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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 - 19 October 2018 @ 3:23am

As Predicted, Australian Government Looks To Creep Site Censorship Into Search Censorship

from the creep-creep-creep dept

Earlier this year, we discussed Australia's Department of Communications asking for feedback on the effectiveness of its site-blocking policy after it had been in place for several years. The copyright industries both local and foreign leapt at the chance, making two divergent claims. Claim one: site-blocking is working really, really well and should be continued. Claim two: site-blocking is being vastly undermined by, you guessed it, Google, and the government should extend site-blocking into search-blocking as a result. We made the point at the time that this type of thing occurs like clockwork: you open the door to some censorship and those cheering it on will attempt to expand it further.

Well, after collecting its feedback, the Australian Department of Communications has come out with proposed amendments to Australian copyright law that would, you guessed it again, force search engines to censor links to so-called "pirate sites."

The aims of the Copyright Amendment (Online Infringement) Bill 2018 are fairly straightforward.

Where existing legislation compels ISPs to prevent access to sites listed in an injunction, the amendments attempt to deal with sites that “have started to provide access to the online location after the injunction is made”, meaning that subsequently appearing mirrors and proxies can be dealt with much more quickly.

Turning to the perceived problems with search engines, the amendments will allow rightsholders to apply for injunctions that will not only target infringing ‘online locations’ but also their appearance in search results.

Again, this is plainly stupid. Search engines have one goal if they want to be successful: return the most relevant search results to a user's query. That's it. The problem in all of this is that the Australian public searches for infringing content. For a company like Google to kneecap its own usefulness in this manner makes no sense and, again, opens the door to force search engines to behave in all kinds of ways that governments may desire. And, yes, that's a slippery slope argument, except we're already inching down this particular slippery slope, making it a question of just how far down Australia will slide.

And, because of course, the requirements placed on search companies are both vague and onerous.

Companies including Google will be required to “take such steps as the Court considers reasonable so as not to provide a search result that refers users to the online location.” Search providers will also be compelled to deal with the subsequent appearance of mirrors and proxies by ensuring that these don’t appear in search results either.

In a statement published this morning, the Department of Communications offered the following summary.

“The Copyright Amendment Bill will ensure a broader range of overseas websites and file-hosting services widely used for sharing music and movies are within the scope of the scheme, and provide a means for proxy and mirror pirate sites to be blocked quickly,” the statement reads.

Let's be clear about what this is. This new legislation is a national government requiring a useful internet tool to be less useful to the average Australian citizen that is searching the internet, simply as a favor to a few big content players in both Australia and, what will be more common, abroad. That's a clear disservice by the Australian government to its own people.

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Posted on Techdirt - 18 October 2018 @ 7:29pm

SLCC/FanX Gets A Stay On $4 Million In Legal Fees For SDCC Pending Appeal

from the by-a-thread dept

The whole saga of the trademark dispute between the famous San Diego Comic-Con comics convention and the smaller Salt Lake Comic Con has been a long and stupid one. Despite everyone with a working brain knowing that the term "comic-con" is both generic and descriptive, SDCC has a trademark on the term that it managed to wield like a legal sword attempting to slay SLCC. While a jury trial returned only a $20k judgement, the court then awarded $4 million in legal fees in favor of SDCC, arguing that SLCC's legal team attempted to jam up the trial process and timeline with its tactics. After all of this, SLCC changed its name to FanX, a whole bunch of other conventions proactively changed their own names, and FanX promised to appeal everything.

But it was an open question if SLCC/FanX would survive long enough for the appeal to take place. A $4 million dollar payout to SDCC, according to SLCC, would simply have crippled it and put it out of business altogether. This was the argument made to the appeals court, in which SLCC/FanX asked for a stay on the payments pending the appeal process. Fortunately, the court agreed to delay the attorney's fees payments.

With the judgment set to come due Oct. 22, FanX organizers sought a stay from the 9th Circuit Court of Appeals last week, arguing paying the bill in full now would "destroy" the business, hurt Utah's economy and prevent them from continuing with their appeal.

However, organizers argued that if they were allowed to wait to pay, FanX would be able to continue operating and, if they ultimately lose their appeal, they could pay the judgment in full.

In FanX wins the appeal, the judgment could be invalidated.

And not just that, but FanX is also seeking to have the entire verdict that resulted in this award appealed as well, arguing that its lawyers were prevented from making sound arguments that "comic-con" is a generic term, which it absolutely is.

But two things should be immediately obvious. First, this stay is perfectly just. A legal fees award that would cripple a party from defending itself on appeal is the sort of thing that seems purely outside the realm of how the legal process is supposed to work. The second is that this attorney's fees award is absolutely just as bonkers as I claimed it was when it was announced. To have that kind of number in fees awarded attached to a judgement that was in the five figures breaks all barriers of simple common sense.

At least this way, we'll get to see FanX take this to appeal.

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Posted on Techdirt - 17 October 2018 @ 7:34pm

ISU Student Groups Changing Names En Masse To Protest School's Ridiculous New Trademark Policy

from the no-pride-allowed dept

You will recall that over the past few years, we have been discussing how Iowa State University essentially did everything wrong concerning an alumni group running a pro-marijuana organization that made use of school symbols and iconography. After initially approving the group's use of school trademarks, several members of the state's conservative legislature got involved, leading to the school rescinding that authorization. NORML, the name of the group, sued the school, claiming all of this was a violation of their free speech rights. The courts agreed, eventually to the tune of a $600k judgement, meaning that school wasted over half a million dollars of taxpayer money to fail at trademark bullying.

You might have expected that this would serve as a delightful education for the school as to the reasons why they don't want to be a trademark bully. You would be wrong, of course. Instead, the school's next step was to immediately rewrite its trademark use policy, making it laughably restrictive and essentially attempting to give the school broad oversight over all uses of its iconography by student groups. This, predictably, has led to a full on revolt both by many of the school's student organizations and its student government.

To start with the student organizations, they are largely dropping ISU connections from their name and branding like a hot stone.

A year ago, Iowa State University's student chess club was easily tied to the university through its name. Now, it’s the Ames Collegiate Chess Club. The student aviation group had been the Flying Cyclones. Now, they’re the Ames Flyers. And the student space club, which had had “Iowa State” in its name, is Ames Space Teaching and Recognition Association.

Why the changes? University administrators over the summer tightened Iowa State’s trademark policy by limiting most student organizations' access to trademarked references to the institution.

As noted elsewhere in the post, ISU has a habit of puffing its chest out over its large roster of student-led organizations and clubs. Yet, because of its heavy-handed new policy, those ties to the university are being severed, taking those bragging rights away. Where ISU once could be seen as having a rich tradition of clubs and organizations reveling in student participation, a separation line has now been drawn. All because the school wants to choose control over culture.

And the students are pissed.

The policy so riled student government members that they unanimously approved a resolution this week requesting the administration, at least temporarily, backpedal from the guidelines that were posted Aug. 1 on ISU’s Trademark Licensing Office website.

"The administration went about this poorly," Michael Tupper, an ISU student government member, said at this week’s meeting. "They implemented the change in the middle of the summer, when there were no students on campus."

