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




Posted on Techdirt - 17 April 2015 @ 1:59pm

How The DMCA And Anti-Piracy Measures Conspire To Keep Video Games In Their Cultural Place

from the that-belongs-in-a-museum dept

For those of us that think certain intellectual property laws have become overbearing and overly burdensome, one of the fun little exercises is to try and figure out where the best battlegrounds are for the fight against them. For instance, if you think cable television has become expensive, unfriendly, and overtly insane, you want to pay special attention to how professional sports are broadcasted now and in the future. If you want to find ground to battle expanded trademark protections and the crazy ways some companies interpret their rights, perhaps the alcohol and beer industry is a good place to draw a line in the proverbial sand. And for copyright? Well, there has always been a ton of focus on music and movies, but we may be seeing the world of video games emerge as the best ground from which to push back against the restrictions of antiquated copyright in the digital age.

Recently, we covered the spiderweb of nonsense one company had to go through just to try to publish a decade-old game, an attempt that was ultimately given up because the web proved to be too convoluted to navigate. Now, a Consumerist post explains how the DMCA and game publishers have (perhaps) unwittingly conspired to keep video games from claiming their rightful place within our cultural lexicon. The focus in the post is on section 1201 of the DMCA.

Section 1201 of the DMCA prohibits consumers from circumventing copyright protection measures put in place on games or any other digital media. So even if you can figure out a fix that will make a game work offline — much like the Sim City player who discovered a work-around against the disastrous always-online requirement — it’s against the law to do so, even if you’re not otherwise violating the copyright and even if this is the only way to make an abandoned game viable again. Yes, somehow keeping it illegal to fix broken, abandoned games aids in this innovation; perhaps by forcing people to keep buying newer releases.
The piece then draws up two conflicting sides on section 1201 with regards to video games: the Entertainment Software Association on one side and the EFF on the other. The EFF has filed a request to have exemptions put in to section 1201 for gaming enthusiasts and, more importantly, for museums who would need to alter the game in order to make it in any way useful for exhibit. Take, for instance, any of the games that Electronic Arts, member of the ESA, decides to torpedo in whole or in part by shutting down game servers that support or check-in with the software. Or, perhaps more apropos, take any of the myriad of recent games that have been released as "always online," with copyright protections essentially amounting to a check in with servers not in the consumer's control. What happens when those servers are no longer worth supporting and are shut down? Well, some or all of the game becomes un-playable.

Now, let's leave aside the question of whether or not a consumer truly owns the game they buy under these scenarios. Let's also leave aside whether this kind of DRM or copyright protection is worthwhile at all. Instead, let's focus on how curators of games can handle this kind of thing in a world where DMCA section 1201 forbids the kind of tampering that would get around these restrictions. Should the ESA get its way and keep 1201 exemption-free, so-called abandoned games or abandonware becomes abandoned culture. And not, by the way, abandoned by the consumer or the public, which might include museums or academics with a strong interest in curating older games. No, the abandonment is committed by the game company itself, leaving a giant cultural hole that cannot be filled in because of a copyright law section those same companies are defending.

I've long argued that video games should be considered every bit the equivalent of movies and music. Try to find an equivalent to this problem with either music or movies, however, and you'll be at it quite a long time before you find anything meaningful. Netflix doesn't count, because you aren't buying a movie in Netflix. Same with music streaming services. The closest thing to it is probably how some e-readers can disappear books the consumer has purchased. The difference there is that the entire cultural deposit with a literary work likely isn't lost when that sort of thing happens, as it can be found and curated in other forms. That's not the case with old and classic games.

You want to find a place to take a stance against expanded copyright in favor of greater culture? That place is with games. The ESA knows this, which is why it is staunchly defending section 1201.
The gaming industry argues that allowing these modifications would “undermine the fundamental copyright principles on which our copyright laws are based,” and send the message that “hacking… is lawful.”

In fact, as the EFF points out, “hacking” in and of itself is completely legal.

“Most of the programmers that create games for Sony, Microsoft, EA, Nintendo, and other ESA members undoubtedly learned their craft by tinkering with existing software,” writes the EFF. “If ‘hacking,’ broadly defined, were actually illegal, there likely would have been no video game industry.”
And no cultural boon from games as a result. Section 1201, within the framework of gaming, can be said to be firmly anti-culture. No two ways about it.

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Posted on Techdirt - 16 April 2015 @ 9:11pm

MMA Fighter Upset Over Possible Homage In Mortal Kombat

from the FIGHT! dept

Publicity rights have managed to intersect with the video game world more frequently recently. Typically, what appear to be loose general characterizations and/or homages within games have, for a variety of reasons, ruffled the feathers of the celebrity elite. One needs only look back at the disputes raised by Lindsay Lohan over a character in the Grand Theft Auto series which she, wrongly, declared to be based solely upon her. The question I always have in these cases is one of motive. Are these celebrities unhappy about the portrayal they think they see in a character, is there some competing interest, or is it all just a mindless money-grab?

In the latest case we'll cover, I'm at a loss if this isn't a money grab. The whole thing centers on the latest iteration of Mortal Kombat and one character's likeness, perhaps, to a mixed marshal arts fighter name Felice Herrig, who thinks the Cassie Cage character is based off of her likeness.

Herrig, who fights on this weekend’s UFC on FOX 15 card, was first made aware of Cassie Cage a few months ago. Back then, she found the resemblance to be a bit odd, but she didn’t have a whole lot to go on. In recent days, however, more footage and promo materials have surfaced, and Herrig doesn’t like what she sees.
Her complaints, posted to her social media account, center on the Cassie Cage character notably chewing bubblegum and taking selfies. If you go hunting for side-by-side comparisons, they can be somewhat striking.

Except we need to keep a couple of things in mind here. Both women, one real and one fictional, portray combat fighters and there are only so many ways those folks are going to be portrayed. Flexing with clasped fists is a common posed shot in this world. As for chewing bubble gum and taking selfies, both of those are so common that entire industries are built around them, so that is about as unique as having blonde hair.

Is there an homage here? I don't know, maybe. If there is, it's a subtle one, and built off a real-life person who isn't exactly a household name outside of the MMA scene. But what's the point of getting upset over a maybe-possibly-kinda-sorta nod in your direction? I mean, it is an option to be flattered or to use it to promote yourself, whether the whole thing is an homage or not. What's to be upset about?

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Posted on Techdirt - 16 April 2015 @ 9:43am

Chess Grandmaster Exposed As App-Using Cheat

from the there's-an-app-for-that dept

I love chess. As the original multi-player turn-based strategy game, chess serves as the backbone for many a modern era game, for which it has my respect. Despite this love I have for the game, I happen to be quite horrible at it, but that only makes me all the more reverent of those that master its wily machinations. Kasparov is a name I know solely because he was a grand champion, one of those faces of chess that spurred on so much intrigue as people wondered just how he was able to dominate his opponents so completely.

Gaioz Nigalidze was one of those folks, too, having attained the title of grandmaster, but now he isn't. He might actually be as good as advertised, but we can't trust that he is any longer because he was found to be using a iPhone to cheat his way through a match. The plot begins and ends, as all good plots do, in the toilet.

