

So the new beer is called simply Surrender. The image on the can — unveiled early in the summer — still features the Mormon temple, but the Beltway is gray, not yellow. And the graffito on the bridge over it is being painted over by a man in a hard hat. All you can see are the letters “DORO . . .”

What a great victory for Warner Media...

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Posted on Techdirt - 17 September 2021 @ 7:39pm

Judge In Scouts BSA Trademark Case Says He's Going To Rule In Scouts BSA's Favor On Summary Judgement

from the scout's-honor dept

Well, well, it appears that this particular story is going to move faster than I had thought. And, to be frank, I kinda sorta get it. We had just discussed Scouts BSA, formerly The Boy Scouts of America, seeking summary judgement in the trademark suit brought by The Girl Scouts of America. You can go back through the old posts for the detailed context, but the short version is that the Boy Scouts decided girls aren't as icky as they previously thought and rebranded as Scouts BSA to be more inclusive. This created a bunch of confusion with The Girl Scouts, some of it very much due to the actions of local Scouts BSA chapters, such as:

-“As a result of Boy Scouts’ infringement, parents have mistakenly enrolled their daughters in Boy Scouts thinking it was Girl Scouts,” the lawyers said, adding that this never occurred before 2018.

-The lawyers said Boy Scouts councils in Illinois acknowledging improperly using the Girl Scouts’ slogan in Cub Scout recruiting materials and pictures of Girl Scouts to promote a Boy Scouts “Scouts Sign-Up Night!”

-They said a western Massachusetts Boy Scouts council posted a recruiting flyer on Facebook including a photograph of a girl depicted in her Girl Scouts Brownie uniform.

-Meanwhile, Ohio Boy Scouts used the Girl Scouts trademark to try to get a local newspaper to write an article, suggesting a storyline entitled “Boy and Girl Scouts Looking for Members” even though the recruitment involved only the Boy Scouts, the lawyers said.

-Minnesota families looking to sign up their girls were erroneously told the Girl Scouts and the Boy Scouts have merged. Meanwhile, in Indiana and South Dakota, some parents mistakenly signed up their daughters to girls’ programs in the Boy Scouts.

It was due to those real examples of confusion that I had predicted the judge in the case would not rule for Scouts BSA on summary judgement... but it appears I was wrong. And perhaps specifically on the trademark question, the judge is right when he spoke openly about his intention to find in favor of Scouts BSA.

A Manhattan federal judge said Wednesday during a hearing that the Boy Scouts of America didn't infringe the Girl Scouts' trademarks by using the term "Scouting" to advertise to girls.

Senior U.S. District Judge Alvin Hellerstein in what he called "temporary findings," said he planned to rule for the Boy Scouts on its summary judgment motion, finding the group can use the general word "Scouting" to describe its co-ed programs without causing confusion with the Girl Scouts.

"'Boy Scouts' is a brand, 'Girl Scouts' is a brand, but 'Scouting' alone is an activity," Hellerstein said.

And he's right about that. The truth is probably that nobody should have a trademark on the term "scouting". It's entirely descriptive of what the organization is and does. If this ruling is centered strictly on the claim of trademark infringement, I can see it making sense.

Which leaves the issue of the actual customer confusion here and what to do about it. The GSA notes as much itself.

Ewing responded that the Girl Scouts weren't trying to stop the Boy Scouts from offering services to girls, and only wanted to stop the Boy Scouts from causing confusion.

"The issue is unfair competition and the way in which Boy Scouts is marketing and branding its services – it is not doing so in a way that communicates to the public who the sponsor is and what the organization is, and the law allows a remedy for that," Ewing said.

Given the examples of confusion born from the tactics of Scouts BSA marketing, it appears there would be a valid trademark infringement claim based on those actions, just not for the use of "scout" or "scouting" in general.

Regardless, it appears the court is going to rule for Scouts BSA on this suit. I imagine the GSA may want to file suit instead for the individual infringement claims based on the marketing material, which I cannot imagine Scouts BSA winning at the summary judgement phase.

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Posted on Techdirt - 16 September 2021 @ 8:34pm

CD Projekt Red Issues Trademark Strike For Board Game With A Cyberpunk Theme On Itch.io

from the seeing-red dept

Way back in 2017, years before CD Projekt Red released Cyberpunk 2077 in a poor enough state so as to kickoff lawsuits from investors and a shitstorm of criticism by the public, we discussed how CDPR had acquired the US trademark for "Cyberpunk" in its licensing arrangements and then applied for a mark on the same term in the EU. The problem, of course, is that "cyberpunk" isn't just the name of a series of tabletop and video games, but also the name of a broad genre of fiction. These are trademarks that should never have been granted, as they are akin to getting a trademark on something like "True Crime". Plenty of folks in American and the EU cried foul over this, leading to CDPR putting out a statement that, among other things, noted that the company is not a trademark bully and would not be aggressive in enforcing the mark for unrelated projects in the cyberpunk genre. Pay special attention to the tweet from CDPR below in the section headed "What does it mean that CD Projekt owns the trademark for "Cyberpunk"?

That's a pretty clear commitment that CDPR wouldn't prevent others from creating games or content in the cyberpunk genre, right? Well, intentionally or not, it appears that CDPR did not keep to this commitment, as at least one indie tabletop game developer on Itch.io has now had a trademark claim issued against his game, which has nothing to do with Cyberpunk 2077 and is instead just a game in the cyberpunk genre.

In a post published on Twitter recently, user and game developer Ethan H. Reynolds has struck out against CD Projekt Red, the studio behind Cyberpunk 2077, after their own game, Neon Nights, was issued with a trademark strike. The strike claims that Reynolds' game, specifically the artwork, is alleged to be "violating rights" despite the fact that their game is not related in any way to Cyberpunk. Reynolds says in their tweet that this could be down to a corporate bot that simply scans for the word "cyberpunk" despite the fact that, according to the tweet, the word can relate to a genre as well as a specific game name.

That's simply not an excuse that works. Not in general and most certainly not in this case, with CDPR having publicly stated that its mark wouldn't be used in this way. If it really was some bot that saw the description of the game and struck out due to it being in the cyberpunk genre, that really isn't any better. The end result is still the same: CDPR is enforcing its trademark in a way that is impeding the ability of others to create content in the cyberpunk genre.

If I had to guess, I would agree with Reynolds that an automated system is likely the culprit here. But that too is on CDPR for using that system. And Reynolds is rightly pissed.

The indie developer goes on to say that they have tried to support CD Projekt Red in the past, particularly when it comes to their games, but now says "no more" to defending the company. It does seem as though this could be a case of mistaken identity. According to the game's page on Itch.io, Neon Nights is a tabletop role-playing game that just happens to have a "cyberpunk/dystopian" theme, and is not related to CDPR's title.

And who can blame him for being angry? Why should fellow creatives have to navigate trademark claims against their projects just because CDPR insisted on getting a trademark for a generic name of an entire genre of fiction? Why should anyone look kindly on the company that promised this wouldn't happen only to let it happen anyway?

And, since it failed to keep that promise, why shouldn't we start asking once again why this trademark was applied for and approved in the first place?