In addition, Tupper said during the meeting, “We’ve been told multiple times that the change was not in direct result to the lawsuit. … That is not true.”

A school spokesperson states that the school will review the resolution and then meet with the student government, but it's painfully obvious that it would rather have avoided student interaction altogether through sheer timing. Making such a policy change where the primary effect will be felt by student groups when students weren't even on campus isn't particularly subtle. Meeting with the student government now is CYA, not some kind of olive branch. And that's likely why the student government is not screwing around here.

Some at this week’s student government meeting suggested that if university officials don’t follow through on any requests in the resolution, other actions could be taken, including votes of no confidence or censure.

It's a problem entirely of ISU's own making. And, given the culture that is supposed to be fostered on college campuses, this is about as wholly unnecessary as it gets. As entertaining as it is watching an institution like ISU learn absolutely all the wrong lessons from a well-publicized trademark dispute, it has to be just as frustrating for the students on campus.

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Posted on Techdirt - 16 October 2018 @ 7:46pm

Art, AI & Infringement: A Copyright Conundrum

from the beep-boop-beep dept

I don't want to waste any space with a long introduction, other than to say it's always incredibly frustrating when artists come up with inventive new ways to produce artwork, only to have those efforts met with stupid intellectual property issues. Experimentation is key to the artistic world and we've begun to see how artists are incorporating technology into what they produce. This should be exciting, but all too often that excitement is plagued by legal issues.

A case in point of this would be Canadian artist Adam Basanta, who has come up with a bonkers and very cool method for both producing machine-generated art and then validating that art for human consumption by comparing it to real-world artwork made by us lowly apes. Let's start with his setup.

Broadly, Basanta’s machine has two stages: creation and validation.

Creation happens with a hardware setup that Basanta likens to a Rube Goldberg machine: two computer scanners tipped on their sides and pointed face to face, endlessly scanning each other, and the results – influenced by shifts in the room’s lighting, randomized settings and an automatically moving mouse – are interpreted by a computer and turned into colourful abstract pictures.

The second stage is validation. Another computer running a custom-built program automatically checks each image against an online database of real art made by human hands. If the machine-made image is similar to one that has been human-made, the computer dubs it a success and keeps it; if there is no match, the image is deleted forever.

If that doesn't get your heart beating a little faster, you simply don't care about art. This setup is, at the very least, incredibly interesting, and Basanta's method for validating whether the art produced by the machines is good enough for human consumption or not kicks the interest level into overdrive. His setup generates something like a thousand images a day, with a tiny fraction of that being deemed worthy of retention. The whole thing was good enough to warrant an art exhibit in Canada and Basanta has featured many of the images on his website as well.

And that's where the trouble started. Artist Amel Chamandy has alleged that Basanta violated her copyright on a piece she created called "A World Without Trees", as well as the trademark rights she has on her own name. Both claims stem from one of the pieces Basanta's machine setup used to validate its own artwork against and the naming convention it used to denote the new pieces it created.

In June, someone – it’s not clear if it was Chamandy herself or someone who works with her – did a Google search for her name and the name of a 2009 wall installation she made called Your World Without Paper.

The first result in the Google search, according to documents filed in court, was Chamandy’s website. But the second and third results pointed to Basanta’s website, because his machine had named one of its own pictures after one of hers. The offending image, some magenta lines on a field of indigo, is called: 85.81%_match: Amel Chamandy “Your World Without Paper”, 2009.

The trademark claim rests solely on the name of the file including Chamandy's full name. It's a silly argument for trademark infringement as the whole point of including the name is to weigh the new art piece against her specific work, which necessarily involves anyone viewing these pieces being informed that they are not the work of the original author. The whole purpose of the validation process is to show what differentiation remains between the new piece and the human-made example. That's not trademark infringement. It's not really even close.

As for the copyright portion of this, it's important that you not be fooled by the percentage the machine setup notes in the validation process. You might think that an 85% match would mean the two images are very similar and would share a ton of features that would link the two in the viewer's mind. That's not even close to being the case, as you can see just how different the two images are below.

If that looks like copyright infringement to you, you need your head examined. Indeed, the entire setup here is defined by the fact that this is a totally independent creation -- and the "validation" process only serves to highlight that there is no copying. Indeed, the idea that independent creation is a defense against copyright goes back ages, and this is quite obviously an independent creation. The only reason the other artwork is mentioned at all, because it's the literal coincidence that the computer judged these images similar that leads to the name being mentioned. Judge Learned Hand famously wrote:

... if by some magic a man who had never known it were to compose anew Keats's Ode on a Grecian Urn, he would be an "author," and, if he copyrighted it, others might not copy that poem, though they might of course copy Keats's...

This is a case where "some magic" took place, and one artist "composed anew" something that a computer (but no human eye) judged to have a decent level of similarity to another's work.

Were her name and the name of her work never mentioned on Basanta's site, she simply never would have noticed. Nor would anyone else. Ever. And, yet, because Basanta's entire project centers around pointing out the kind of quality his machine setup can produce in artwork by comparing it to real-world creations made by humans, suddenly Basanta is mired in intellectual property claims.

And that's what sucks more than anything. One artist suing another, on incredibly specious grounds, is a betrayal of how art is created in the first place. If anything, Basanta was crediting Chamandy and pointing people toward her wider works by doing things the way he did. And this is the thanks he gets, because copyright.

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Posted on Techdirt - 15 October 2018 @ 7:42pm

African Nations Rife With Illegitimate Collection Societies: Nigeria Files Criminal Complaint Against COSON

from the collecting-crimes dept

You may recall that we have discussed the complete chaos that is copyright collection societies in Kenya over the past few years. At issue in Kenya is that the country has multiple collection societies, which are overseen by a government sanctioned body that can request to look at their books to make sure artists are being paid appropriately, and officially licenses the collection societies themselves. Some of those collection groups have apparently not felt the need to respond to requests for oversight, leading the government to pull or not renew their licenses. Instead of being the end of the story, a number of those collection societies continue to threaten people and collect royalties anyway, acting essentially as an illegal extortion outfit.

Kenya is not the only African nation going through this, it seems. Across the continent on the opposite coast, the Nigerian Copyright Commission has been going through similar issues, specifically with a collection group called COSON.

The Nigerian Copyright Commission has filed a criminal charge against the Copyright Society of Nigeria, its Chairman, Chief Tony Okoroji, and principal officers for carrying out the duties of a collecting society without the approval of the Nigerian Copyright Commission.

The NCC, in a statement signed by its Director-General, Afam Ezekude, and made available to our correspondent on Tuesday, said, “In Charge No FHC/L/338C/18, filed on October 8, 2018 at the Lagos Division of the Federal High Court, the accused persons were alleged to have performed the duties of a collecting Society by demanding and collecting royalties from Noah’s Ark of 9 Sowemimo Street, GRA, Ikeja, Lagos.”

The commission also accused COSON of carrying on the business of negotiating and granting licences on behalf of copyright owners without its approval, thereby committing an offence contrary to and punishable under sections 39 (4), (5) and (6) of the Copyright Act Cap C 28 Laws of the Federation of Nigerian 2004.