On Saturday, Nigalidze, the 25-year-old reigning Georgian champion, was competing in the 17th annual Dubai Open Chess Tournament when his opponent spotted something strange.

“Nigalidze would promptly reply to my moves and then literally run to the toilet,” Armenian grandmaster Tigran Petrosian said. “I noticed that he would always visit the same toilet partition, which was strange, since two other partitions weren’t occupied.”
Yes, the strange part was which toilet Nigalidze used, not the fact that his bladder decided to punctuate each move with a potty trip. As it turns out, Nigalidze had hidden an iPhone in one of the restrooms, wrapped in toilet paper because there ain't no stealth in chess, and had been running the game he was playing through an application that analyzed and suggested moves. In other words, he totally h4x0red that chess tournament, ya'll!

It turns out that being the Barry Bonds of chess isn't great for one's career and Nigalidze's past and future have both been placed in jeapordy.
Nigalidze was expelled from the tournament, which is still ongoing and features more than 70 grandmasters from 43 countries competing for a first-place prize of $12,000. The Georgian’s career is now under a microscope. His two national titles are under suspicion. And under recently tightened rules against cheating, he could be banned for up to 15 years.
This has reportedly sent the chess world into some kind of insane tailspin over concerns that, now that someone has proved that cheating in tournaments with a small device such as a phone is doable, who knows how many other of our revered grandmasters are big, steaming, salty cheat-burgers? The ancient game is now understood to be relatively easy to master with something as common as a smartphone, which means chess tournaments are about to get way more TSA-like with security, I guess.

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Posted on Techdirt - 15 April 2015 @ 12:20pm

Koei Tecmo Goes DMCA On DOA Modders For Undressing Its Already Scantily Clad Characters

from the a-mod-too-far dept

I won't pretend to know every in and out of the Dead or Alive series. That's partially because I gave up fighting games once I hit junior high, and partially because my gaming habits tend to cleave to particular franchises generally and DoA wasn't amongst those I patronized. But I gather the series has been mostly about offering up characters, and setting them to beat the hell out of one another for fun and amusement. I can see where there might be fun in that.

What I can't see is why the creator of such a game series would want to make the kinds of moral arguments against modders that DoA producer Yosuke Hayashi made in conjunction with Koei Tecmo going all DMCA crazy on mods that removed the wardrobes of the fairer characters of DoA 5: Last Round.

"We have to deal with mod issues from an IP holder perspective," Koei Tecmo producer Yosuke Hayashi said in an interview with trade publication MCV. "We would like to ask PC users to play our game in good moral and manner. Otherwise, we won’t be able to release a title for PC again."
Now, is the dedication some modders show to making sure that female characters are disrobed a level 20 on the creepy scale? Sure, I think that's fair. But, from a business perspective, why is Tecmo interested in going the DMCA route on the modding community? Whatever you think of the mods themselves, it's difficult to mount a logical argument for going to war with the modding community, which is typically made up of either a game's fan-base or talented modders serving some portion of the fan-base. Either way, mods are strictly for the interested, meaning they can only make a product more desirable, not less. What good comes from the company trying to hide these mods using intellectual property law?

As for the moral argument, please let me just type "haha" here and imagine I kept repeating those two letters infinitely, because, seriously, c'mon. The DoA series only strayed form its chief thematic vehicle of human beings beating the ever-loving shit out of one another in order to tantalize dumb teenage boys by creating spinoff series in which the female DoA characters play volleyball in laughably small bikinis, spinoffs in which the female characters are photographed in laughably small bikinis, and spinoffs in which the female characters can play almost-strip-poker with the player. Let me see if I can draw you a picture of morality using DoA imagery.

The gravity-defying boob physics represent the necessity of a firm moral stance...or something...

The point is that there seems to be little sense in any of this from Tecmo's perspective. Moral arguments are for those with moral authority, and good gaming business is to let modders have-at-it, as it were.

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Posted on Techdirt - 10 April 2015 @ 12:07pm

Google Rejects Postal For Google Play Store Due To Violence; GTA Games Still Available For Purchase

from the bang-bang dept

We all know that in the land of mobile applications, Apple has long seen itself as the keeper of the moral compass, gently navigating humanity towards the City upon a Hill one rejected phone-game at a time. The reasons for refusal have varied, from the inclusion of fictional narcotics, to the slight chance somebody somewhere might see a breast or a penis, all the way up to a moral stance against comic books, because this is apparently the nineteen-twenties. And through it all, those of us that use Android devices have held up Google's Play store as a nanny-free alternative, free of censorship and hypocrisy.

Well, no more. Google, it appears, has rejected a mobile version of the infamous game Postal over the violent content within the game.

Postal won't be making it to Android devices. Why? Because apparently it has been rejected from the Google Play Store because it contains "GRATUITOUS VIOLENCE."
Oh, dear. It appears a second nanny has entered the game, as though we poor gamers were somehow caught in between a vice constructed of Mrs. Doubtfire and Mr. Belvedere, each pressing in on us for the high crime of simply wanting to play a damned game. We're adults, after all, or at least many of us gamers are these days. Thirty-five or so, that's the average age of a gamer today. We don't need to be coddled and protected from gaming violence, it's what we want. Or, again, some of us do, but that's a choice for the consumer, not the platform.

And specifically not for a platform whose decision plunges it into the depths of hypocrisy. As the original forum post over at Running With Scissors notes, it's not as though keeping Postal out of Google Play preserves some violence-free app-Utopia.
"We know many of you have been excited that POSTAL is going to be made available on Android devices, but it seems we have hit a bit of a snag. Unfortunately it appears POSTAL has been rejected from Google Play due to it containing "GRATUITOUS VIOLENCE". Sadly this means it won't be welcomed alongside the Grand Theft Auto series, Carmageddon and horde of Zombie games on Google Play."
It's a point well-made and a point not designed to take aim at GTA or zombie games. The sights are set on Google's hypocrisy instead. I imagine the looks of surprise on the faces of the game designers were severe when the rejection notice came. The Play store was our alternative to this kind of nonsense. Perhaps we'll have to go elsewhere in the future.

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Posted on Techdirt - 9 April 2015 @ 12:43pm

Would It Have Been Better To Let The Indiana Religious Freedom Law Stand And Let The Internet And Free Market Work?

from the yelping-bigots dept

Assuming you have a passing interest in politics and were awake for the past week or so, you've likely already heard all about Indiana's recently passed Religious Freedom Restoration Act. Designed similarly to laws in several other states, including my home state of Illinois, the bill was designed to confer religious expression rights (further than the federal protection that already exists for individuals) onto business owners and the companies they operate. Depending on what you read and where you read it, there has been a great deal of confusion over what this law does and where it departs from similar laws in other states. The one distinction that appears to really matter, should you be interested, is that most of these kinds of laws include language that forbid their invocation as a defense at trial for discrimination in which the government is not a party, whereas Indiana's law didn't make that distinction. Indiana has since amended the law to protect the LGBT community, which has been particularly vocal in its opposition. Since the right of refusal on religious grounds to serve that community was really the impetus for this law to begin with, that pretty much leaves us where we were before the law was in place at all. Whether you agree with the law or think it legalized bigotry is a discussion for another place. What interests me is whether now, in the age of a democratized message available via the internet, the outcry to change the law was the most efficient course of action at all.