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Posted on Techdirt - 15 September 2021 @ 8:17pm

Scouts BSA Seek To End Girl Scouts' Trademark Lawsuit By Brazenly Claiming No Confusion Does Or Will Exist

from the scout's-honor dept

We've been covering the lawsuit brought by The Girl Scouts of America against Scouts BSA, formerly The Boy Scouts of America, for some time. In the two posts that covered the suit, the GSA has alleged all kinds of very real confusion in the marketplace for female scoutting as a result of the branding change by Scouts BSA, which include:

-“As a result of Boy Scouts’ infringement, parents have mistakenly enrolled their daughters in Boy Scouts thinking it was Girl Scouts,” the lawyers said, adding that this never occurred before 2018.

-The lawyers said Boy Scouts councils in Illinois acknowledging improperly using the Girl Scouts’ slogan in Cub Scout recruiting materials and pictures of Girl Scouts to promote a Boy Scouts “Scouts Sign-Up Night!”

-They said a western Massachusetts Boy Scouts council posted a recruiting flyer on Facebook including a photograph of a girl depicted in her Girl Scouts Brownie uniform.

-Meanwhile, Ohio Boy Scouts used the Girl Scouts trademark to try to get a local newspaper to write an article, suggesting a storyline entitled “Boy and Girl Scouts Looking for Members” even though the recruitment involved only the Boy Scouts, the lawyers said.

-Minnesota families looking to sign up their girls were erroneously told the Girl Scouts and the Boy Scouts have merged. Meanwhile, in Indiana and South Dakota, some parents mistakenly signed up their daughters to girls’ programs in the Boy Scouts.

Those appear to be verifiable, real-world claims of confusion as a result of the BSA rebranding to a more generic name, all in the context of a world where the BSA and GSA have long been separated along gender lines. Why it should be any surprise that confusion exists here is beyond me. It seems like roughly the most predictable thing in the world to have happened, particularly when you account for the actions of local Scouts BSA organizations that seemed to actively attempt to instill such confusion.

In fact, perhaps the most surprising thing now is that Scouts BSA is asking a judge for a summary judgement that no confusion has or will exist.

U.S. District Judge Alvin Hellerstein in Manhattan will hear oral arguments on the Boy Scouts' motion for summary judgment, in which it argued that rebranding as "Scouts BSA" and advertising to girls won't cause confusion with the Girl Scouts.

The Boy Scouts said in a statement that it has been clear that the groups are separate organizations, and trusts that "families choose organizations for their children with great care." Rachel Kassabian of Quinn Emanuel Urquhart & Sullivan represents the Boy Scouts.

This is belied, again, by the examples of confusion that have not been specifically refuted as well as some of the confusion-inducing actions taken by Scouts BSA local chapters. It's also a simple matter to remind the public that the BSA has itself been extremely protective of all manner of its IP in the past, making this not solely a story about spurious claims of non-confusion, but also one of hypocrisy.

We'll await the ruling by the judge on this motion, but it would be very strange if Scouts BSA prevailed.

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Posted on Techdirt - 14 September 2021 @ 8:42pm

Kickstarter For Hand-Drawn Video Game Manuals Shuts Down Due To IP Threat

from the book-burning dept

You may recall that about a year ago we discussed one man's attempt to digitize the game manuals for really old games. Notably, that project didn't appear to face any threats over copyright laws by the normal companies -- Nintendo, Konami, etc -- though that almost certainly was partially the result of the project not being a commercial endeavor, but a simple attempt at art preservation that would clearly be covered by fair use. But the overall point is that there is a thirst for this sort of thing, especially when you realize that some of these game manuals are endangered species, close to being lost for all eternity.

Well, apparently there is at least one company out there that is not so keen on letting something similar to that go forward if it means anyone is going to collect money over it. A Kickstarter for hand-drawn recreations of the sorts of video game guides that were popular decades ago, which far exceeded its initial goal, voluntarily shut itself down after facing unspecified legal threats.

Near the end of a staggeringly successful Kickstarter campaign, Hand-Drawn Game Guides was cancelled. Philip Summers, the individual behind this campaign, cancelled his Kickstarter due to legal pressure from unknown parties. In a statement released on Hand-Drawn Game Guides' Kickstarter, Summers says:

"Tonight I pulled the plug on the Hand-Drawn Game Guides Kickstarter. Yes, for exactly the reason you think it’s for. I had hoped that I could successfully navigate any legal trouble, but alas I wasn’t able to do so."

Summers made it clear elsewhere that none of this was unforeseen, nor is he particularly angry about it. The source of the legal threats was never specified, but it's clear that Summers is facing some kind of copyright or trademark threat by one of the gaming companies that owns the rights for the games he's creating new manuals/guides for. It could be one of many companies, of course, though it won't surprise regular readers here to learn that I very much suspect it's Nintendo. If it is, the company can certainly argue it has a valid copyright claim on these manuals, assuming it has the relevant IP rights for them. But, as is always the question, why does Nintendo or whichever company made these threats feel the need to go this route?

Summers started his campaign seeking $20k, but ended up amassing over $300k in pledges for the project, all for hand-drawn video game guides for very old games.

Summers' guides deal with IPs by Nintendo, including The Legend of Zelda and Metroid. Just recently, Nintendo issued a cease and desist for Metroid Prime 2D, a game starring Samus Aran and based on the Metroid series, and not long ago they hit The Legend of Zelda: The Missing Link a fan-game that bridged Ocarina of Time and Majora's Mask. Contra and Ninja Gaiden guides backers could have purchased, so legal pressure Konami, Koei Tecmo, or Nintendo is possible but not confirmed by any party. As we've seen previously, fan-made projects ending due to legal reasons is nothing new for the industry.

This campaign aimed to bring guides of retro video games to the masses, which were completely hand-drawn and went over the workings of each title. This included tips and tricks, maps of dungeons and other levels, and more.

If there is an actual threat in any of that to any of the named companies, I am failing to see it. Instead, I only see the desire for total control over intellectual property playing out in such a way so as to destroy an otherwise wildly successful Kickstarter by someone who is obviously a very big fan of retro video games and the guidebooks of the past. And if that doesn't sound like Nintendo, I don't know what does.

For now, Summers and his publisher are making it clear that the project isn't necessarily 100% dead, asking backers to stay tuned. But in the meantime, the funding for the Kickstarter has been canceled, all because someone had to kill the fun.

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Posted on Techdirt - 10 September 2021 @ 7:39pm

Huge GTA4 Mod Started In 2014 Shuts Down Due To 'Hostility' From Take-Two Interactive

from the mod-squad dept

For some reason, it seems that there is an industry issue heating up among video game developers and publishers over their modding communities. We've begun to see a flurry of stories on the topic lately and perhaps the most impressive thing about those stories is how wildly binary they are. Nintendo tends to Nintendo, for instance, where control is valued over building a community of fans. Other publishers, like CD Projekt Red and Bethesda go the completely opposite direction and not only embrace the modding communities for their games, but also sometimes simply hire talented modders directly to their payroll.

