Dark Helmet’s Techdirt Profile


About Dark HelmetTechdirt Insider

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




Posted on Techdirt - 17 February 2017 @ 1:45pm

Chinese Trademarks And The Emoluments Clause: Do They Intersect In The Trump Presidency?

from the cigar-boxes-and-trump-condoms dept

As the world continues to get used to an America with a President Donald Trump at its head, the binary nature of the current political climate has reared its own head in unfortunate ways. One example of this is the stunning speed with which many of those previously ignorant of the emoluments clause of the Constitution, as the Title of Nobility Clause is commonly called, have feigned familiarity with it. As one of my colleagues here termed it, the "emoluments hunting" going on is transparently political in nature, rather than representing a serious effort at protecting the public interest from the shadow of undue influence and sanctioned bribery over our highest political office.

Both sides of the American aisle are badly misusing this important constitutional text. Those whose skin might crawl at the mere words "President Trump" seem to find emoluments violations everywhere, even in the most trivial of cases. Trump himself, of course, hasn't helped in the matter, even when he easily could, as he has shirked the norms of disentangling the presidency from the previous life of he who holds that office. Trump, you will recall, has distanced himself from the decision-making aspects of the family business, but not the profits of it. It's an important distinction, which we'll get into in a moment.

But first, for the sake of context, let's start with the text of the emolument clause, as well as the framers' reasons for its inclusion in the highest law of our land. The text itself is blessedly short and seemingly simple.

No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.

The purpose for the clause was stated explicitly by Alexander Hamilton in the Federalist Papers.

"One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption."

That's pretty straight forward. To prevent the corruption of those in office, those who hold office are restrained from accepting titles, gifts and remuneration from foreign states or foreign leaders. Now, Trump and his allies have claimed repeatedly that the clause does not apply to the President. To do this requires a tortured reading of the clause itself, the blatant ignoring of its intention, as well as a peculiar emphasizing of certain historical events. For example, an oft-cited "proof" of the claim is that Hamilton himself responded to a request by Congress for a list of all persons holding office in the United States, as well as their salaries, with a list consisting only of those officers appointed, while omitting anyone who held elected office. When you have to reach that far back to such a simultaneously tangential and trivial historical instance to argue that a President should be allowed gifts from foreign governments, you don't have much of an argument at all.

And that debate has taken on a certain amount of primacy at present, because for all of the "emoluments hunting" currently going on, there are some very real instances where the raising of the clause is perfectly valid. One of those intersects nicely with a subject we discuss here regularly: trademarks. Chinese trademarks, specifically, now that President Trump, the businessman, has managed to win trademark rights in China after a long slog of a fight that only turned in his favor when he became Donald Trump, the President.

In the context of the entire point of the emoluments clause, it cannot be stressed enough just how long this fight has been going on.

In 2006, Trump applied for a trademark for “Trump” in connection with a company providing construction services in China. China’s Trademark Office rejected the application, on the grounds that someone else (Dong Wei) had filed a similar application about two weeks earlier, and had priority under China’s first-come-first-served trademark rule.*

* There are, apparently, more than 200 other “Trump” marks on the Chinese trademark register — for everything from Trump toilets to Trump pacemakers, Trump condoms and even a “Trump International Hotel” — that have been claimed by persons other than Trump (or any of the Trump Organizations). This, as all good trademark nerds will recognize, is a concrete illustration of a common problem in “first-to-file” jurisdictions, where it can be relatively easy to “reserve” a mark by filing an application, without evidence that you are actually using the mark in question.

Since that initial rejection in 2006, the Trump business has appealed the decision all the way up the Chinese legal ladder, and lost at every turn. The last loss his business suffered on the matter came in May of 2015, shortly before Trump declared his candidacy for President. The rulings, again, only went in one direction against Trump the businessman, and that was a losing direction.

Suddenly, in April of last year, Trump suddenly went back to the Trademark Review and Adjudication Board, which had ruled against his appeal of the original rejection of his trademark application, and asked it to simply review its previous decision. Strangely, the Review Board suddenly reversed course, invalidating Dong's trademark. Trump's trademark was not codified until November 13th, in the immediate aftermath of his winning the Presidency. Immediately after that, the Trump organization applied for nearly fifty other trademarks in China, all of which are pending.

In the context of this complete reversal, the timing of which coincides with Donald Trump becoming President of the United States, does this register as a violation of the emoluments clause? If we can finally resolve this question about whether the clause applies to the President in a way that preserves both the framers' intentions as well as the realm of common sense, it sure seems to be.

It’s not bribery, exactly, that we’re trying to prevent in this clause. We don’t need a special constitutional provision prohibiting office-holders from taking bribes, because taking bribes is already illegal under the common law, and it is also one of the “high crimes and misdemeanors” for which office-holders can be impeached. But it’s a close cousin to bribery; accepting an emolument introduces an improper element — personal gain — into the decision-maker’s calculus, less obviously and overtly than in cases of actual bribery, but no less serious for that.