When discussing the benefits of the First Amendment, free speech, and the right to freely express ideas, most often the focus is placed on the value of protecting speech for the sake of the speakers. After all, should we begin to allow censorship of some speech, we might some day find that speech we wish to use has become censored. It's a perfectly valid argument, but an incomplete one, because the other benefit of free speech is that, assuming it's exercised, we don't have to wonder about the stances and positions people take. What Indiana's law did, in its original form, was offer business entities the same right to expose their opinions in the same way. And, in the age of Yelp reviews and online activism, are we really better off taking actions that push free speech, even speech we detest, underground, or are we better off giving companies an avenue for exposure.

Think again about Yelp reviews and recall the general trend for the stories we cover about them at Techdirt. Those posts tend to be of a couple varieties. Many are the sort that involve business owners suing over negative Yelp reviews. A couple of things to note about this when framed by a discussion on the Indiana law: First, this reaction to Yelp reviews means that online reviews matter to businesses, and with good reason. Customer reviews are often a first-stop on the consumer's road to deciding where to spend their dollar. Online reviews are a powerful thing, in other words. As for suing over negative reviews, I think the case that such actions are valid would be diminished by a law that confers more expression rights to companies than not. After all, either you're for free speech or you aren't, Mr. Indiana Company. The road is traveled in both directions.

The other kind of Techdirt post you see concerning online customer reviews is of the activist sort, where a company has acted positively or poorly in one way or another and the general public took to review sites, such as Yelp, Google Plus, or Facebook pages, to express their support or disgust. You may recall the the whole Amy's Baking Company fiasco that started with some crazy customer stories on Yelp, spun out of control on the show Kitchen Nightmares, and then exploded all over social media and review sites shortly thereafter. There, too, the owners of the establishment blamed Yelp reviews and "haters" for their misery, showing the power of the platform. If activism is a valid tool at all, it's perhaps at its most powerful in the online world, where connections exist everywhere and activism can be democratized across city, state, and national lines.

So, in light of all that, the question for both sides of the argument on the Indiana law is whether either side was best served by amending the law and responding to the backlash, or if we would have all been better off trusting that enough information is shared at this point, and our country has made enough progress, generally speaking, to simply trust the combination of market forces and online speech and let the law stand as it was originally written. It feels strange to argue this, I'll admit, but I think the latter might be true. Were I the one making these decisions, I would be tempted to let Indiana's companies have their way and all the speech and rights to refuse service they might choose to take advantage of. Not because I would agree with their theology or their politics, but because I would trust the general public and the internet to work as a market force and solve the problem without further legislation.

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Posted on Techdirt - 9 April 2015 @ 4:13am

Modders Un-Region-Restricting Halo Online Undeterred By Microsoft DMCA

from the back-in-the-ussr dept

One of the most wonderful sights to see in the gaming community, particularly in the PC gaming community, is what a combination of a loyal fan-base and a strong modding community can produce. This is particularly so when the mods released are clear and active attempts at doing nothing more than making the original product even better. You see this all the time in PC gaming -- old games being yanked into the present, an increase the replayability of a classic, and even all-new sub-games created out of the original. All of this done through a modding community that loves the original work produced by game designers. Some gaming companies embrace the modding community, while some don't. Which way they go is typically decided by just how much control the company generally wants to exert over its product.

Guess which way Microsoft tends to go? Well, they tend to be the protectionist sort, but a recent story about the release of a new free-to-play Halo game, Halo Online, both puzzled me and amused me. The puzzled part came from Microsoft firmly insisting that the release would be available for play in Russia only, which...what the hell? Even the excuse of a long testing period in a Russia-only beta setting is, well, kind of strange.

Microsoft: Right now our focus is on learning as much as we can from the closed beta period in Russia. Theoretically, any expansion outside of Russia would have to go through region-specific changes to address player expectations.
Note that availability of the game to markets outside of Putin-ville is theoretical at this point. Except not really, of course, and that's where the amusement came from. Because if the alchemy ingredients for mods is a loyal fan-base, something begging for modification, and a capable modding community, everyone had to know that restricting this to Russia was going to be a barrier tested by the public before too long. It turns out that "before too long" meant in the past few weeks, because modders were already posting information on their work to free Halo from Russian imprisonment when Microsoft caught wind and fired off a DMCA notice to the host site.
Modders have been mucking about with the leaked Halo Online files to unlock features, with one team creating a game launcher called ‘ElDorito.’ But all that work came to screeching halt yesterday after Microsoft sent a DMCA takedown notice to Github, who was hosting the files. The site quickly complied. Microsoft sent the following notice to Github:

"We have received information that the domain listed above, which appears to be on servers under your control, is offering unlicensed copies of, or is engaged in other unauthorized activities relating to, copyrighted works published by Microsoft," the company wrote in a DMCA notice to Github.
Under other circumstances, that might be the end of the story, except that these are game modders we're talking about. When they commit, they're committed, and their work tends to mean that they're the sort of types who know how to route around these sorts of attacks. Now, to be clear, Microsoft certainly has the right to try to kill off these modders' work, but they're going to have to try a lot harder than a single DMCA if they want to really have this battle.
"In terms of DMCA/C&D mitigation, we have made redundant git backups on private and public git servers. This is to ensure we will always have one working copy. These are being synchronized so that data is always the same," [modder] Woovie explains. "Further DMCAs may happen potentially, it’s not really known at the moment. Our backups will always exist though and we will continue until we’re happy."

Team member Neoshadow42 says that, as a game developer himself, he sympathizes with Microsoft to a point about protecting ones copyrighted material:

"As someone involved in game development, I’m sympathetic with some developers when it comes to copyright issues. This is different though, in my opinion,” the dev explains. "The game was going to be free in the first place. The PC audience has been screaming for Halo 3 for years and years, and we saw the chance with this leak. The fact that we could, in theory, bring the game that everyone wants, without the added on stuff that would ruin the game, that’s something we’d be proud of."
Making the moral equation here slightly more complicated is that the things that "would ruin the game" don't only refer to the geo-restrictions, but to other game "features" as well, such as in-game microtransactions that almost uniformly piss off the PC gaming community. The modding team has aimed at removing those from the game as well, which, given that this is a free-to-play game, might break the business model Microsoft set up for the game. I expect Microsoft to continue battling for control of its product, as well as for the game's restrictions and microtransactions.

Ultimately, this is a damned shame, because there's a lesson to be learned from all of this and that lesson is not that the modding community is the enemy of the game designer. This is pure market testing at its finest. What this entire episode clearly outlines for Microsoft, were it willing to listen, is that potential customers want wider availability for the beta version of the game (as in, not restricted along national borders) and don't want annoying microtransactions in a Halo game. And if they want those things, fans will be willing to pay for them. Should Microsoft continue with its plan to not meet customer demand, those customers likely won't go unfulfilled, they'll simply find their pleasure in the form of a mod from a strong modding community that Microsoft wants to play whac-a-mole with, rather than listen to the wants of its customers.