Take-Two Interactive, the publishers of the Grand Theft Auto franchise and the subject of this post, has a history of bullying ambitious modders into shutting down. The company has recently put this practice into overdrive, going after all kinds of modding teams working on current and past GTA games, with the speculation being that it's all being done because of a forthcoming remaster of some of those older games.

Well, the hostility has gotten bad enough that some fan-run projects are simply shutting down before the legal threats start flying. That appears to be the case with an incredibly ambitious mod for GTA: San Andreas.

As a result of this hostility, GTA Underground lead developer dkluin wrote in a post yesterday on the GTAForums that they and the other modders working on the project were now “officially ceasing the development” of GTA: Underground.

“Due to the increasing hostility towards the modding community and imminent danger to our mental and financial well-being,” explained dkluin, “We sadly announce that we are officially ceasing the development of GTA: Underground and will be shortly taking all official uploads offline.”

The mod had aimed at putting all the historical cities from GTA games on a single map, while also developing new home-grown cities for people to play in. Work on it began in 2014, when dkluin was a teenager. As is so often the case with this sort of thing, this was a labor of love by a modder and a community that clearly love the GTA games. But, with Take-Two again set to release a bunch of GTA remasters sometime in the future, the lawyers have been sic'd on all kinds of mods.

In its fair well video by dkluin, where they announce the end of development and then thank all who contributed to it, the comments were almost universally negative towards Take-Two. Examples include:

  • I hate how anti-modding Take2 is towards modding, even for games that are nearly two decades old
  • Been watching this since evolve since 2014. Truly tragic, I don’t even see the benefit of shutting these mods down from a business end unless T2 wants to achieve this same goal GTA Underground has but from a profit angle. But they’d never put all the cities from the 3D era in one map/client, so I don’t understand the move. This is like watching part of my teenage years die. I was 17 when I subbed to this channel, I am 25 now.
  • One of the best mods we can see out there and this is the result, I hate Take-Two

It goes on from there, with hundreds of comments. Now replicate this anger across all the different mods that were developed or in development for a game that came out nearly 20 years ago. All of that very real anger felt by very real fans of GTA and all directed towards Take-Two is going to have some impact on the public's willingness to keep buying Take-Two games.

Apparently the company is betting that such anger is not enough to outweigh the profits gained by remastering old GTA games and exerting strict control. I have my doubts that this was the best route for Take-Two to go.

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Posted on Techdirt - 9 September 2021 @ 7:44pm

Another Mod War: Jagex Demands Shutdown Of HD RuneScape Mod, Retracts After Public Backlash

from the mod-squad dept

The gaming industry modding wars continue. We had recently discussed Nintendo's continued war on anyone who mods its games, including shutting down tournaments for incredibly minor uses of mods that make those tournaments possible. We've also been discussing Take-Two's attack on its modding community for the Grand Theft Auto franchise. On the flip side, companies like CD Projekt Red and Bethesda have so embraced their own modding communities as to have hired some of them onto their teams as salaried employees.

I have no idea why this has suddenly become a thing over the past several months, but these binary stories are coming far more frequently than they previously did. Everyone is in one camp or the other: embrace the modding community of fans or smack them around. There is a correct answer to all of this, of course, and it seems clear that the answer is to treat your greatest fans in a way that is cool and human. Nintendo, giant in the industry as they might be, loses good will and gains little by exerting strict control over how its games are played. Take-Two, same story. Meanwhile, those that embrace their biggest fans get to keep their games relevant for longer through mods, build up good will with their customers, and even get to pull from a talent pool that materializes all on its own.

But some companies just don't get it and have to be educated in the court of public opinion. Jagex, makers of RuneScape, are just such a company. Just days ago, the company announced a shutdown of a major RuneScape mod that would bring HD graphics to the game, called Runelite HD. It was scheduled to be released on 9/8/21, but then...

In this blog we’d like to clarify our stance on third-party HD clients (and other projects which seek to radically change the visual appearance of the game). We know you’ve got lots of questions about them, and we think this will provide you with all the clarity we need.

Yesterday we contacted the developers of known HD projects and we asked them to stop development of their projects, because this is a project we are directly investigating at Jagex. We look forward to being able to share progress as our own in-house project with Old School’s visuals unfolds.

As Kotaku notes, there are a couple of problems with this. First off, nothing in what Runelite HD offers appears to violate the modding guidelines that Jagex has published. So, mods are allowed under certain rules, and Runelite HD developer 117 appears to have followed those rules, but the project was still shut down the day before its release. Second, based on 117's own public statements, Jagex's plan to have a graphical update to RuneScape was still essentially in the exploratory phase, leading 117 to offer a simple solution.

I offered a compromise of removing my project from RuneLite once they are ready to release theirs, in addition to allowing them collaborative control over the visual direction of my project. They declined outright.

So, it appears that this is the end. Approximately 2000 of hours of work over two years. A huge outpouring of support from all of you. I could never have imagined the overwhelmingly positive response I’ve had to this project.

Jagex outright declined... and RuneScape fans absolutely lost their minds. And, as a result of in-game and IRL protests over its actions, Jagex reversed course the very next day.

We hear your feedback loud and clear and we’ve been discussing that feedback all day and, while discussions continue, we absolutely intend to act on it.

Our conversations today have also included 117Scape and Adam from RuneLite and we are actively exploring options on how we can work together to offer 117Scape’s plug-in as a bridge until our own version is ready for release.

The very compromise that 117 offered is now what's on the table. This whole thing could have been completely avoided if Jagex hadn't decided that direct profits and control were somehow worth pissing off a major swath of its biggest fans. It's a complete own-goal, in other words, where the end result is what the community wanted all along, only now they're absolutely furious with the company.

Again, how is this smart? How is it good business? How does this desire for complete control keep happening, even when it regularly results in public blowback?

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Posted on Techdirt - 8 September 2021 @ 9:09pm

China's New Youth Online Gaming Restrictions Birth Underground Workaround Industry To Defeat It

from the oops dept

It will not be controversial to say that China has always been one of the leaders in the war on the internet and culture alike. Between the Great Firewall of China at the macro level, the almost hilariously Orwellian tactics like forbidding certain karaoke songs, and the full destruction of democracy in Hong Kong, it's clear that Beijing values control over everything else.

But control isn't always so easy to implement. Take China's restrictive new regulation on online gaming among youths, for instance. These rules, implemented in order to combat "video game addiction" for minors, limit online gaming Friday through Sunday and on national holidays to 1 hour a day, 8pm to 9pm. This is achieved by forcing the gaming companies to implement a "real name" account policy. Gamers have to create an account utilizing their real names, which are checked for user age, in order to get into the online games.

Well, you probably already know where this is going. The new rule has given rise to an underground industry for renting gaming accounts that are registered to adults. Adults can also just let their children use their accounts, also defeating the check. In other words, this has all become somewhat pointless.

‘Complying with the new rule isn’t technically difficult because it’s just a matter of writing new [Software Development Kit] codes,’ Zhu told Kotaku. ‘[SDKs are] integrated as part of the login process. What happens is that when new players log in, they are asked to enter their ID number which then verifies their age. Every gamer needs to log in with their real names…[and] every [domestic] game that legally operates in China is required to have that function.’