This is now becoming a trend, with collection societies in several African nations simply and rather brazenly carrying on the business of shaking down businesses for music licensing fees, even beyond the point of their being legally allowed to do so. Frankly, given the copyright collection industry, this is not a huge leap to take. These societies already have many of the hallmarks of extortion rings, with their undercover "patrons" at businesses and their threat letters that might as well begin with, "Nice business you have there. Be a shame if anything happened to it."

But what this really shows, more than anything else, is how many of these copyright collection groups are devoid of any interest in the law, in the artists they represent, or in acting with even a modicum of ethical standards. Instead, these are money-making operations, and that money-making doesn't stop just because the law says they have to.

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Posted on Techdirt - 12 October 2018 @ 7:39pm

Warner Media Opposes Trademark Filed By Actual 'Wicked Witch' Over Its Wizard Of Oz Trademarks

from the witch-marks? dept

Thanks to the convoluted nonsense that is copyright law, readers here will likely be familiar with the insanity that is intellectual property rights revolving around The Wizard of Oz. Thanks to some of the works being in the public domain, some of them being under copyright, and the courts mostly treating all of this on a case by case basis, it's fairly clear at this point that basically nobody knows who is allowed to do what with anything associated with The Wizard of Oz. Usually, issues relating to the work revolve around this axis of confusion.

But that's less the case when it comes to trademark issues. For all of its flaws, trademark law is blessedly limited to public confusion and true competition within a specific market. That's what makes it bewildering that Warner would bother to oppose the trademark application filed by a pagan priestess for her "Wicked Witch Mojo" brand.

Turner Entertainment Company has filed an opposition with the U.S. Patent and Trademark Office to stop witch and Pagan elder Dorothy Morrison from trademarking her brand name ‘Wicked Witch Mojo.” Turner Entertainment, a subsidiary of AT&T’s WarnerMedia, serves as the copyright holder for a large library of productions made by its sister subsidiary Warner Bros. Entertainment Inc. (aka, Warner Brothers), that includes The Wizard of Oz (1939).

Morrison said, “I was stunned. I couldn’t believe that Turner Entertainment could have A] been allowed to trademark the phrase ‘Wicked Witch,’ and B] that they had accused me of deliberately weakening their trademark.” She said that, after the shock wore off, she was just angry. “It occurred to me that if Turner saw fit to go after me, there was nothing to stop them from going after anyone in the magical community who’d ever used that phrase. And I couldn’t, in good conscience, allow that to happen,” she explained.

And so she contacted a lawyer and there is now a case pending. Warner's lawyer apparently discussed the case with her lawyer, refused to budge on the opposition, and suggested that she could be sued for copyright as well for using some imagery in her branding, specifically red-heeled shoes on her business cards. That, and of course, the characters that Warner claims are being referenced in her name and branding.

And that's where we get right back into the confusing bullshit.

Morrison’s attorney Richard Bullock argues otherwise, saying that these images and words recall the books, not the movie. Bullock writes, “The marks are derived from the writings of L. Frank Baum’s novel The Wonderful Wizard of Oz and its various sequels.”

He also argues that Turner’s trademarks are only limited to certain product areas, and that Turner is not likely to be moving into the metaphysical arena; nor will Morrison be producing products for the mainstream toy or clothing markets, and other industries specified within Turner’s trademarks. Bullock wrote that there would be “no likelihood of confusion.”

The latter part referencing the trademark oppositions are almost certainly valid. Nothing in Morrison's actual trade dress brings The Wizard of Oz to mind at all, regardless of its various forms. Certain references to that work, such as her online marketplace being dubbed "The Flying Monkey Express" can be said to reference the books, not the films. And that really only matters on the copyright question, for which a suit hasn't been filed. On the trademark piece, it really should be enough that Warner isn't in the religion business. With no crossover of marketplaces, there is no serious concern for public confusion.

So, in the end, we have a large company trying to push around a real life wicked witch over a specious trademark claim. Warner executives should be thankful, I suppose, that Morrison doesn't have an actual army of flying monkeys to set upon them.

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Posted on Techdirt - 12 October 2018 @ 1:36pm

The American Idol People Bullied A Local County Fair Out Of Its 'Yolo Idol' Event For Some Reason

from the idol-hands dept

American Idol, the famous singing competition franchise that has been around for roughly ever, has mostly stayed out of our headlines for years, save for some hiccups centering around how technology has messed up their voting processes. That is set to change, as FremantleMedia, the company that owns the trademark rights for the franchise, has decided to lawyer up against the trademark threat presented by a local county festival holding a singing competition.

Here’s hoping that the residents of Yolo County can help the event come up with a new name for the popular talent contest after a “Cease and Desist” order was received from the attorneys for American Idol.

On Sept. 17, according to Marty DeAnda, Yolo County Fair Entertainment Director, was reached by Michael J. Salvatore of the law firm Holmes Weinberg PC and FremantleMedia, which owns the trademark rights to American Idol and “those marks in connection with entertainment services and related products and services.”

The article goes on to note that the folks behind the festival contacted the lawyers and explained they hadn't intended on this infringement, with an agreement to change the name of the Yolo Idol competition. It all ends up sounding perfectly amicable... except that this is pure bullying on the part of Fremantle. And entirely unnecessary bullying at that. As with many of the trademark issues we discuss here, it bears pointing out that the county's use of the word "idol" doesn't magically confuse the public into thinking that American Idol was branching off into county festivals. On top of that, there is both the lack of real commerce in question here, not to mention the lack of harm as evidenced by the length of time in which Yolo County put on its competition under that name without Fremantle even catching wind of it.

The “Yolo Idol” name only recently came to FremantleMedia’s attention, even though the Yolo Idol contest has been around for more than 14 years, drawing hundreds of participants and audience members every summer.

DeAnda and outgoing Yolo County Fair Director Rita Moore understand the necessity of complying with the order (and have done so) and that American Idol is a registered trademark. However, they want the Yolo talent competition to continue, albeit with a new name.

“I called their lawyer directly” said DeAnda. “I professionally and politely explained to him that the Yolo County Fair derived zero revenue from the event and in fact The Yolo County Fair invests a great deal of money to produce the event.”

Customer confusion, actual use in commerce, and why after all these years this is suddenly infringement are all open questions that will remain unresolved as Yolo County is capitulating. And, while it's understandable that the county doesn't want to go through the time and expense to push back against Fremantle for all of this, that reality obviously still sucks. It would be much better if bullies like Fremantle would receive the pushback they deserve.

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Posted on Techdirt - 11 October 2018 @ 7:36pm

Netflix Reminds Everyone That The Internet Isn't A Broadcast Medium With New Choose Your Own Adventure Shows

from the flip-to-page-45 dept

For over a decade, we have been making the point that the internet is a communications platform, not a broadcast medium. This seemingly obvious statement of fact has long been the subject of legacy content provider objections, which is part of what has led to much of the ongoing conflicts centering around intellectual property and digital business models. With big content players feeling control over their content slipping away in the internet, they have attempted to wrestle back that control by pretending the internet is something it isn't. For that reason, it's always a useful thing to point out to examples that remind people that the internet simply isn't a movie theater or television.