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Posted on Techdirt - 7 April 2015 @ 2:03pm

YouTuber Angry Joe Swears Off Nintendo Videos After The Company Claimed His Mario Party 10 Take

from the biting-the-hand dept

Nintendo's never-ending desire to control how YouTubers review its games or do "let's plays" has been laughable from the start. From the trust-destroying agreement YouTubers had to enter into in order to get access to visual content to the beauracratic nightmare individuals had to wade through just to get a video approved for monetization, the whole thing started off on messy footing. And the biggest issue in all of this: Nintendo still can't seem to grasp that these YouTubers are giving the company free advertising. Gamers love the kinds of videos these YouTubers produce. They use them to make purchasing decisions, to become interested in new games, and to fuel word-of-mouth advertising that no trumped up ad campaign could ever possibly hope to achieve. Why make any of that more complicated by creating an approval system for the videos? And, more importantly, why take away the incentive for fans to promote your games by demanding a share of their YouTube revenue?

Well, the program that's a mere few months old has already resulted in the first major YouTuber proclaiming that Nintendo games will no longer be covered. Angry Joe (Joe Vargas) has one hell of an online following in the gaming YouTuber community and, following a spat over his Mario Party 10 video, Nintendo is dead to him.

Joe “Angry Joe” Vargas, who commands nearly two million subscribers on YouTube, has decided to stop covering Nintendo games, following a dispute over a Mario Party 10 video. Angry Joe’s Mario Party 10 video was flagged by YouTube, and while it’s possible for him to keep the video online, he can’t make money off it. It’s easy to imagine why he’s upset.

He tweeted about the decision a few days ago:

That sort of says it all, doesn't it? Millions of gamers who went to Angry Joe for help in where to spend their gaming dollar will no longer be directed by Joe to Nintendo games via reviews and gameplay footage. For Angry Joe followers, Nintendo might as well not exist. What's particularly insane about this is that the YouTuber Nintendo affiliate program described above wouldn't even have applied to this particular video, since some Nintendo games, Mario Party 10 among them, don't even qualify for coverage under the program. Why Nintendo would seek to piss off a popular YouTuber over a video for a game that wouldn't have been granted the okay under the affiliate program is beyond me.

Here's a case where Nintendo has locked up 100% of the ad revenue on Angry Joe's video, despite the fact that it's not Nintendo's copyright-covered content viewers are coming to watch. That's not only unfair, it's biting the very hand feeding Nintendo's coffers and sending the company new customers. This is the first major YouTuber to jump off the Nintendo ship, but it almost certainly won't be the last.

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Posted on Techdirt - 3 April 2015 @ 3:49pm

Del Taco Says Its 'Secret Menu' From Bought-Out Brand Protects Its Mark From Abandonment; Judge Disagrees

from the secret-sauce dept

If you cover enough intellectual property dispute stories, you tend to hear some of the same arguments over and over again. Even if the claims are specious at best, you get used to covering tenuous arguments for customer confusion, to pointing out the problem of non-competition and differentiating markets, and even to discussing just how similar two obviously different logos/names/whatever might be. But every once in a while, you come across a claim that's new and inventive in the most hilariously wrong ways and that, my friends, is a special moment.

Please allow me to introduce you to Del Taco, a large restaurant group operating mostly on the West Coast. All the way back in the late 80's, Del Taco merged with another West Coast taco chain called Naugles. Naugles had a certain beloved reputation with its fans and since Del Taco shut down the last Naugles-name-bearing restaurant in 1995, one particular fan decided to try to bring the name and the menu back, resurrecting it from non-use.

Since 2010, Christian Ziebarth, a Huntington Beach resident, has been fighting for the Naugles trademark, a brand that merged with Del Taco in 1988. In a petition with the U.S. Patent and Trademark agency, Ziebarth argued Del Taco abandoned the brand years ago, legally allowing him to make a claim. The Lake Forest-based company has been fighting him ever since. On Tuesday, a federal panel said Del Taco was unable to prove they had kept the trademark alive since closing the last restaurant in 1995.

“The record unequivocally shows that respondent (Del Taco) ceased operating the last restaurant bearing the Naugles name on October 25, 1995,” the panel stated in an order filed Tuesday. As a result, the panel granted Ziebarth’s “claim of abandonment.”
Sure they did, and it's a very nice end to a trademark story, one which will allow the Naugles name and menu to be brought back from the dead and made available to interested customers once more. We could simply leave things there, except the summary begs the obvious question: if Del Taco stopped using the Naugles name in 1995, what in the world was its argument for non-abandonment? The answer, as it turns out, is a secret, but not the kind of secret I can't share with you.
In court documents and previous statements to the Register, Del Taco has argued that Naugles is part of the company’s heritage, and it has kept the brand alive by consistently offering a secret Naugles menu at its restaurants.
Ah, yes, the old double-secret hidden menu line of reasoning! As far as I can tell, this is a wonderfully new and equally funny legal theory to put forth, one which argues that a trademark, used as a distinguishing indication of a brand for customers, is chiefly utilized via a "secret menu", ostensibly kept "secret" from those same customers, unless you know some kind of special handshake or something. To put this forth is to misunderstand the most basic concepts behind trademark law entirely. As noted above, the court apparently paused its collective laughing long enough to rule in favor of Ziebarth.

And so Naugles returns, assuming Del Taco doesn't have any other creative legal theories based on subterfuge to offer up.

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Posted on Techdirt - 3 April 2015 @ 2:26pm

Fair Use Victory For Broadway Parody Of Three's Company

from the funny-story dept

Here's something you don't see every day: a copyright case in which fair use prevails. David Adjmi produced a play entitled 3C, a parody-take on the classic sitcom Three's Company, the copyright of which is held by DLT Entertainment. After 2 months of off-Broadway production and just before Adjmi wanted to translate the play for literary release, DLT fired off a cease and desist letter. Rather than retreating, Adjmi, with the support of the Dramatists Guild of America, went to court to get his work affirmed as non-infringing, arguing that it is both parody and transformative. U.S. District Judge Loretta Preska ruled in agreement in a whopper of a ruling (you can read the full ruling here or embedded below). Her comments within the ruling demonstrate a textbook understanding of both copyright and fair use.