According to Niko Partners’ [Daniel] Ahmad, parents aren’t barred from giving their unrestricted adult accounts to their children, and there’s a large gray market for adult gaming accounts. If an underage player wanted to, they could circumvent the new restrictions

And they are! Nobody can say for sure how much of this is occurring, but if the lawsuits are flying about you can bet that it is some significant number. And, considering that one of the methods for defeating the restriction is for parents to simply let their kids use parental accounts, this all seems really silly. After all, it should be obvious that the main thrust for China putting these rules in place is some version of Beijing wanting to parent children, only to have those rules defeated by parents and children.

So, does China admit defeat and rescind or rework the new rules? Of course not!

This summer, Tencent rolled out a time-sensitive facial recognition system for sixty games, including Honor of Kings. Dubbed “Midnight Patrol,” it aims to prevent tricksy youngsters from posing as grown-ups between 10pm and 8am. “We will conduct a face screening for accounts registered with real names and that have played for a certain period of time at night,” Tencent Games said at the time (via Sixth Tone). “Anyone who refuses or fails the face verification will be treated as a minor, and as outlined in the anti-addiction supervision of Tencent’s game health system, and kicked offline.”

And you can bet that the facial recognition piece of this will be defeated, too. That is how this sort of thing tends to go, after all. This is something akin to the famous John Gilmore quote that the internet sees censorship as damage and routes around it.

Game on, Chinese youth!

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Posted on Techdirt - 3 September 2021 @ 7:39pm

Mystery Over Fake Section 1201 Takedown Claims Sent By 'Video Industry Association of America' Deepens

from the no-such-agency dept

It was only a week or so ago that we discussed the latest example of the type of fake DMCA notices that Google gets to delist certain URLs from search results. In this instance, a couple of factors made these DMCA notices even more problematic than usual. For starters, they claim to be coming from the U.S. Copyright Office, which very much does not send in DMCA notices like this. On top of that, the notices claim they are being sent by the U.S. Copyright Office on behalf of the Video Industry Association of America which, as I noted in my original post, doesn't seem to actually exist. Finally, and perhaps most importantly, these are notices for Section 1201 claims, which deal with anti-circumvention aspects of copyright law, that target mostly stream-ripping sites and sites that cover or guide legit uses of those sites. Notably, Google does not have an appeal process for 1201 notices, leaving anyone who got delisted basically screwed.

Well, now the mystery somewhat deepens. The Section 1201 DMCA notices have continued to flood Google, but now they are being supposedly sent directly by the Video Industry Association of America, with whoever is sending these dropping the pretense that they're coming from the US Copyright Office. But that isn't actually clearing much up other than to highlight, again, that the organization doesn't actually exist and is coming from Russia.

A mysterious group called the 'Video Industry Association of America' is trying to wipe the homepages of dozens of reputable sites from Google search. The targets, which stand accused of violating the DMCA's anti-circumvention policy, include Verizon, Pinterest, and Engadget. Google says that it's aware of these fraudulent notices but, thus far, they are not without damage.

The ‘American’ organization starts one request off in Russian and finds it hard to construct proper English sentences. In another notice, it complains of sites and apps that circumvent the copyright protection of streaming services, while classifying these as “software cracks.” Things get even more problematic when we look at the URLs that are reported. While these include tools such as DVDFab and YouTube-rippers, which some rightsholders see as problematic, various legitimate sites are targeted as well.

So what's going on here? Well, it seems that whoever is behind these DMCA notices is taking shotgun approach to them. Anything that has to do with providing or informing the public on matters of stream-ripping, legit or otherwise, are being targeted. Plenty of other tech news organizations have been targeted as well, such as Engadget and CNET. Most of the takedown requests have gone ignored by Google, but several have not. Many smaller tech sites have been delisted as a result of all this.

For at least one of the sites, Google has acknowledged that the delist request was not legit, but also said there is no current appeals process.

Fossbytes reported the issue to Google, which informed the site that there is no official counter-notification process for these anti-circumvention takedowns. As such, the URLs remain deindexed for now.

“There is no formal counter notification process available under US law for circumvention, so we have not reinstated these URLs,” Google replied, requesting a detailed explanation from the site.

Meaning the onus is still on the victims of this crap to get themselves re-listed. And, once TorrentFreak got its hands on a copy of the takedown request, it illuminates how blatantly fraudulent all of this is.

This reveals some interesting details that are not available in the Lumen database, including the name, email address, and geolocation of the ‘Video Industry Association of America’ representative.

As can be seen above, the sender is actually located in Russia and identifies itself as “Wolf Fang,” which isn’t a typical name, not even in Russia. The email address, which we won’t publish, comes from Gmail and references another animal’s fangs.

Again, what's going on here? Is this some coordinated Russian effort to delist a bunch of prominent or otherwise American news sites? Not likely. Instead, this is more likely a form of the kind of fraud-based attack we've seen from overseas sites that abuse the DMCA process in order to take down both its competitors and references to competitors wherever possible.

For now, it remains a mystery who’s behind these notices. It wouldn’t surprise us if the “Video Industry Association of America’ is actually a direct competitor of the stream-ripping and DRM circumvention tools that are reported.

This is a strategy we have seen several times in the past. A competitor targets URLs from competing apps and sites, so their own site will end up higher in Google’s search results.

In other words, the only real good these bullshit DMCA notices are doing is to further highlight the wide open avenues for fraud and abuse in our current DMCA takedown process.

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Posted on Techdirt - 2 September 2021 @ 7:58pm

Indie Game Dev Decides To Leave Industry Due To Steam Returns On Short Game

from the predictable dept

It has now been over six years since Valve finally put in a refund policy for video games purchased on its Steam platform. At the time of its announcement, I was very much in favor of this move by Valve, given how previously the prospect of buying games on the platform was laughably tilted in favor of publishers and developers. On top of that, a whole bunch of the outcry from publishers and developers over the policy seemed to mostly center around it existing at all, meaning such concerns were mostly just requests to go back to the one-sided policies that favored them. Some developers even saw large numbers of refunds as a good thing, arguing that those refunds were likely largely from people that never would have tried their games out if a potential refund weren't in place.

But going way back to that first post over its announcement, one concern brought up by developers seemed legit. Given that the refund policy required the buyer to have bought the game within the past two calendar weeks and to have not played more than two hours of it, well, what about very short games that can be completed well within that timeframe?

That exact scenario has now impacted one indie developer such that it is quitting the game development industry altogether.

Summer of ’58 is the latest first-person horror title from indie developer Emika Games, which was released in July and features a video blogger investigating an abandoned and supposedly haunted Russian children’s camp – which of course goes very badly indeed. At £6.19/$6.92 on Steam it’s a cheap purchase even full-price, and it’s currently 23% off.

The game’s Steam page makes it very clear that Summer of ’58 only has an average play-time of around 90 minutes. However, according to Emika Games, Summer of ’58 has received “a huge number of returns” – despite being rated ‘very positive’. The developer blames this on the fact that its game “does not reach two hours of playing time” – under Steam’s return policy, any game under two hours can be refunded.

As a result, Emika Games announced on Twitter that it is leaving the games industry entirely for an "indefinite time".