The latest example of that is provided by, of course, Netflix. Netflix is reportedly working on some new shows that are something of a "choose your adventure" type experience, which is something that traditional television simply isn't capable of.

Two of the interactive projects currently in negotiations are based on existing video game properties, the report suggests. That seems to include the previously announced Minecraft: Story Mode, which was largely completed with the help of Telltale before that company's massive layoffs last month. Netflix has frequently said it is not interested in getting directly into the video game business, however.

It's currently unclear just how much narrative branching will be possible in these Netflix specials, or how divergent the storylines can become based on viewer interaction. Filming extra content for such branching storylines can add significantly to the production cost of traditional linear TV narratives to create content that some viewers may never end up seeing.

"Interactive" is the key word here, one which precisely shows the separation between broadcast and communications mediums. It's a small thing, it might seem, and doesn't really touch on the typical intellectual property concerns we discuss at Techdirt, but it also beautifully highlights how the internet and broadcast mediums are simply different. And, if you accept that difference, the obvious conclusion is that they should not be treated and/or regulated as though they were the same. That important distinction has an impact across the world of how the internet functions and is treated by government and the law.

In fact, this type of interactive narrative storytelling has more in common with the video game market, or even the tabletop gaming market, than television and film.

Live TV programs and game shows have long integrated interactive elements via telephone calls, webpages, and custom apps. But fully interactive narrative stories have been more closely associated with video games, from text-based stories like Zork to Hollywood-style blockbusters like Detroit: Become Human and everything in between. This narrative flexibility has also been included in video game experiments focused on filmed live-action stories, ranging from the campy Night Trap to this year's innovative WarGames reboot.

So tuck this one away for the next time you hear someone harping on about how entertainment over the internet should be treated no differently than entertainment offered via broadcast. They're not the same. And, ultimately, that's a good thing, as that dissimilarity is what allows for cool new experiments such as what Netflix is trying to create here.

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Posted on Techdirt - 11 October 2018 @ 11:59am

Epic Games Likely DMCA'd Its Own Fortnite Trailer, Showing The Problems With YouTube's DMCA Process Yet Again

from the epic-fail dept

We've had plenty of stories revolving around content owners and publishers issuing DMCAs over trailers and advertisements. These stories are always head-scratching in one way or another, typically centering around the question of why anyone would ever want to take down free advertising, even imperfect free advertising. We've also seen plenty of examples of content owners accidentally sending DMCA notices over their own content, all of which help to highlight both the flaws in the DMCA process and just how difficult it is for even content owners themselves to know just what is infringing and what isn't.

But when these two worlds collide, it becomes something special. We're not yet 100% certain, but it sure looks like Epic Games DMCA'd its own trailer for the upcoming Fortnite Season 6.

A Fortnite season 6 trailer was briefly taken down earlier this week, after receiving a strike from YouTube for copyright infringement. That alone would be strange enough, since trailers and promotional videos typically secure the rights to any third-party media ahead of time. But the real kicker here is who issued the claim: according to a screengrab posted to Reddit, it was none other than Fortnite's own developer, Epic Games.

The internet then spent the next day or so poking fun at Epic in the form of memes and in-game references, but this really isn't much of a laughing matter. And, whatever actually happened here, it serves to show the flaws in the DMCA process relating to YouTube videos. The most likely explanation is that Epic has an automated system to flag and DMCA videos that contain game content from Fortnite. The problem here is that this was a trailer for an upcoming release, meaning that it would be odd for the algorithm to already be set to pick up on that content. Perhaps it's simply recognizing the general game or characters and flagging it, but we don't know for sure. And, given the vast amounts of let's plays and other content on YouTube featuring Fortnite, it's hard to square just why this trailer would have been flagged when other videos are not. Regardless, the end result of this would be Epic Games DMCAing its own advertisement, the very last thing it would want to do. If that doesn't show the flaw in how the DMCA process is handled on all sides right now, it's hard to imagine what would.

Of course, the other possible explanation here is that it wasn't Epic that DMCA'd the trailer at all, but rather someone impersonating the company.

This system has been criticized for having little oversight and placing undue burden on those impacted by the strikes. Someone looking to cause trouble could, for example, pretend to be a company and issue a fraudulent claim. Or, as has happened in the past, a creator of a game or film could use YouTube's system to punish negative reviews.

Yes, and with little oversight and next to nothing in terms of punishment for sending false DMCA notices in this way, there is little that would stop this from happening. While the first possible explanation registers as a flaw we can all laugh at, the latter shows the true danger in the DMCA process as a method for censoring speech. And that's something nobody appears to be paying attention to, even as the flaw is exposed for all to see.

The DMCA isn't perfect. What it really lacks is legislated teeth to punish abuse and fraud. Until that happens, abuse will run rampant, as will automated systems that DMCA perfectly legitimate content, such as a company's own advertising.

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Posted on Techdirt - 10 October 2018 @ 7:44pm

Titleist Goes After Another Parody Golf Gear Company After Settling With The First

from the par-for-the-course dept

A little over a year ago, we discussed how Acushnet, the company that owns brands like Titleist and FootJoy in the golf gear industries, had sued I Made Bogey, a company that created parody golf gear. Crude parodies, at that, with the headlining product being a hat styled after Titleist's famous golf hat that read "Titties" instead of "Titleist." While Acushnet had brought claims of trademark infringement and dilution, we noted at the time both that these claims were fairly specious -- the parody only works in all of this if you are clear on the difference between golf's waspy culture and I Made Bogey's sophmoric take on it -- and that the case would almost certainly be settled out of court. It's not like I Made Bogey had the same gobs of money to throw at the case as Acushnet, after all.

Well, it seems like this might be turning into a game of litigious whac-a-mole, as Acushnet has now sued another company pulling the exact same parody and joke, and a whole bunch more.

On Friday, Acushnet set its sights on an Australian company called Golf Gods that is apparently making the same joke. The company’s website boasts a diverse inventory of accessories and apparel — including polo shirts patterned with flamingos or decorated with a cartoon figure breaking his club over his knee — but Acushnet wants punitive damages and an injunction over the line similar to its Titleist products.

The complaint details all of the supposed cases of infringement in question, but one of them is the exact same "Titties" hat that I Made Bogey had been selling. Alongside that one, Acushnet claims that various other parody lines of clothing and apparel also represent trademark infringement and dilution.

In addition to its cursive logo, Acushnet says Golf Gods has been infringing its protected marks “#1 Ball in Golf,” “Pro V1” and “Footjoy.”

The latter company’s products use the marks “#1 Sluttiest Ball in Golf,” “Hoe V1” and “Footjob.”

So let's just make a couple of things clear. First, these jokes mostly suck. This kind of lazy parody built on offense is mostly stupid, save for its unique value in poking fun at golf culture. Even there, they barely do the job. Second, tastefulness is not in question when it comes to trademark concerns. For infringement, there needs to be a risk of customer confusion between the companies putting forth these products. That, as was the case with I Made Bogey, is of no concern here. The only value in Golf Gods products rests solely on everyone being in on the joke, no matter how the products themselves are stylized.