She writes that the body of copyright law “is designed to foster creativity. It does so by, in effect, managing monopolies in knowledge: granting one in original work to reward its creator, but ensuring it is limited, temporary, and does not operate as a moratorium on certain ideas. The law is agnostic between creators and infringers, favoring only creativity and the harvest of knowledge. Here, ‘further protection against parody does little to promote creativity, but it places substantial inhibition upon the creativity of authors adept at using parody.' ”
In addition to finding that 3C is clearly a transformative work, as opposed to anything resembling blatant copying, this ruling reads like a best-case scenario for those of us that believe all kinds of transformative works building off of existing works are protected, useful, creative and necessary. Adjmi had a message to send and, while the original Three's Company might serve as the starting line for his creative vehicle, the finish line is somewhere far different than that of the original sitcom. Nobody attending the play lacked the understanding that this was something new, something different from the original show, the original show's message, or that the play was anything other than social commentary using a trope-ladened show from the 70's.
According to Adjmi, his 3C was a comment on the "ways the television show presented and reinforced stereotypes about gender, age and sexual orientation" as well as "the times in which the show flourished -- when sexual liberation had begun to reshape American society, and dominant cultural forces like television attempted to channel it in commercially profitable directions, while many forms of sexual oppression continued."
That kind of commentary is important and, even if you disagree with the message, or think that platforming the commentary on a show as silly as Three's Company is misguided, those aren't questions of copyright law. Once the work becomes parody, never mind transformative, there ends the copyright argument. Judge Preska delved into the four-factor analysis of the claim, finding that DLT's claim of direct copying of characters, settings and themes to be baseless.
“Despite the many similarities between the two, 3C is clearly a transformative use of Three’s Company,” she writes. “3C conjures up Three’s Company by way of familiar character elements, settings and plot themes, and uses them to turn Three’s Company’s sunny 1970s Santa Monica into an upside-down, dark version of itself. DLT might not like the transformation, but it is a transformation nonetheless.”
More likely, the more correct assertion would be that DLT might really like money, but they can't get any out of Adjmi just because some elements of Three's Company appear in his parody and transformative play.

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Posted on Techdirt - 2 April 2015 @ 1:50pm

University Of Kentucky Disputes 40-0 Trademark Owned By Someone Else While 2 Wins Away From Achieving That Record

from the confidence-is-high dept

For those of you that haven't been paying attention to the NCAA Men's College Basketball tournament this year, the University of Kentucky is, like, really good. The team, which entered the tournament without a loss on its record is attempting to become the first undefeated champion in several decades, the last occurring when Bobby Knight took a break from throwing chairs across the court to win it all for Indiana in 1976. They are currently two games away from achieving the first forty-and-zero season in college basketball history.

But they're already fighting trademark battles over a perfect season they have yet to attain. The school recently sent a cease and desist letter to one David Son, who has been using the "40-0" mark since 2013 and filed for a trademark back in October of that year.

That's the same time he filed for his company, 40-0 LLC, to be incorporated in the state of Kentucky before dissolving in August 2014. Records with the state show that on March 9 of this year, Son applied and was approved to have the company be reinstated and activated again.

"My client took all the steps he needed to take to establish ownership of 40-0," Son's lawyer, Brian McGraw, said. "There's no evidence that the University of Kentucky owns any rights to 40-0."
It strains credulity to suggest that the timing for the reinstatement and the potential run by the Kentucky basketball team is coincidental, and I'm unclear as to why the reinstatement of the company should be an argument over the previous abandonment of the mark. That said, two years isn't a particularly long stretch of time and, assuming Son's lawyer has done his homework, Kentucky's lack of claim to any mark makes a cease and desist overreach to say the least. Perhaps more interesting would be how this all works if Kentucky can point to some kind of trademark filing, given that the mark would consist both of an attainment the school can't yet lay claim to and that, should Kentucky indeed go 40-0, the numeric record seems to be factual information, likely undeserving of a mark in any case. As the ESPN article notes, opposition to Son's mark would seem to be the more logical reaction from the school, rather than a C&D letter.

What's strange is the accompanying remarks from Kentucky's legal team.
"We are well aware of third parties attempting to capitalize on the historic season of the University of Kentucky men's basketball team," said Jim Aronowitz, general counsel for Fermata Partners. "As the University's licensing agent, we are working to vigorously protect UK's trademark rights in the marketplace from those that use the institution's indicia without permission."
Except the history hasn't been made yet, counselor. Not that such prospective hubris is without precedent. The New England Patriots wanted to trademark "19-0" even after they failed to run the NFL table several years back. Is this a simple matter of trademark "squatting," with Son, who lives in Kentucky and is a self-admitted Kentucky basketball fan, realizing the likely outcome here? Sure, probably, though that claim is made more problematic given the years-old history of Son's mark. Still, factual information is factual information.

The two easiest ways to resolve this? Well, the school can file an opposition to the mark instead of sending off threat letters, or they could simply lose one of these next two games. Then there would be nothing to fight over.

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Posted on Techdirt - 2 April 2015 @ 10:34am

UK School District To Report On Parents Allowing Kids To Play More Mature Video Games

from the nanny-state dept

In case you thought the nanny-state arms race was over, it isn't and, also, who were you kidding? The initiation of laws and rules made by governments desperate to protect their own people from themselves is a pastime at this point, one which has previously seen legislative and law-enforcement actions taken against wearing headphones, smoking, and allowing children to find entertainment in the form of electronics. Now, in the UK, one school district is taking matters into its own hands, stating it will report to police parents who allow their children to play video games with an R18 rating.

This declaration was made in a letter warning parents of the new policy, authored by head teacher Mary Hennessy Jones, who heads up fifteen primary schools and one secondary school in Cheshire, England.

"Several children have reported playing or watching adults play games which are inappropriate for their age and they have described the levels of violence and sexual content they have witnessed: Call Of Duty, Grand Theft Auto, Dogs Of War and other similar games are all inappropriate for children and they should not have access to them. If your child is allowed to have inappropriate access to any game or associated product that is designated 18-plus we are advised to contact the police and children’s social care as it is neglectful."

The letter sent home to some parents also mentions "inappropriate" social media accounts including Facebook and WhatsApp because it could "make them vulnerable to sexual grooming and explicit images."
If this isn't sending a shiver down the spine of any parents out there, it damn well should. The idea that a school district might seek to place itself directly in between a child and a parent when it comes to parenting decisions is somewhat without precedent when it comes to the type of entertainment the child engages in. This leaves aside the question of blatantly illegal content, of course, such as child pornography and/or real-life filmed violence. This is strictly about parents who decide (or choose not to decide) what types of legal entertainment their children are allowed to enjoy. As always, this overstep traverses a bridge built with platitudes about protecting children.

Threatening parents with calls to the authorities for a child even witnessing an adult playing an adult-rated video game is bad enough. Suggesting social media access could result in the same action (the letter does not explicitly say Facebook access will lead to a call to the police, but connects "social media sites" to "these games" in the bulleted list of "actions we are advised to take") pushes this whole thing into the realm of the completely ridiculous. While some parents may feel that it makes sense to restrict their kids' access to social media and violent video games, and there is arguably a place for schools to alert parents when the appropriateness of the entertainment content to which children are exposed inside and even outside of school is questionable, implementing a zero-tolerance policy on the choices of parents about their child's entertainment is the nanny state taken to an absurd level.

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Posted on Techdirt - 1 April 2015 @ 9:09pm

Epic Awards One Of Three Unreal Dev Grants To Makers Of Net Neutrality Game

from the mainstream dept

It's been a unique experience for me as a Techdirt writer, one who does not delve into the net neutrality debates and posts very often, to watch the effect the wider coverage about net neutrality has had on the general public. Without being scientific about it, there are certain markers for story penetration I notice and have noticed specifically when it comes to net neutrality. For instance, a couple of months ago, my father called me up with a simple question: "What should my position be on net neutrality?" The question itself isn't generally useful, but the simple fact that a grandfather is even asking about it means something when it comes to the public consciousness of the topic itself. So too is the appearance of the topic and debates on the Sunday news programs. But maybe the most important indication that net neutrality has become, at the very least, a thing the public is discussing is the topic's appearance in seemingly unrelated venues. Even if the take was wrong, coverage in political cartoons was something cool to see, for instance. But the topic coming up as the theme of a politically-motivated video game is even more exciting.