Now, we could have a discussion about whether this is an overreaction or not. We could talk about how Steam's refund policy is completely public, meaning that Emika Games knew what it was getting into when it put its 2 hour game on the platform. We could talk about business models and all the other ways the game could have been sold to the public other than via Steam, or other ways the developer could have made money from it.

But whatever side of those arguments you'd want to come down on, it wouldn't change the simple fact that this is an obvious flaw within Steam's refund policy. And, frankly, it's one that developers and industry commentators saw coming a mile away. Hell, in my first post on the announcement, I managed to come up with a simple solution to this myself.

It might be an even better solution to simply allow game-makers to have options on the game-time of their refund policy. Say, two hours, five hours, or thirty minutes. Then consumers could decide for themselves if less game-time was worth the risk of purchase. I imagine that would create more administrative work on Steam's end, but it ought to keep the indies happy.

It seems Steam decided not to keep the indies happy. And now one of them is leaving not just Steam, but the entire industry. Why? Because Steam caters primarily to the AAA publishers? That's probably part of it. Because Steam didn't want to give up that kind of control over its policies and platform to developers? Probably another part of it. Because this would have created work for Steam that it didn't want to do? Likely yet another part of it.

But whether it is one of those explanations or the trifecta, a good indie gaming scene means this policy has to be altered to make it workable for those making shorter games.

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Posted on Techdirt - 1 September 2021 @ 8:20pm

Nintendo Shuts Down Another 'Smash' Tournament Due To Mod Use, With No Piracy As A Concern

from the nintendon't dept

Late last year, we discussed a predictably odd move by Nintendo to shut down a Smash Bros. tournament called The Big House over its use of a mod called "slippi." Slippi essentially unbreaks the 20 year old game when it comes to competitive online play. Otherwise, the whole thing basically doesn't work from a online play perspective. And, with all kinds of events going virtual, The Big House attempted to run its tournament virtually, meaning that participants would have to use a digitized version of the game they owned, along with the mod, in order to participate. After it nixed the tourney, Nintendo put out the following statement:

Unfortunately, the upcoming Big House tournament announced plans to host an online tournament for Super Smash Bros. Melee that requires use of illegally copied versions of the game in conjunction with a mod called ‘Slippi’ during their online event. Nintendo therefore contacted the tournament organizers to ask them to stop. They refused, leaving Nintendo no choice but to step in to protect its intellectual property and brands. Nintendo cannot condone or allow piracy of its intellectual property.

Many of us rolled our eyes at the statement. After all, digitizing your own owned game in order to participate in the tournament is not "piracy." The game was bought and paid for by participants. The use of slippi doesn't really factor into the equation and, yet, its use seemed to be the deciding factor in the shut down. In other words, the target seemed to be the mod and not piracy.

Well, that appears to be confirmed now that Nintendo has shut down a tournament called "Riptide", hosted at a waterpark in Ohio in-person, due to its use of a mod called "Project+".

The inaugural Riptide Smash Bros. event was supposed to happen last year but was postponed due to the pandemic. But 2021 has introduced another hitch. The three-day fighting game extravaganza at the Kalahari Resort in Sandusky, Ohio will now no longer feature Project+, a variant of the popular Project M mod for Smash Bros. Brawl that makes the 2008 Wii game fit for high-level competitive play.

“Riptide was contacted recently by a Nintendo of America, Inc. representative regarding our Project+ events,” the event’s organizers wrote on Twitter last Friday. “As a result of that conversation, there will be no Project+ tournaments or setups at Riptide.”

Note that the event was scheduled to go off on September 10th. Participants are getting refunds for their entry fees, given the last minute cancellation, but not for any money spent on transportation or accommodations needed to attend the event. Flights, hotels, etc. are all going unrefunded. And, understandably, people are pissed.

“Super cool of @NintendoAmerica to cancel an event that’s been planned for months just 2 weeks before it happens!” wrote Melee pro JoSniffy on Twitter. “It’s so considerate to all of the people that bought plane tickets and hotels months ago, which are now useless. Keep up the great work Nintendo!”

Notably, there are zero piracy concerns at play here. The event and mod require disc copies of the game to play. The entire competition was to be conducted in-person, with no online play. Nintendo has made no public statement at the time of this writing as to why the tourney was cancelled, leaving it completely open to confusion and speculation.

“This is unforgivable at this point,” wrote past Melee champion Hungrybox on Twitter. “There’s no legitimate reason for @Nintendo to do this that doesn’t include a complete disconnect with the current culture of their consumers. Insanity.”

And so the rest of the Riptide event will go on as scheduled, but this one tournament is shut down, leaving participants that paid for accommodations in the lurch. Why?

Control, obviously. With no piracy to be concerned about, all we're left with is the use of the Project+ mod. Nintendo quite famously hates modding communities and takes every opportunity to retain strict control over how its games are played. Why it wants to go to war with its own fans and customers in this way, meanwhile, has been an open question for years.

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Posted on Techdirt - 31 August 2021 @ 7:54pm

Make It A Trend: More Modders Get Hired By Developers, This Time CD Projekt Red

from the mod-squad dept

You will recall that we were just discussing a cool little story about Bethesda going so far in embracing the modding communities surrounding its games that it ended up hiring one of the writers of an impressive Fallout 4 mod onto its team. Part of what made that story interesting was not how totally novel it was. After all, modders have found their way into developer roles in the past. Instead, it's that it was Bethesda that made it interesting, being a AAA title developer and the fact that the gaming industry certainly doesn't approach modding communities with unanimity.

But it would be great for this to become a trend, as a demonstration of the boon that modding communities can be for developers, rather than some kind of a threat to their control. It's probably too early to call this a full on trend at this point, but it is worth highlighting that we have yet another story of a AAA developer hiring on members of a modding community, this time with CD Projekt Red.

Since it was released last December, Cyberpunk 2077 has received intermittent mod support from the developer, resources like metadata and TweakDB file dumps. But the most helpful tools have come from the community.

The modders who will officially join CDPR are Traderain, Nightmarea, Blumster, and rfuzzo. They are best known as the folks behind WolvenKit, an open-source tool that allows modders to modify CD Projekt Red’s greatest hits, Cyberpunk 2077 and The Witcher 3: Wild Hunt In terms of Cyberpunk modding resources, WolvenKit is the gold standard, allowing you to edit any file in the game and, crucially, browse those files “without unpacking the archives.”

“We will be working on various projects related to the Cyberpunk 2077 backend and the game’s modding support,” Traderain wrote in an announcement on Cyberpunk 2077’s modding community Discord (via Reddit). “We are really excited for this and we really hope we can help to bring Cyberpunk 2077 to the next level!”

This specific move by CDPR is somewhat meta, with the modders hired not only to help with Cyberpunk's seemingly ongoing development via patches and mods, but also specifically to bridge the gap to other modding communities to make better use of their work.

Now, we're not a gaming site, so we didn't cover most aspects of CDPR's long-awaited release of Cyberpunk 2077, but the Cliff's Notes version is simply: it was an absolute shit show. The game, as released, was buggy as all hell, had console versions that didn't work or display as advertised, and there were even lawsuits from investors as a result of a crazy amount of refund requests granted by CDPR. It... wasn't great. And, frankly, there is no real excuse for the release of what is essentially an unfinished game.