As for dilution, Acushnet would have to show that these parody products somehow harm the Titleist reputation or steal some of its fame. Again, such claims are laughable. These jokes again only work because Titleist is so famous, well known, and respected. That's the entire point.

As was the case the last go around, a settlement is somewhat likely. The one wrinkle is that Golf Gods is an Australian company. Given that the parody company isn't talking about the suit at all, however, indicates that it's taking this seriously. So, again, probably a settlement coming for what is clear parody that ought to be protected.

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Posted on Techdirt - 9 October 2018 @ 7:42pm

NHL Team Institutes 'No Video Game' Policy For Players Due To Fortnite 'Addiction'

from the i-need-my-fix dept

Video game addiction as a concept has been tossed around for the past decade or so, with mixed feelings coming from all sides. Disagreement abounds as to whether or not gaming addiction is a real thing, both among medical professionals as well as the public. There's even disagreement among Techdirt writers (disclosure: I don't think it's a thing).

But as the concept continues to infect the common public lexicon, it's something we're going to hear more and more about. It's something of a checkpoint, therefore, that the issue has risen to the level of an NHL team instituting a ban on gaming for players while on the road visiting other cities.

The Canucks “veterans,” such as they are, have led the players to self-institute a ban on all video games on the road. “No more Fortnite,” Bo Horvat told TSN 1040.

“In my opinion, there’s better ways to spend time on the road, whether it’s hanging with the guys in the room or going to a movie with the guys. There’s a lot of cool cities we visit and to be cooped up in your room all night, playing Fortnite, is a waste of your time.”

The tie-in for gaming addition here is that last year the Canucks claimed that a young un-named player was inactive and seeking counseling for video game addiction. Whether this player-led ban on gaming is a direct result of that incident, or simply a scapegoat for the Canucks being fairly bad at professional hockey as of late, is unknown. What is known is that this ban pretty squarely centers around Fortnite, which is amazing advertising for just how fun and enjoyable that game is.

More interesting to me is how the team appears to be taking the blunt-tool approach that mirrors what many parents do in fear of video game addiction. These kinds of blanket bans, taking into consideration nothing about how individual players, or children, can handle gaming appropriately, is almost certainly a mistake. Even if video game addiction is indeed a thing, it must be true that it's a thing that will afflict a minority of the population. That makes these blanket bans massive overkill.

But don't be surprised to hear this story raised in NHL broadcasts if the Canucks manage to be less than awful this year.

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Posted on Techdirt - 5 October 2018 @ 12:14pm

Heisman Trophy People Sue HeismanWatch For Using Images Of The Trophy And Stating Its Name

from the hail-mary dept

Way back in 2007, we shook our heads sadly as Motion Picture Academy decided that takedowns over past Oscar clips and a lawsuit against a website, OscarWatch.com, would somehow drive more attention to the current year's Oscar broadcasts because of... reasons? In that case, the MPA was mostly making trademark claims, laughably stating that allowing a site like OscarWatch would confuse the public into thinking that the site was in some way affiliated with the MPA. In actuality, the site was a fan-site that put out analysis of The Oscars and had a nice big disclaimer that it wasn't associated with the MPA right at the top of its site.

Ten years later, the organization that manages the Heisman Trophy, college football's most prestigious award, has decided to one-up the MPA by filing a similar suit against HeismanWatch.com, but also tacking on a copyright claim stating that online depictions of the trophy is violating the copyright on the original artwork that is the trophy itself.

The trophy itself is an original sculptural work entitled to copyright protection, asserts the plaintiff, which has licensing relationships with ESPN and the Collegiate Licensing Company, a division of IMG.

"As owners of the HEISMAN Copyright, the Trust has the exclusive right to (1) reproduce images of the Heisman Trophy® award, (2) publicly display the Heisman Trophy® award; and 3) distribute copies of the Heisman Trophy® award pursuant to Section 106 of the Copyright Act, 17 U.S.C. § 106," states the complaint. "Upon information and belief, Defendants have for years willfully copied, displayed and distributed copies of the Heisman Trophy® award on a consistent and systematic basis, without the Trust’s authorization or consent... Defendants past and continuing copying, transmitting, displaying and distribution of images of the Heisman Trophy® award constitutes a willful, deliberate and ongoing infringement of the Trust’s copyrights, causing irreparable harm and damage to the Trust."

Let's tackle these in order. Like OscarWatch, HeismanWatch also has a big fat disclaimer on its homepage that loudly informs visitors it isn't affiliated with the Heisman Trophy Trust. Between that and the context of the rest of the site (more on that in a minute), it is evident to anyone with a working frontal lobe that there is no association between these two entities. For that reason alone this trademark claim should fail. Furthermore, on the trademark claim, this is clearly nominative fair use. The site is discussing the Heisman Trophy, and thus is using the term to accurately describe the site's purpose.

On to the copyright claim. What is HeismanWatch? Well, the site is part a podcast repository for the contributors to the site, and part a repository for analytics and predictions for the Heisman race. If that doesn't fall squarely in the sports journalism category, then nothing does. As such, just as every newspaper in the country is free to reproduce images of the Heisman trophy in its reporting on college football, so too is HeismanWatch. Whatever licensing deals the trust might have in place, the use of images of the trophy by HeismanWatch simply doesn't violate the copyright of a sculpted work of art. Period.

The only useful function of this lawsuit at all, in fact, is as a litmus test for whichever court will hear it.

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Posted on Techdirt - 4 October 2018 @ 7:27pm

GOG Celebrates 10 Years Of Competing With Piracy And Being DRM Free By Saying So

from the doing-it-right dept

In gamer circles, Good Old Games, or GOG, is everybody's favorite go-to retort whenever someone brings up the necessity for DRM. While the platform has always been something of a kid brother to Valve's Steam, GOG has made a name for itself by refusing to allow DRM on any titles it sells and, more importantly, being hyper-engaged with its customers and community and fostering that relationship by being genuinely open and human. What many people might not know, however, is that GOG first started in Europe, trying to figure out how to compete with piracy and the grey market long before it waged its war on DRM.

Well, GOG is taking a moment to remind everyone of that fact while celebrating its 10 year anniversary.

The GOG.COM story began in Poland, 1994 – a time and place where bootlegging reigned supreme and legal games were a luxury that few could afford. These were the early days of CD PROJEKT – back then specializing in local retail distribution, but the job wasn't easy. After all, how do you compete with the grey market?

Our answer was to offer value that gamers were already used to and then some: beloved games in big beautiful boxes packed with goodies, professional localization, and prices that are simply reasonable. And it worked!

It did indeed. In fact, the story of GOG's anniversary is the story of one platform successfully competing with free, with a much bigger competitor, and having to drag wary publishers that might be scared off of the anti-DRM stance along for the ride... for ten years. For a decade now, GOG has built a business that started and is still largely centered around retro-games that are easily pirated in the video game industry of all places, where customers are far more likely to know the methods for piracy than in other industries. And, yet, here they are, retelling how it filled the market for retro-games by assuming many people actually still wanted developers to be rewarded for great game-making.