You may or may not be aware of this, but EpicGames awards grants to developers to make games, called the Unreal Dev Grants. This year, one of the award winners is a team made up of students from the University of Utah, who have developed a game with net neutrality as its theme.

Epic has given Retro Yeti Games a $13,000 grant for its Unreal Engine 4 powered game, 404Sight. The development team is made up of University of Utah students, who decided to create an endless runner game that makes a statement about net neutrality.

According to Epic's description of the game, 404Sight combines elements from games like Mirror’s Edge, Robot Unicorn Attack, and Wipeout. In the game players try to run as fast as they can through levels before they get throttled by the evil Internet service provider (throttling was one of the many nefarious practices used by ISPs that the FCC effectively banned in its new net neutrality rules that were approved in late Feb.).
A funny, if politically slanted, little game, right? Well, 404Sight is not only scheduled for a PC release, but it has its own Steam page and site. You can see a trailer for the game below.

Again, it might not have the pizzazz of a AAA title, but that isn't the point of political commentary. Likewise, I wouldn't expect the sales and playing-base of the game to hit enormous numbers, but it certainly is a sign of the penetration the net neutrality debate is making for something like this to be produced.

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Posted on Techdirt - 30 March 2015 @ 9:01pm

Sanity: Trademark Suit Rules That Florida Pizza Joints Don't Compete With The NJ Turnpike

from the baby-steps dept

While the trademark litigation landscape is littered with lame filings, lamentable rulings, and a litany of liberal interpretations of the law (alliteration!), it's worth noting when we also see sane rulings on trademark lawsuits. So allow me to bring you the news of a federal ruling that acknowledges the fringe and controversial understanding of Florida and New Jersey being very separate and not two entities likely to be confused.

It all started, as most great things, with pizza. Two Florida residents, originally from New Jersey, decided to open up some pizza restaurants. With tastes harkening back to their Northeast roots, Jersey Boardwalk Pizza in Florida decided to play off the logo of the Garden State Parkway logo, as you can see below.

As you can see, the pizza place's logo is a clear homage to that of the Garden State Parkway, which is managed by the NJ Turnupike Authority. There's simply no disputing it. And, if you had only a minimal understanding of how trademark law works, you might not be surprised that the Turnpike filed a trademark suit against the pizza-slingers over the similarities.

The authority’s suit, filed last week, alleges service mark infringement, unfair competition and other claims against Jersey Boardwalk Pizza. The restaurant’s logo has the same green-and-yellow color scheme, including an outline of the state, as the Parkway sign. But on on the restaurant logo, “Garden State Parkway” has been replaced by "Jersey Boardwalk Pizza Co.” with the words “Subs. Cheesesteaks. Pasta" below that.

The suit claims the restaurant’s logo is so similar to the Parkway sign as to give the impression that the two are linked, the Journal said.
Regular readers here are probably already either laughing or shaking their heads. The New Jersey Turnpike is many things, and not all of them bad, but I'm having trouble thinking of a scenario in which someone thought it sold pizzas. Couple that with the fact that these pizza spots are located solely in Florida, which is demonstrably a different location and market than New Jersey, and the whole thing gets sillier.

Fortunately, the judge presiding over the federal case agrees, having recently dismissed the case completely.
Judge William Martini dismissed the suit filed by the New Jersey Turnpike Authority against Jersey Boardwalk Pizza, saying the Florida business had "minimum contacts" with state residents aside from online sales of branded merchandise.

"Although Plaintiff may have felt the brunt of harm in New Jersey, it could not be said that New Jersey is the focal point of the offending activity," Martini wrote in his decision.

"The defendants are a Florida company that doesn't do any business in New Jersey," said Justin Klein, the attorney who represents Jersey Boardwalk Pizza. "We're happy with the outcome and hopefully we can put this behind us and focus on our business."
This would normally be the end of the matter, an end where one would hope the folks a the Turnpike Authority had learned their lesson, and perhaps a bit about how trademark law works. Not so, unfortunately, what with a spokesman for the Turnpike indicating that they would pursue the matter further and look for legal options outside of the Trademark Appeal Board.

Keep digging, I guess, but I'm still certain Florida and New Jersey ain't the same place.

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Posted on Techdirt - 27 March 2015 @ 6:18pm

Both The NFL And MLB Look To Expand Streaming Offerings By Ending Local Blackouts

from the bye-bye-cable dept

Bear witness to the genesis of a new era, fellow sports fans. I've begged and pleaded in the past for the major professional sports leagues to take the harness off of the ability to stream games. Even as the trend of cord-cutting has progressed along nicely, I have always argued that the only dam keeping a flood of cord-cutters at bay has been professional sports broadcast deals. Those deals have almost universally been saddled with local blackout restrictions, making streaming games all but useless for the majority of fans. The past few years, however, have seen inched progress towards wider availabitily for streamed offerings. The NBA's most recent contract went out of its way to make sure streaming is expanded, for instance, not to mention the deal Dish and ESPN made to make the cable channel's broadcasts more accessible for streaming. But those were baby steps, too often leashed by a cable subscription requirement.

But, now, the NFL is finally dipping its toe in the streaming waters. Please understand that, even if this is just another inch gained for streaming, this is a huge deal.

On Monday, the NFL announced the Oct. 25 regular season game between Jacksonville and Buffalo will be put up for bid on national digital platforms. The game is being played in London, meaning the broadcast will begin at 9:30 a.m. ET and 6:30 PT. That's not exactly prime time for U.S. fans, or broadcast television, but it is 'prime time' in China, where the NFL is struggling to gain a toehold.

"It's a one game test. We will evaluate fan feedback," NFL spokesman Brian McCarthy said via an email exchange. "It's too early to tell about the future [of streaming games]. Will test this season with the one game and evaluate after."

Separately, the NFL said it's going to drop its so-called blackout rule, which prevents local broadcasts of games if they're not sold out 72 hours before kickoff. NFL media executive Brian Rolapp said the league is "testing alternative ways to distribute games," The NYT reports, and acknowledged the obvious: "The world is changing very quickly."
If this seems like a small step, you don't know how savvy the folks in the NFL's media department are. They absolutely know where the trends have us all heading regarding media consumption and I can promise you they are keenly aware of how many people are currently watching streaming NFL games on illegitimate sites. The most consumed sport in the United States doesn't turn on a dime, but the league also doesn't put up this kind of test balloon without having a fairly certain idea of how it's going to play with its customers. Assuming the quality, cost (free?), and accessibility of this test game is anything remotely comparable to, say, baseball's MLB.TV offering, expect this to end up as an insanely successful test-run. I'd actually say that this test game feels more like the NFL looking for an excuse to jump fully into a streaming offering than some kind of fact-finding mission. After all, you only drop the blackout rule in conjunction with expanding streaming if you expect the locals to run with the offering full-force. And they will, I assure you.