But between active patching of the game and, more important for this post, an active modding ecosystem, the game has come a long way. Were CDPR to embrace a fight or flight mode of thinking, it would have been really easy for it to see these modding communities as either a threat to control over a broken product, or a point of embarrassment as the public was now fixing its game.

Instead, the developer did the smarter thing and embraced and eventually hired some of these modders. And now it's going to take this embrace of modders even further.

“We are working with Yigsoft on the development of Cyberpunk 2077 modding tools. The modding community has always been very important to us and we are happy to be working with them side by side on further expanding the tools which are available to modders,” a representative for CD Projekt Red told Kotaku in a statement.

Which will allow CDPR to continue to reap the benefits of its biggest fans, those so passionate about the game that they want to not just play it, but play within it. As a bargain in which the developer only had to give up a bit of control over its property, that's a damned good deal.

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Posted on Techdirt - 30 August 2021 @ 8:15pm

Netflix's Announced 'Video Game Streaming' Foray Fizzles Into Some Mobile Games Using Netflix IP

from the more-like-a-trickle-than-a-stream dept

You may recall that my colleague Karl Bode discussed Netflix's response to real competition last month, dealing mostly with how Netflix has attempted to hand-waive concerns over losing subscribers in the face of increasing streaming options from the likes of Amazon, Disney, and Comcast. But buried down in the last paragraph was a reference to Netflix's reported interest in video game streaming. Reports indicated that Netflix had hired an executive that had previously worked for EA, speculating that the company was getting into game publishing. There was no official word from Netflix as to what this game studio would actually look like, and the speculation was roughly what you would expect.

While Netflix has not yet confirmed what shape its video game publishing arm might take, Bloomberg reporter Mark Gurman has suggested that the effort could lead to "video games [as part of] its service in the next year." The use of "video games" as a descriptor is key, as that differentiates the effort from the "choose your own adventure" TV specials that have become more common on the service since Black Mirror's "Bandersnatch" special debuted in 2018.

A tantalizing thought, to be sure. Would Netflix, the company that largely changed the way the public consumes television and movie content, jump into video game streaming in some way to compete with Amazon, Google Prime, and the like? Given the lackluster adoption of such video game streaming services, and given Netflix's reputation for redefining content via streamed services, such speculation certainly made sense.

But, no, Netflix is not getting into that sort of video game streaming service. Instead, the studio will build mobile gaming apps available to Netflix subscribers, chiefly utilizing Netflix intellectual property.

One month after its vague announcement of a new gaming-centric strategy, Netflix has explained how it will "publish" video games in the foreseeable future: as downloadable smartphone apps, available exclusively for paying video-streaming subscribers.

The news coincides with the company's public launch of Netflix Gaming on Thursday as part of the service's smartphone app... but only in Poland—and only on Android. The company's American Twitter translated Thursday's Polish announcement, which explains how the service works. It also announced the two games launching as part of the service today: Stranger Things 3, a 16-bit beat-'em-up that was previously available as a standalone Google Play purchase (and is still live on PC and consoles); and Stranger Things: 1984, a rebranding of a 2017 smartphone-exclusive game that revolve around slow, puzzle-solving movement through pixelated TV-series environments.

Yawn. The more detailed announcement is honestly underwhelming. On top of that, the way Netflix is attempting to silo this new gaming content behind the Netflix app for subscribers sounds like an absolute user experience nightmare.

To access this content, you'll need to log in to Netflix's Android app while using a Polish IP address, then open the region's new "N Gaming" row of icons (pictured below). From there, pick either of those games, and the app will direct you to their Google Play download listings. Once downloaded, the apps in question will request your Netflix credentials before loading, and they will not work without an active Netflix membership.

The Polish IP part of this equation is a function of this all being in beta, so we'll leave that aside. But accessing the Google Play store by first navigating a complicated menu in the Netflix app... only to then have to re-input your user name and password for Netflix into the game application? Come on now, this isn't the efficient user experience Netflix made its name on.

And I'm also terribly confused why Netflix would even want to restrict selling its games only to Netflix subscribers. Why not sell to, you know, everyone? This reeks of console exclusivity, where gaming console companies strike deals with developers to only appear on their consoles as a way to drive more console sales. Is Netflix's strategy really to use these mobile games to drive more people to subscribe or stay subscribed to its main offering?

If so, it's a terribly weak move, and unlikely to work. Maybe the game catalogue will grow, but I can't imagine anyone considering unsubscribing to Netflix changing their minds simply to play a Stranger Things mobile game.

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Posted on Techdirt - 27 August 2021 @ 1:51pm

PSA: Universal Music Group Has Copyrighted The Moon. That is All.

from the universal-indeed dept

We have seen and covered a great many ridiculous copyright issues here at Techdirt. It is, after all, sort of our thing. Still, some attempts at enforcing copyrights are so ludicrous that they take your breath away. Now, granted, often times the most egregious of these stories arise out of the use of automated bot systems that troll all the places for copyright infringement and often times get it completely wrong. But that isn't so much an excuse for those situations as it is a spotlight on how brutally terrible the current iteration of copyright enforcement has become and how despicable it is that the wider copyright industries just shrug their shoulders at all the collateral damage they cause.

And then there's the moon. I know, I know, you're thinking, "The moon? Is Timothy having another stroke while writing a post?" First off, my personal health is none of your concern. And secondly, nope, because a video recording of the moon as seen from Greece, which included no audio, was blocked all over the place due to a copyright claim made by Universal Music Group.

British filmmaker Philip Bloom recently filmed the Moon during sunset Skiathos in Greece. After sharing it on social media, he was surprised when the video was blocked due to a claim by Universal Music Group, which claimed copyright to the generic shots of the Moon. Here’s the audio-less video that Bloom shared to his personal Facebook account while on his holiday:

Yup, that's it. So, how did this get flagged for copyright by UMG? Well, according to the block notification, UMG says the video contains "30 seconds of video owned by UMG". How? Well, who the hell knows. If I had to guess, I would speculate that there is some music video out there or something that also contains footage of the moon and that somehow has resulted in an automated system flagging this video of the moon as copyrighted content.

But, just so everyone is clear, UMG does not actually own footage of our nearest celestial neighbor. The person who filmed the footage, filmmaker Philip Bloom, is understandably not pleased.

“I uploaded some shots of the moon to Facebook late last year shot with the Canon R5 but it was a 2/3rds moon,” Bloom tells PetaPixel. “It looks like their AI is looking for full moon shots.”

Bloom then filed a dispute against the copyright infringement block, explaining to Facebook: “It’s a shot of the moon I personally filmed tonight!!! UMG doesn’t own the moon!”

But because, again, the way copyrights are enforced currently is a goddamned nightmare, the footage is still offline for those social media channels in all those countries while Bloom is going through the appeals process. And it's very much worth considering that this isn't an isolated case, either.

Bloom says that after he shared about what happened on social media, one of his followers shared that the exact same thing happened to them.