Good Old Games launches in open beta as a legal way to support classics at affordable prices. No longer abandoned, all games would come with tech support and sorcery to get them running on modern PCs. Every game stuffed with goodies and bonus content that tickles our inner collectors. Everything would be DRM-free – it's only fair after all, and it captures that feeling of ownership on your digital shelf.

And it was both that catering to the public demand for valid and working versions of these games, and of course the stripping out of frustrating DRM, that built up GOG's loyal following. It was merely a few years later when GOG was the platform for several major title day 1 releases, all of which had to follow the anti-DRM "ideology", as GOG puts it. That there is an honest to God DRM-free option is the full response to any publisher that insists DRM is must-have.

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Posted on Techdirt - 3 October 2018 @ 11:58am

Music Group Cheers On Its Own Fake Antipiracy Victories

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

There's an old saying in statistics: figures don't lie, but liars figure. Nowhere is this more the case than when you hear numbers streaming from the mouths of those in the anti-piracy business and copyright industries. Examples of this are legion, from the infamous practice of Hollywood accounting rendering hilariously successful films to red-ink status, to bogus piracy costs, to industry claims that rely on every download being a lost sale, to the overall prevalence of piracy statistics more generally speaking. While MUSO, the antipiracy outfit out of Europe, has made some recent noise about copyright holders tweaking their business models to reduce piracy instead of whining about, it has also participated in this liars-figuring practice.

A great example of that can be found in MUSO's recent partnership with the Association of Independent Music (AIM), where the latter has put out a press release about just how much great work MUSO has performed in taking down pirated content in the past four months.

This week AIM sent out a press release showing how much has been achieved over the past four months. The results, shared by AIM’s Head of Legal & Business Affairs Gee Davy are impressive indeed.

“AIM’s partnership with MUSO began in May this year, and to see 5 million takedowns achieved already reflects the speed and efficiency with which MUSO has covered the catalogs across the independent music community,” Davy notes. “Our members report that they are delighted with the service, which not only protects their releases from online piracy, but creates a visual dashboard to track piracy and protection activity in real time.”

Those are big, impressive sounding numbers that are designed to relay to AIM membership just how much of an effect the partnership with MUSO is having. And, were you simply reading this as an AIM member, you can imagine being quite pleased. To have 5 million takedowns of pirated content occur over four months is going to have an effect, even if it's still largely a game of whac-a-mole.

Unfortunately, actually looking at the results these numbers are based on results in the realization that this is all bullshit spin and not at all representing the actual result AIM is touting in its release.

The press release doesn’t mention it, but, from what we can see, the five million takedown requests were (nearly) all targeted at Google. This means that no infringing content was taken down there, only search results. Looking more closely at all the takedown requests MUSO sent to Google, on behalf of AIM, an even more disturbing picture emerges.

Google’s Transparency Report confirms that AIM sent close to five million ‘pirate’ URLs to the search engine. However, as it turns out, the vast majority of all reported URLs were not removed. And for a good reason. Most of the links that were reported are simply not in Google’s search index. So, logically, there is nothing to remove.

In other words, that 5 million number isn't successful takedowns of infringing content, nor is it even successful takedowns of Google search results. Instead, it appears that some sizable percentage of that 5 million number is simply the number of takedown requests sent out to Google to delist search results. And, were that not enough, it seems that this is all part of some automated takedown notice system that isn't even necessarily tied to actual infringing content that exists for Google to index. TorrentFreak went through the results and searched against torrent sites to search for the actual infringing content that would correspond with the search index removed. In many, many cases, no such infringing content exists.

As mentioned before, these links were never indexed by Google. However, even the torrent site in question doesn’t return any infringing content, as the searches in question return no results.  The above suggests that most of these takedown efforts are rather pointless. The URLs are not in Google’s index and even if they were, many would not point to infringing content.

To us, it appears that many of these notices are automatically generated by using variations of search strings on pirate sites, whether these point to actual pirated content or not.

So if figures don't lie but liars figure, AIM is very squarely in the liars category. Waving a "mission accomplished" banner for results that can be characterized as "rather pointless" is the sort of thing that ought to really piss off AIM members. And, frankly, cause them call into question just how important any of this anti-piracy activity is to begin with. MUSO, for its part, sure ought to be pushing back against this Press Release if wants to retain any of its own credibility.

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Posted on Techdirt - 2 October 2018 @ 7:07pm

Fashion Designer Balenciaga Opposes Parody Pet-Wear Maker's Trademark Application For 'Pawlenciaga'

from the woof dept

Everyone who knows me knows I love two things more than anything in this world: animals... and puns. And, to my delight, much of the pet industry considers using puns as something of a religion. You've all seen this, with groan-worthy names of pet stores, doggie daycares, and treat makers. And because the world simply can't be a fun place in which to exist, sometimes these punny names cause intellectual property disputes, such as when the Prosecco people managed to oppose a trademark for a pet treat named "Pawsecco", or when a real-life human being hotel called the Chateau Marmont sent a cease and desist notice to the Cateau Marmont, a hotel for, I don't know... raccoons?

And now one fashion designer has decided to oppose the trademark for a maker of parody pet clothing, arguing ostensibly that the public both cannot tell the difference between human clothes and pet clothes, as well as that this same public doesn't have a sense of humor.

While Demna Gvasalia has been preparing for Balenciaga’s Spring/Summer 2019 runway show, the brand’s legal team has been readying for a fight. Counsel for the Paris-based brand moved to oppose a pending U.S. trademark application for registration this week, taking issue with “Pawlenciaga,” a trademark that is being used by Pawmain Pets, a North Carolina-based company in the business of making what it calls “parody streetwear for your pets.”

According to the opposition that Balenciaga filed on Monday, Pawmain Pets’ “Pawlenciaga” trademark – if registered for use on leather goods, as Pawmain has proposed – “will cause confusion, mistake and deception with respect to those goods, by virtue of [Balenciaga’s] prior registration, use and fame of its Balenciaga trademarks, including [on leather goods].” Moreover, Balenciaga alleges that Pawmain’s proposed registration “would substantially harm [Balenciaga]” and “is likely to cause confusion” with Balenciaga’s trademark rights, which date back to at least 1975.

It's quite a bold argument for a high-end fashion designer to insist that a puntastic name is all that's needed to confuse the public between its goods and those made for animals. One would think that the quality of the product might do some work to stave off such confusion, but apparently not. Still, the average buyer of pet-goods, particularly such luxury items as pet clothing, will be well-acquainted with the long and glorious tradition of puns and parody in the pet industries. It seems laughably unlikely that anyone is actually going to be confused as to the product source or association.

Now, while the USPTO has apparently never upheld a parody defense to a trademark opposition, though that defense has obviously been used a zillion times once lawsuits have been filed, it seems there is already some caselaw on the books that the USPTO might turn to as particularly relevant.