The NFL's DirectTV and network deals mean streaming won't explode immediately, but everyone can see what the NFL is doing to position itself for the future.
Given its agreement with DirecTV and television networks -- the NFL signed $27 billion worth of contracts in 2011 -- the league will be restricted on what it can offer online, at least in the near term. But the NFL is "a master of dicing and splicing content in order to extract the greatest value," [media analyst Walt] Piecyk says. "It's not like they're committing to put a bunch of games [online] but I think they want to get more comfortable so if Google or Apple or Amazon comes down the pike and says 'we want to buy a larger chunk of games' they can get comfortable on tech front."
And speaking of MLB.TV, reports are that professional baseball is due to get its own expanded streaming offering. The MLB.TV service has long been the standard in sports streaming, with no other league offering really even coming close. The problem, however, was that local games were blacked out, so the service was only useful for out-of-town fans or die-hard baseball fans that will watch any MLB game any time it's available (me, for example). If recent reports are to be believed, however, MLB is looking to take a small step to changing the blackout rules for streaming.
Major League Baseball is expected to announce in the next few days a deal with a national distributor, like a wireless provider, to stream local games of every MLB team, a source close to the situation said Thursday.

To stream games of the New York teams, fans would have to be a customer of the distributor and pay for the YES Network or SNY, the regional sports networks (RSNs) that carry Yank and Met games, respectively. The price to stream has not yet been set.
This is an imperfect first step, of course, particularly as it carries with it the anchor of either a cable subscription, a specific wireless device provider, or both, but it's an important step in the right direction. It's something akin, actually, to the DirectTV deal the NFL has, except that it's more mobile and more widely available on a variety of devices. You should also expect any deal MLB signs for this streaming to be less locked in than the NFL/DirectTV deal, because, again, everyone knows where this is all heading. And, if the reports are true, even the television broadcasters are resigning themselves to reality.
Talks between MLB and Fox Sports, which owns 15 RSNs, including YES; Comcast, which owns six, including a minority stake in SNY; and DirecTV, which owns four, have been on-again, off-again for more than a year. The talks have accelerated in the last two weeks, and both sides are optimistic a deal will be reached before Opening Day, April 6. Under that agreement, fans would deal directly with their pay-TV provider.
Is it as perfect a solution as simply working out deals to unleash the local broadcasts on the MLB.TV stream that customers have been watching all the non-local teams on? No, absolutely not, but this first iteration's imperfection will only catalyze MLB to go the correct route in the future. Because the trends are clear: streaming is up and cable subscriptions are down. Even if the NFL and MLB don't get this right the first time, they will absolutely be forced to get it right in the near future.

Either way, one eventual reality is coming ever-closer to fruition: cable television, and perhaps television as a whole, may soon be over.

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Posted on Techdirt - 27 March 2015 @ 3:50pm

Blu Cigarettes Sues Blu Ale House Over Blu Logo

from the where's-the-e? dept

I can't honestly claim to know a whole lot about e-cigarettes. That's because when I was still smoking, I smoked the old fashioned kind of cigarettes. You know, the ones made from tobacco, that cured acne, and that made my breath smell as cool and fabulous as a pub toilet. Plus, everyone was doing it and my lungs weren't going to give themselves cancer, so you know. But, even knowing little about e-cigarettes, I know enough to know that they aren't ale houses located in Riverdale, New Jersey. This is a conclusion that the lawyers over at Lorillard, makers of "blu" e-cigarettes, think is likely to escape the larger population, as they have decided to file a trademark dispute against Blu Alehouse over its name and logo.

The lawsuit filed by Lorillard Technologies Inc. centers on a logo that NJ Ale House LLC is using at its Blu Alehouse in Riverdale, N.J., Law360 reported. According to the news website, the logo features "the word 'blu' surrounded by smoke or flames." The subsidiary of Greensboro-based Lorillard (NYSE: LO) claims that the logo is too much like the branding for blu eCigs.
Let's leave everything else aside for a moment and simply take a look at the two logos to see if they look substantially similar on their own. First is the logo of Blu Alehouse. Note that this logo normally appears alongside the full name of the establishment.
And now the logo for blu Cigarettes.
Neither logo is particularly complicated, but even failing to correct for the simplicity of the designs, the two logos are distinctly different. If both logos didn't incorporate the word "blu" in them, there would be absolutely nothing to argue about here. And, again, that's strictly taking the logos into account with no other context. Because once we use the likelihood of customer confusion and the markets of competition tests, I'm failing to see how this wasn't tossed immediately upon a judge's review. An ale house isn't competing with cigarettes in any way. Add to that that it would be quite difficult for even the most moronic and hurried citizens to mistake the two companies for each other, what with the ale house's logo typically appearing alongside other signage that identifies itself as an ale house.

Strangely, an actual judge reviewing the claim thought differently.
U.S. District Judge Kevin McNulty found that Lorillard — along with another subsidiary, LOEC Inc. — made "plausible claims for trademark infringement and unfair competition," and he ruled that the case could go on, Law360 reported.
How is the claim of unfair competition even possible? The two companies aren't competing with each other at all. The only mention of competition in the court filing by Lorillard is over the fact that sometimes they advertise their cigarettes at drinking establishments.
LTI and LOEC allege that Blu Alehouse bar and restaurant is directed at a similar consumer base as LTI and LOEC's BLU products because BLU products are promoted at bars, restaurants, and lounges.
But that doesn't actually put the companies in competition with one another. That would be like Budweiser claiming that Big Buds Magazine, here to serve all of your marijuana information needs, infringed on Budweiser marks because they occasionally sell beer to high people. Why should that matter at all?

Hopefully as this case moves forward, a more sensible conclusion is reached.

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Posted on Techdirt - 27 March 2015 @ 1:30pm

EA/Origin/Something Locks Benchmarkers Out Of Battlefield Hardline After Too Many GPU Swaps

from the punishing-the-innocent dept

Origin, Electronic Arts' online store and license-check-in system is a hilarious study in how to build a platform to serve legitimate customers and identify infringing copies of the game that both inhibits legitimate customers and misidentifies what is an infringing copy of a game. Add to this the fact that the Origin platform has in the past been found to be in and of itself a massive security exploit and one wonders how the service is still around today. But around it most certainly is, and still screwing with legitimate customers, too, as a group attempting to run benchmark tests on EA's Battlefield Hardline found out.

Guru 3D writer Hilbert Hagedoorn has discovered some pernicious DRM in Battlefield Hardline while attempting to do a "VGA graphics performance" test with the game for a feature article (thanks Blue's News). Apparently the DRM monitors hardware changes - something Hagedoorn was doing a lot of when testing different cards with the game - and when it hits a certain threshold it locks the user out of the game.