And so here we are. During the appeals process for Facebook at least, it appears that the assumed state of things is such that UMG owns the copyright on footage of the moon. If the fact that the setup of the DMCA and our enforcement of it allows this result makes any sense at all to you, then perhaps you'd be better off living on UMG's moon.

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Posted on Techdirt - 26 August 2021 @ 7:34pm

Doing It Right: Bethesda Likes 'Fallout' Mod So Much It Hires Some Of The Team That Made It

from the mod-squad dept

How gaming companies treat their modding communities that spring up around their games is something of a fault line in the industry. Game studios tend to be either pro-modding or not, with very little space in between. Nintendo, for instance, is notoriously anti-modding of its games. Bethesda, on the other hand, has traditionally been quite open-minded when it comes to the modding communities that have sprung up around its games. We've made the point for a long, long time that embracing modding communities is typically a massive boon to gaming companies and the restrictive attitude companies like Nintendo take makes little sense. Mods extend the shelf life and interest of games, driving attention and elongating the sales cycle and windows for those games. Giving up a little control for more sales seems to only make sense.

But, speaking of Bethesda, some developers go even further. For instance, there is a forthcoming Fallout mod made by an independent team that is entitled Fallout: London, and it looks amazing.

Now, I am very much a fan of this franchise, so I'm comfortable saying that if you can see a quality difference between what appears in this trailer and what has appeared in official trailers for the franchise, you're a much bigger stickler for details than I am. The mod changes more than just the location, though. It puts an emphasis on different types of gameplay to reflect a more British sensibility.

Fallout: London is an ambitious Fallout 4 modification that was officially revealed earlier this year. Taking place in the time between the first two games and set leagues away from the franchise’s traditional Americana-inspired stomping grounds, Fallout: London features a massive new map to explore, fresh-faced factions to join, and an added focus on melee weapons over firearms.

Now, the whole thing has been created on a volunteer basis and I haven't seen any request for money or monetary support on its website, so there is that. Still, little would stand in Bethesda's way if it wanted to shut this whole thing down. Plenty of gaming companies have done that sort of thing with fan-made projects in the past, citing copyright and/or trademark concerns. So, really, are we just waiting for the Bethesda hammer to drop on this project?

If so, it won't be the hammer you were expecting. Instead, Bethesda's folks seemed to be so impressed by the work on the mod that it is hiring some of its team directly.

Stephanie Zachariadis, head writer of the highly anticipated Fallout: London mod, is leaving the development team after being hired as an associate quest designer at Bethesda Game Studios, project lead Dean Carter announced recently.

“This is utterly fantastic news and something that all of the team here at Fallout: London stand behind and we wholeheartedly wish her the best on her endeavors,” Carter wrote in the mod’s official Discord server. “We hope that she will give them the same groundbreaking story and quests that she gave us.”

We often talk about how companies can be cool and human with their own fans, rather than restrictive assbags, and what a boon this can be to the company. It's a whole new level when a gaming company decides to take that same tact with its modding community. Bethesda obviously recognizes the value in its modding community and is now leveraging it in multiple ways.

  1. The mod itself makes Fallout 4 continue to be relevant and perhaps even more relevant for the UK audience.
  2. Allowing the work on the mod to come to fruition revealed a talent-hiring opportunity for Bethesda in the form of Zachariadis.
  3. That hiring decision should only encourage the modding community to work on labors of love even harder, with the understanding that Bethesda is both cool with it and might even reward them for it down the road.
  4. The public gets to see the company behave in a human and awesome way, a PR benefit.

I am failing to see a single downside for Bethesda to any of this, making me wonder yet again why other companies ever do it differently than this.

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Posted on Techdirt - 25 August 2021 @ 8:01pm

Fake 'U.S. Copyright Office' Imposter Gets Google To Delist URLs On Section 1201 Grounds

from the fake-views dept

We've done more than our share of posts in the past about the problems within the DMCA takedown system as currently practiced. The reason for so many posts is in part due to the sheer number of problems with how this all works. For starters, when notices go out to search engines like Google to delist "problem" URLs, those notices are often times generated by automated systems that unsurprisingly result in a vast majority of notices targeting URLs that are non-infringing. As in, over 99% of those notices. And even once we get past the malpractice of using automation buckshot notices that result in an incredible amount of collateral damage, we then have to add the wide open avenues for fraud and abuse of the DMCA system. That type of fraud runs the gamut, from trolls merely trying to cause chaos for the fun of it to competitors of certain forms of content trying to hurt the competition. In the immortal words of former NFL coach John Fox: "It's all a problem."

And, on the fraud and abuse side, it's such a problem that perfectly legit URLs can get delisted by Google due to a request from "The U.S. Copyright Office", even though that office doesn't make those sorts of requests.

Google has received several takedown notices that claim to come from the 'U.S. Copyright Office', requesting the search engine to remove 'problematic' URLs. The Government body, which is generally not involved in copyright enforcement, informs TorrentFreak that it has nothing to do with these notices. Unfortunately, Google didn't immediately spot the imposter.  

The Copyright Office is not supposed to take sides in these matters. So, we were quite surprised to see its name on several takedown notices that were sent to Google over the past few days.

The takedown requests are not typical ‘Section 512’ notices. Instead, they point out sites that circumvent technical protection measures, which is in violation of the DMCA’s ‘Section 1201.’ That’s also how Google processed them.

And process at least some of them, Google did. The notices claiming to be from the Copyright Office indicated they were sent on behalf of the Video Industry Association of America, which doesn't appear to exist based on a Google search I performed. Even if it does, the Copyright Office is not a party to these sorts of takedown requests on behalf of any organization. The URLs targeted appear to be mostly related to stream-ripping sites, but not just sites that offer that service. Instead, some of the URLs targeted merely mention sites that offer stream-ripping services, which is how several TorrentFreak posts got targeted.

Whoever is doing this, it is most certainly not the Copyright Office.

This suspicion was confirmed by the U.S. Copyright Office. A spokesperson informs TorrentFreak that the notices in question were not submitted by them.

This doesn’t mean that the takedown requests were ignored by Google. While our links are still indexed, several of the URLs listed in the notices have indeed been removed because of the notices, which is a problem.

It's a huge problem, actually. In fact, it demonstrates quite well how broken the current DMCA system has become. The fact that this sort of impersonation is so easy is an issue. The fact that Google is so inundated with these types of requests, which again are overwhelmingly illegitimate, that it cannot review them thoroughly enough to notice the clear impersonation of the Copyright Office at work here is another issue. And the fact that the DMCA process is obviously viewed by some bad actors as a wide open tool to attack their own competition is yet another issue.

And, notably, there isn't even an appeal process for Section 1201 takedown requests.

Unfortunately, there is no counter-notification option for ‘Section 1201’ takedown notices. This means that sites and services that are affected by these bogus notices have no official appeal process they can use.

But perhaps the U.S. Copyright Office can help with that?

Or maybe someone can just pretend to be the Copyright Office and help. You know, on its "behalf." It works for the bad actors, after all.