The legally-minded amongst us will already be thinking of a similar matter that precedes Balenciaga’s opposition: Louis Vuitton v. Haute Diggity Dog. In that case, Louis Vuitton sued the pets-wear company, alleging that ones of its handbag-shaped dog toys, one that was labeled “Chewy Vuiton” and that was similar in shape, monogram (“CV” vs. “LV”), repetitious design and coloring to a Louis Vuitton Speedy bag, ran afoul of trademark and copyright law. The Fourth Circuit Court of Appeals handed Haute Diggity Dog a win in 2007, holding that despite Louis Vuitton’s claims of trademark infringement and dilution and copyright infringement, Haute Diggity Dog could continue to make and sell plush dog toys that make use of famous luxury trademarks, as “Haute Diggity Dog’s parody is successful.”  

That kind of makes this pretty straightforward, as it's the exact same subject matter and industries participating in this opposition. Whether the USPTO will bother to look to that case to inform its decision is an open question. What isn't an open question is that there was obviously no reason for Balenciaga to do this. There were plenty of other routes to take, including simply ignoring this whole thing while noting that there was little concern for customer confusion. Why it chose to go the bullying route is a question that needs to be put to the designer.

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Posted on Techdirt - 1 October 2018 @ 7:38pm

Sony Caves: The PS4 Will Soon Begin Supporting Cross-Console Play

from the advertising-works dept

Back in June, we talked about a fun little bit of trolling that Xbox and Nintendo teamed up for at the expense of Sony and its PlayStation 4. At issue was Sony's longstanding stance against inter-console play for multiplayer games that would otherwise allow for it, whereas Xbox and Nintendo players all over the world were happily playing MineCraft and Fortnite against one another. The end result of Sony's stance has been both a decent level of frustration by gamers that expect modernity in their console's features, and several YouTube videos and Twitter exchanges between Xbox and Nintendo highlighting that their own consoles had inter-console functionality. In that post, we said it was an open suggestion whether or not this public ribbing would change Sony's stance on the subject.

Narrator: it changed Sony's stance on the subject.

After what it calls "a thorough analysis of the business mechanics required," Sony announced on Wednesday the first crack in the PlayStation Network's walled garden approach to cross-console functionality. Starting today, Fortnite on the PS4 will allow for "cross-platform gameplay, progression, and commerce" with versions on the Nintendo Switch and Xbox One (in addition to the Android, iOS, Windows, and Mac platforms where such support was already integrated).

By all accounts, the thorough analysis mostly consisted of high level executives sitting around a table, asking one another if the Playstation should finally support inter-console play, and then sort of staring blankly at one another for days on end until one of them quietly muttered, "Yes?" And this isn't the account of pissed off gamers without an understanding of how this works on the backend. Rather, publishers and developers have basically been screaming at Sony about this for several years now.

Sony has kept the PlayStation Network stubbornly closed off from other consoles' online platforms, despite complaints from multiple game developers that Sony's policy was the only thing stopping them from adding such support to their games.

Things started coming to a head earlier this year, when Fortnite players found that merely linking their game accounts to the PS4 version of the game locked them out from using that same account on the Nintendo Switch version. More recently, Bethesda issued what it called a "non-negotiable" demand that any pending console version of its Elder Scrolls Legends card game must have full cross-console support.

So, while Sony can't credibly take credit for listening to fans, it can be said to have happened indirectly, with developers being the ones wanting to bring these features to their customers, and then pushing and threatening Sony over it. Now, of course, Sony will want platitudes for giving its customers what they've wanted for two or so years, but it likely won't get them.

By stubbornly choosing protectionism in the form of a walled garden, Sony has made even its eventual good moves come without reward.

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Posted on Techdirt - 28 September 2018 @ 10:44am

CBS Bullies Fan Star Trek Project To Shut Down Despite Creators' Pleas For Instructions On Being Legit

from the engage-the-lawyers dept

Lawsuits and intellectual property disputes revolving around the Star Trek franchise are legion. This is largely due to just how massive and popular the franchise has been over the past decades and into the present. Still, we've seen all kinds of examples of how either the disputes are frivolous or silly, or cases in which IP owners had so many options open to them other than bullying and suing but chose to ignore those alternative routes.

That brings us to Stage 9, a non-commercial labor of love put together by fans of Star Trek: The Next Generation. Stage 9 is the virtual recreation of TNG's Enterprise starship that allows fans of the series to explore the beloved vessel and immerse themselves in the chief setting of the series. Stage 9 has been built over the past two years by creators that have taken great pains to state that the project was not affiliated or licensed with CBS or Paramount and that they weren't doing this to make money, only to artistically demonstrate their fandom.

As you've probably already guessed, all that was for nothing as CBS sent them a cease and desist letter anyway.

“This letter was a cease-and-desist order,” Scragnog explains. “Over the next 13 days we did everything we possibly could to open up a dialog with CBS. The member of the CBS legal team that issued the order went on holiday for a week immediately after sending the letter through, which slowed things down considerably.”

Part of the team's strategy at that point was to remind everyone it could at CBS of the words of John Van Citters, CBS VP for Product Development. Back in 2016, shortly before this project started, Van Citters publicly remarked that the Star Trek franchise owes its success to the fans and the community that creates so much fan-work around the Trek universe. He went so far as to plead with fans to get involved, specifically stating that fans creating fanworks are "not going to hear from us. They're not going to get a phone call, they're not going to get an email. They're not going to get anything that's going to ruin their day... like they've done something wrong."

Those seem to be in direct contradiction to the very real letter that very much ruined the day of the team behind Stage 9. And so the team reached out to Van Citters directly to see if he could get involved and help. Van Citters failed to even respond, and when CBS' lawyer finally got back from vacation, it was stated that nobody would be working with these fans to make their project legit, it all just had to go away.

“We were hoping, perhaps naively, that the elements of Stage 9 that CBS did not approve of would be highlighted to us, so we could be sure to remove these elements from the project and create something that met with, if not their approval, then at least their acceptance,” Scragnog explains.

To keep the project alive, the team were prepared to make any changes ordered by CBS. Sadly, CBS said that the project could not continue in any form, no matter what changes were made. They provided no further details and, as noted by Eurogamer, did not indicate how Stage 9 had violated the fan art guidelines previously published by CBS and Paramount.

And so the story of a two year fan-project that would have at worst brought some joy to a bunch of Star Trek fans and, at best, would serve as free marketing material for the show, has come to the most unfortunate of endings. Thanks to mealy mouthed executives who can't be bothered to either back up their own altruistic statements or engage with fans of their property, two years of work simply gets tossed in the trash.

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Posted on Techdirt - 27 September 2018 @ 7:46pm

Thanks To Streaming Fragmentation, Bittorrent Traffic Is Suddenly Rising In Traffic Share

from the equal-and-opposite-reaction dept

When it comes to the type of traffic the content industries are worried about regarding piracy, the present is no longer the past. You can see this in many ways, such as anti-piracy efforts largely focusing on illicit streaming sites, the trend in laws and takedown notices also targeting streaming sites, and the overall messaging coming out of the copyright industries about how evil streaming sites are with little distinction between the legal and illegal. All of this has been built in part on the realization that bittorrent traffic, the piracy metric of a decade ago, has been steadily dropping in its traffic market share for several years. Combined with a drastic rise in streaming traffic share, the takeaway was that pirates weren't downloading any longer and were instead streaming.