"Here's what EAs DRM is doing," Hagedoorn writes. "They don't just verify the number of PCs you work on slash use, nope .. they dare to monitor hardware changes now, which I am sure is a privacy breach on many levels. So once we insert new hardware (graphics cards) the hardware id # hash changes and if that happens a couple of times they are rendering your activation invalid."
For the record, EA has already responded to Game Politics with a wonderfully silly answer: it ain't our DRM, it's the Origin DRM, yo!
"Origin authentication allows players to install a game on up to five different PCs every 24 hours," the EA spokesperson told us this morning. "Players looking to benchmark more than five hardware configurations in one 24 hour period can contact our Customer Support team who can help."
Hoo-boy, EA, that's quite a trip of a rebuttal, considering Origin is your platform and the check-in system you're describing is in fact a form of DRM. So a statement that essentially boils down to, "It wasn't our game DRM, it was our platform DRM!" is absolutely useless. Is the Origin authentication that lets customers install on five different machines in a day fairly lenient as these things go? Sure, except for a couple of things. First, it clearly doesn't work all that well, since simply swapping out a GPU suddenly counts as a whole new machine. Second, why have this restriction at all? If your platform can't be relied upon to properly determine legitimate copies of games, then ditch the platform. Don't back that failure up by annoying paying customers with restrictions designed to buttress your failed attempts.

But all of that may end up being besides the point, because Hagedoorn's early point is the key: why is EA sniffing around our hardware configurations? The company had damned well better be sure that there is something in the EULA that allows for them to sniff out hardware swaps, something quite common amongst PC gamers, nevermind benchmarkers. But even if the EULA allows for this... what the hell?

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Posted on Techdirt - 27 March 2015 @ 12:28pm

German Basketball Team Loses In Close Match With A Microsoft Windows Update

from the boom-shakalakah! dept

Windows: the still-dominant operating system is the 800 lbs. gorilla, so one fully expects to see tons of insult-darts shot at the thing to try and tranquilize it. And, in the age of technology fan-boy-ism, some techie folks are big on drawing lines in the sand and loudly proclaiming the superiority of one piece of software over another. But, still, when your German basketball team faces relegation into a lower class of league because a windows laptop crashed and then ran an update just before game time, you can kind of understand if they're pissed off about it.

The March 13 match between the Chemnitz Niners and the Paderborn Baskets was set to begin normally, when Paderborn (the host) connected its laptop to the scoreboard in the 90 minutes leading up to the game. In an interview with the German newspaper, Die Zeit (Google Translate), Patrick Seidel, the general manager of Paderborn Baskets said that at 6:00pm, an hour and a half before the scheduled start time, the laptop was connected "as usual."

"But as both teams warmed up, the computer crashed," he said. "When we booted it again at 7:20pm, it started automatically downloading updates. But we did not initiate anything."

After all the updates were installed, Paderborn was ready to start the game at 7:55pm.
Oops. Paderborn ended up winning the game, but Chemnitz filed a protest, arguing that the delay in starting the game constituted a violation and that Paderborn ought be penalized. The league agreed, taking a point in the standings away from Paderborn, which lowered its rankings such that it now faced relegation. Relegation, for you Americans who aren't Premier League Soccer fans, is a shift in which leagues a team plays in based on the year's performance. For Paderborn, this will mean not even being able to play at the championship level next year, instead being forced to play in the lower "ProB" league.

Seidel is pissed, of course.
"You can’t blame Chemnitz," Siedel added. "But as an athlete and a man, let me of course tell you something else. We beat Chemnitz twice in sportsmanlike, tight games. Therefore, this entire issue has nothing to do with sports."
Nope, just a Windows update costing you a potential championship next year. N00bs.

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Posted on Techdirt - 26 March 2015 @ 9:07pm

Let's Do Business: How Lifting The Embargo Has Opened The Door For Cuban Trademark Suits

from the hola! dept

I'll miss the Cuban embargo. The easing of relations that it brings with it will likely mean the end of the 1950s-style spy games and crazy plots -- like the CIA plot designed to make a leader's beard fall out. Instead, we've finally decided that the United States is open for Cuban business. And you know what that means: trademark lawsuits!

The U.S. Supreme Court recently ruled in favor of a Cuban state-owned company and refused to intervene in a dispute over the “Cohiba” trademark. This is the most recent development in the long-standing rivalry between General Cigar Co Inc., an American (and Scandinavian) company, and Cubatabaco, a Cuban company.
How fun! We finally open up the borders for some business with Cuba and one of the Castro companies decides it's trademark time! Keep in mind, of course, that the state that owns Cubatabaco is a communist nation, but not so communist that they'll refuse to use our capitalist tools to make that money. This dispute actually goes back nearly two decades, with Cubatabaco originally filing a trademark claim in 1997, which was eventually tossed in 2005 by the Second Circuit court, finding that any transfer of property, including a trademark, to a Cuban company would violate the embargo.

But now that the embargo is gone, Cubatabaco has refiled, with a lower court ruling that the Cuban company could challenge General Cigar's mark with the USPTO even before the embargo was lifted -- a ruling the Supreme Court has refused to send back for review. So there appears to be nothing standing in the way of a trademark challenge.

All that said, it's difficult to see how valid a challenge is, actually, given several factors. First, the two companies as yet don't compete in the same markets, due to the legacy of the embargo. Second, the word "cohiba" might not deserve a trademark held by anyone, given that it is simply a foreign word that means "tobacco" in Taino, a language of the Caribbean. That would be like getting a trademark on your beer brand, Cerveza.

However this turns out, welcome officially to business in the States, Cuba! Now that the embargo doesn't keep property from transfering your way, it's all trademark, patents and copyright from here on out!

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Posted on Techdirt - 25 March 2015 @ 9:01pm

IOC Forces School To Remove Rings From Crest For Some Reason

from the champions-of-bullying dept

Have you thought about the Olympics lately? No? Then I guess you didn't drive past any of the tiny little schools in this itty bitty school district in the Poconos in Pennsylvania that serves a population of almost twenty-five thousand whole people, because, if you had, the International Olympic Committee is quite certain you would have been all, "Oh, look, that must be a school run by the Olympics for some reason." Otherwise, the IOC's pressuring the district to re-draw this district crest would make no sense.

You can probably spot the source of the problem immediately. It's those damned rings at the top-left, of course, and the IOC ain't happy that some stupid little learning institution could think that those rings could be incorporated in a logo. After all, the Olympics has nothing to do with learning, with a cooperative spirit, or with domestic institutions. Which is exactly what has me questioning why there is any trademark standing to begin with. After all, the two entities aren't competing in any kind of marketplace and the IOC, notoriously trademark-protect-y, has allowed the Wallenpaupack's district crest to exist since the 1970's.

Now, however, the IOC has convinced the school district that it must come up with a new crest. Quite unfortunately, the IOC even appears to have district officials convinced that the trademark claim is all super-legitimate.

“They obviously have a legitimate concern. It’s a trademarked item. We do have to come up with a plan of phasing it out,” said Superintendent Michael Silsby. Phasing out the rings because Silsby said an attorney for the U.S. Olympic Committee called last week, saying the school could no longer use the rings to represent athletics.
No, that isn't a legitimate concern, even if narrowly applied to athletic teams, because there's no commerce or competition here. This was simply the IOC, through the domestic USOC, bullying a school because it felt like it. Or maybe the USOC lawyers found some downtime and decided to fill it up smacking around schools. Either way, nothing about this is born out of a legitimate concern.

The district is reportedly going to have students create the new crest, which is all well and good, but that doesn't remove the bile from my mouth over the USOC's actions. You folks must be so proud...

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