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Posted on Techdirt - 24 August 2021 @ 8:13pm

Sony Takes Down Leaked Unfinished Spider-Man Trailer, Releases Finished One Days Later

from the its-advertising-you-dolts dept

We've talked plenty of times in the past about instances in which publishers of content, typically movies, get copyright takedowns performed on trailers. These takedowns are, frankly, never a great idea, but they are particularly stupid when companies like Marvel, Disney, and Warner Bros. takedown trailers, otherwise known as advertisements, and then release an identical or nearly identical trailer days later. What in the actual hell is the point of that? Killing off your own word of mouth and free advertising for your film?

Now, Sony just went through this experience itself, having attempted to DMCA to death a leaked and, importantly, unfinished trailer for Spider-Man: No Way Home.

The way in which the trailer apparently leaked is obviously a concern. It surfaced via the video sharing app TikTok and immediately went viral, but it wasn’t long before Twitter, Reddit, and YouTube had nabbed it. The trailer footage was clearly cut before most of the VFX were added, and was presented in the kind of disastrous way that would give Christopher Nolan nightmares – with a phone filming another phone screen filming another screen – but that didn’t stop fans getting the gist of the trailer.

So, part of the desire to put the trailer genie back in the bottle was surely the unfinished nature of the trailer and some of the fan reactions to seeing it without special effects being added in. So, does that make Sony's decision to try and DMCA it out of existence the right move?

Hell no. And there are several reasons why. The first and most obvious is that, not surprisingly, it didn't freaking work. You can still today go out on several sites and find the leaked version of the trailer. There are YouTube videos and videos on other platforms of the trailer being shown and discussions being had about its contents. In fact, you could rightly suggest that Sony trying to kill the trailer generated even more buzz around it, leading even more people to watch than might have otherwise. The Streisand Effect at work, in other words. So, one strike against this move was how ineffectual and counterproductive it was.

But then note that Sony dropped the official and finished trailer days later. And the coverage of the official release was generally quite positive. The story incorporates the MCU's multiverse, perhaps most famously utilized in another Spider-Man related film, Into the Spiderverse, in which there are multiple realities in which different personalities are in control of different superheroes who make different decisions.

So imagine for a moment that we live in such a multiverse, something that is a studied possibility. What if there were another universe in which Sony's lawyers, instead of trying to ineffectually un-leak a widely shared trailer for a hot property, said instead something like this:

Hey, Spider-Man and Marvel fans! We know an unfinished version of 'Spider-Man: No Way Home' leaked yesterday. We didn't authorize the leak because the work on it wasn't completed. In fact, it looks a hell of a lot different than what we actually have prepared for you. But we also know how passionate you all are as fans, so we're guessing a great many of you went out and watched it. That's awesome! We love how much you love Spider-Man!

And that's why we definitely want you to see the finished version. Unlike the leaked version, the official trailer adds in the awesome effects you can expect when you actually go see the movie in theaters! In fact, we think you should definitely watch both trailers so that you get an idea of the insanely good work our effects studio does. See you in the theaters in December!

I wrote that in three minutes. How many billable hours did Sony's lawyers log instead failing to un-leak the previous trailer? And which move builds more good will in the community of Spider-Man fans? Which one had a greater positive effect?

The answer is obvious. And, yet, we still see studios trying to treat the internet as though it were a place where you can disappear content.

16 Comments | Leave a Comment..

Posted on Techdirt - 20 August 2021 @ 7:39pm

Edvard Eriksen Estate Goes After Another Danish City For Having A Mermaid Statue

from the under-the-C dept

Who knew that a bronze statue of a mermaid could cause so much trouble. If you're not aware, there is a statue of the Little Mermaid on the shores of the Danish capital Copenhagen. It was created by Edvard Eriksen, who died decades ago. Eriksen's estate, however, is well known to try to claim copyright infringement on any other statues of mermaids that pop up in cities around the world, including in Michigan. Notably in that case, the estate ran away when a public backlash began to emerge. This is also, by the way, the same statue that Facebook has previously removed images of for showing too much "skin", or bronze in this case, as the mermaid is topless, because... mermaids.

Notably, Eriksen based his own artwork on the famous Little Mermaid created by Hans Christian Anderson. Despite that, it seems that any remotely similar mermaid statues find their way into the estate's crosshairs, such as the statue that resides in Asaa, Denmark.

The mermaid that has been watching the harbor in the village of Asaa, in northern Denmark, since 2016 is not an exact replica of the monument in the Danish capital. But for the heirs of Edvard Eriksen, the artist who sculpted the Copenhagen statue, the mermaid Asaa bears too much resemblance. They took legal action, demanding not only financial compensation, but also the demolition of Asaa’s sculpture.

“When I first received the email, I laughed,” said Mikael Klitgaard, the mayor of Broenderslev, the municipality that includes Asaa. “I thought it was a joke.”

The only joke here is the stance of the estate, which doesn't appear to understand the idea/expression dichotomy in copyright laws. Now, to be clear, I'm not 100% clear on whether Danish law differs significantly from American law on the idea/expression dichotomy, though this Thomson Reuters Q&A on the topic appears quite familiar.

Copyright infringement is generally assessed by comparing the works in question and determining whether the allegedly infringing work brings on the same aesthetic experience as the original work. This determination is based on the general impression of the works, as opposed to assessing each detail on its own. When assessing copyright infringement, the courts must take into consideration the general notion that ideas, motifs, information and the like are not protected in Danish copyright law.

Assuming that's accurate, any threat from the estate should be a nonstarter. If you are wondering how similar these works of art are, the answer is: very! But that is because they are bronze statues of mermaids sitting on a rock. Both kneel, both are topless, both are mermaids, and both have the mermaid's tail splayed slightly to one side. But, and this is important, they are not identical. In other words, the statue is not a replica of the Copenhagen statue, but rather a replica of the idea, or inspiration, of Hans Christian Anderson's mermaid. According to the source post, the lawyers on both sides are now talking, with much of the conversation coming down to how similar the statues are. And, it seems, a ton of that relies on the mermaid's posture. Which, as Klitgaard goes on to note, presents a problem.

Carved from granite and weighing three tons, the mermaid Asaa is more plump and her facial features coarser. His posture, however, is the same.

“How else is she going to sit down?” asked Klitgaard, the mayor. “It’s a mermaid. You can’t put her on a chair.

Exactly. Meanwhile, the artist that created the Asaa mermaid, Palle Moerk, is quite confused as to why any of this is a problem for the estate.

The mermaid Asaa was created by Palle Moerk, a local artist and stonemason who carves both tombstones and figurative sculptures; among these, pigs, owls and human hands making gestures (both obscene and not) are favored themes. He had sculpted the mermaid four years before it was purchased by a group of Asaa citizens and donated to the organization that runs the port to commemorate its 140th anniversary.

In an interview, the artist said he resented the accusation of copying Eriksen’s mermaid. “As an artist you understand all kinds of things – and of course I had seen pictures of the mermaid Langelinie,” Moerk explained. “But it was my own inspiration.”

Idea vs. expression. The idea of a mermaid resting on a rock is not protectable by copyright. Exact replicas of the Copenhagen statue are. If this statue is not a replica, nor an attempt at a replica, then the estate is suing over idea and not expression.

In other words, the song from the film is "Under the Sea", not "Under the ©".

115 Comments | Leave a Comment..

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