The other side of that conversation is how good, convenient streaming services like Netflix and Amazon Prime Video have taken away some of the impulse for copyright infringement as well. It turns out that if you give the public access to what they want at a reasonable price and make the content easy to get, there's no longer a need to pirate that content. Who knew?

Unfortunately, the past few years have seen a drastic fragmentation of the streaming market. Where there was once the need to essentially have one or two streaming services to get most of the content you want, exclusivity deals and homegrown content created by the streaming companies themselves has carved out more borders in the streaming services industry, often times requiring many streaming services to get the content people now want. And, because every action has an equal and opposite reaction, Canadian broadband management company Sandvine is reporting that bittorrent traffic is suddenly on the rise.

Globally, across both mobile and fixed access networks file-sharing accounts for 3% of downstream and 22% of upstream traffic. More than 97% of this upstream is BitTorrent, which makes it the dominant P2P force. In the EMEA region, which covers Europe, the Middle East, and Africa there’s a clear upward trend. BitTorrent traffic now accounts for 32% of all upstream traffic. This means that roughly a third of all uploads are torrent-related.

Keep in mind that overall bandwidth usage per household also increased during this period, which means that the volume of BitTorrent traffic grew even more aggressively.

That trend is being mirrored in other regions around the world as well. Once thought to be the declining method for filesharing, bittorrent is suddenly making a traffic comeback. And the reason is the fragmentation in the streaming marketplace. Again, there are both real dollar costs and mental transaction costs that come along with signing up for multiple streaming services. Asking a person to subscribe to 3-6 streaming services to get the kind of content package that is now the norm is no different than a bulky cable bill with multiple and complicated packages. In addition, this streaming service bloat also mirrors what cord-cutters have been running away from for years, which is the cost associated with access to all kinds of content the customer has no interest in. In other words, the streaming industry risks making the exact same mistake the cable industry made with the exact same result in pushing people to pirate content.

And it's not just me saying so. Sandvine's report reaches the same conclusion.

“More sources than ever are producing ‘exclusive’ content available on a single streaming or broadcast service – think Game of Thrones for HBO, House of Cards for Netflix, The Handmaid’s Tale for Hulu, or Jack Ryan for Amazon. To get access to all of these services, it gets very expensive for a consumer, so they subscribe to one or two and pirate the rest.

“Since these numbers were taken in June for this edition, there were no Game of Thrones episodes coming out, so consider these numbers depressed from peak!” Cullen notes.

None of this is to say that streaming and content companies can't produce exclusive content, or that every content creator should make their content available on every streaming platform. However, when the bittorrent traffic picks up, the industry also can't simply fall back on the "everybody just wants everything for free!" tired mantra that's been trotted out so often in the past. It's a direct result of the fragmentation, which is a business model issue.

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

Famous Protest Art Group In Bulgaria Paint Their Feelings About New EU Copyright Law On Gutenberg Statue

from the art-to-save-art dept

The brave new path to a gatekeeper-manned, non-open internet the EU recently cut with its plainly atrocious new copyright directive was, were you to believe the general media coverage, cheered on by EU artists as a blow to Google and a boon to art because... well, nobody can actually explain that last part. And that's likely because the proposed new legislation, Article 11 and Article 13, essentially forces internet platforms to play total copyright cops or be liable for infringement while gutting the fair use type allowances that had previously been in place. Much of the European legislation that existed on the national level, and which served as the basis for this continental legislation, has done absolutely zero to provide artists or journalists any additional income. Instead, it's re-entrenched legacy gatekeepers and essentially created a legal prohibition on innovation. As the directive goes through its final stages for adoption by EU member states, the general coverage has repeated the line that artists and creators are cheering this on.

But, despite the media coverage, it isn't true that all of the artistic world is blind to exactly what was just done to the internet and the wider culture. Destructive Creation -- a collection of artists most famous for taking a monument in Europe to Soviet soldiers and painting them all as western superheroes and cultural icons -- has made its latest work an addition to a statue of Johannes Gutenberg.

“Let there be light”, reads the cover of the Bible held by the bronze hands of Johannes Gutenberg, inventor of the modern printing press, on the famous statue in Place Gutenberg in Strasbourg, France. Last weekend, however, the monument received a curious addition. A dazzling red sign reads CENSORED above a caption that reads “Art. 13”.

A member of Bulgarian art collective, Destructive Creation, which was behind the artistic action, defended the stunt.

“Under the proposed regulations, if Gutenberg was doing now what he was doing in the 15th century, he would be sued for using content that does not belong to him – the Bible, which he reprinted – and would have been censored,” the artist told BIRN.

And here is their work upon the statue.

As far as making points goes, slapping the law you believe will censor art on the bible being held by the man that brought mass printing to Europe certainly is on the nose. But the actual important factor in this is that this wasn't Silicon Valley tech shareholders that defaced the statue in the name of saving art and culture, but a group of artists. These are the exact people who, were you to listen to proponents of the new copyright law, would be on their knees thanking their gracious overlords. Instead, Destructive Creation knows exactly where this is all going to lead and it most certainly isn't going to be to an EU where artists have more opportunities to make, share, and sell their art. Instead, the law will chill permissive sharing by artists, not to mention individuals and companies that want to build new and innovative platforms to help art reach the public, all under the threat of massive liability that practically mandates platforms disallow user-generated content.

You know, what the internet has essentially always been until this EU bill has decided to kill it.

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Posted on Techdirt - 25 September 2018 @ 7:30pm

Monster Energy Loses Again, This Time To The NBA

from the losing-streak dept

Longtime readers here at Techdirt will be familiar with Monster Energy's trademark bullying ways, but even relative newcomers will have had the opportunity to witness what has become an impressive losing streak in trademark disputes. This comes with the bullying territory, where the quick trigger finger on the threat letters and oppositions means that many of them are going to be losers. Still, one would think the sheer volume of these cases would mean quite a bit of billable hours going to the legal team that certainly could be spent better elsewhere.

But the losses keep coming. Monster Energy recently lost an opposition filed by the NBA for the Toronto Raptors team imagery in Singapore, of all places.

Monster Energy argued that the Toronto Raptors logo is too similar to its “claw device mark”, and consumers would likely confuse Monster’s three vertical slashes with the NBA Toronto Raptors’ circular logo of a basketball with three horizontal raptor claw marks out of it.

Here are the images Monster Energy said would cause confusion in the public.

Confused yet? No, of course you're not. Now, Monster Energy and the Toronto Raptors both have a lengthy roster of variations of these images and branding, but absolutely none of them come remotely close to resembling one another and, even any of them did, there is still no chance for actual confusion in the public about any of this. Fortunately, the adjudicator of the opposition agreed.

The adjudicator presiding over the case said: “[The] mere similarity in the subject matter of the competing marks (for example the three-pronged claw-shaped devices with jagged edges) was not sufficient to establish visual similarity for the purposes of opposing the registration of a trademark.” The adjudicator went on to add that consumer knowledge of both brands would mean that confusion would not occur.

I get that bullies are gonna bully, but I still fail to see how any of this has been productive for Monster Energy as of late.

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