And that is precisely the situation Trump is now in. He has 49 additional applications pending before the Chinese Trademark Office. He has been given a nice, valuable gift, and he could be forgiven for thinking that other similar gifts could follow (if he behaves himself well).

It's worth repeating that this question could have easily been avoided had Trump bowed to the norms of the presidency and gone further to divest or partition his office from his business than he has. The only reason we're having this conversation is because our current President made the decision to make such questions relevant. And since Trump currently has the status both of President and businessman, benefits to the one must be considered benefits to the other. The granting of trademarks ought to be included in this, particularly given the circumstances surrounding how and when those trademarks went from being wholly rejected to suddenly being granted.

And for those who would point out that Trump is merely getting his legal benefits under Chinese law, that shouldn't matter.

But why should that matter for purposes of the foreign emoluments clause? If France had had a law that gave all visiting Americans a snuff box (if they came at a certain time to the Hotel de Ville and submitted an application), would Jefferson have been able to keep his? Wouldn’t it have been just as troublesome in those circumstances as an outright gift would have been?

Questions like this were bound to arise after we elected our first billionaire businessman-President. Those questions were assured to exist when that President refused to divest from his business. And we shouldn't look negatively upon our President's previous business success or acumen. But the emoluments clause does exist and, if it is to have any relevant meaning at all, it seems likely that these Chinese trademarks violate it. If nothing else, perhaps cases such as these will finally bring legal clarity to whether the clause applies to the President, because that's a question that is practically begging to be answered at this point.

60 Comments | Leave a Comment..

Posted on Techdirt - 17 February 2017 @ 11:57am

Man Who Used Facebook Live To Stream Birth Of Child Loses Bid To Sue All The News For Copyright Infringement

from the abort! dept

The saga of Facebook Live marches on, I suppose. The social media giant's bid to get everyone to live-stream content that mostly appears to be wholly uninteresting has nevertheless produced some interesting legal stories as a result. The latest of these is the conclusion of a string of lawsuits filed by a man who used Facebook Live to stream the birth of his child over copyright infringement against many, many news organizations that thought his act was newsworthy.

It was in May of 2016 that Kali Kanongataa accidentally publcly streamed his wife birthing the couple's son. He had intended for the stream to only be viewable to friends and family, but had instead made the stream viewable by pretty much everyone. Even after realizing he'd done so, Kanongataa kept the stream public, leading over 100,000 people to view the video -- including some folks in several news organizations, who used snippets of the stream in news stories about the couple's decision to stream this most intimate of moments.

And then came the lawsuits.

In September, Kanongataa filed suit (PDF) against ABC and Yahoo for showing portions of his video on Good Morning America as well as the ABC news website and a Yahoo site that hosts ABC content. He also sued COED Media Group and iHeartMedia. In October, he sued magazine publisher Rodale over a clip and screenshot used on the website for its magazine Women's Health. Last month, he sued Cox Communications.

In November, ABC lawyers filed a motion (PDF) calling their client's use of the Kanongataa clip a "textbook example of fair use." ABC used 22 seconds of a 45 minute video in order to produce a news story that would "enable viewers to understand and form an opinion about the couple's actions."

ABC's motion, embedded below, goes on to patiently explain to the court and, presumably, to Kanongataa's crack legal representation, that the entire point of the Fair Use defense was to allow small amounts of works to be used for the purpose of commentary and in news stories. Were lawsuits like this one to be victorious, news in the era of the image would come to a screeching halt. And, since the stories generated by these news organizations centered on the newsworthy nature of a couple streaming this sort of thing in the first place, use of such clips and images was perfectly in line with Fair Use usage in their reports.

The presiding judge, Lewis Kaplan, appears to have understood this correctly, having tossed the lawsuit against ABC and the other defendants.

Judge Kaplan's order shuts down Kanongataa's lawsuit against ABC, NBC, Yahoo, and COED Media Group. A lawsuit against CBS and Microsoft was dropped in November, possibly due to a settlement. The case against Rodale is still pending and is also being overseen by Judge Kaplan. Kanongataa's lawsuit against Cox was filed in a different district and remains pending in the Eastern District of New York.

This really is about as textbook a case of Fair Use as there could possibly be, leading us to wonder what in the world the legal team Kanongataa had hired was thinking in filing this in the first place.

Read More | 26 Comments | Leave a Comment..

Posted on Techdirt - 16 February 2017 @ 6:07pm

Pro-Marijuana Student Organization Wins Court Case Over Using School Logos

from the gone-to-pot dept

We've seen stories in the past in which higher educational institutions attempt to slap down students' use of school iconography when it comes to advocating for marijuana legalization. Trademark law is the preferred bludgeoning tool in many of these cases, regardless of whether or not the uses in question actually pass the muster on the tests for Fair Use. Still, at least in most of these cases the schools are at least quick to act and staunch in their attempts to silence a completely valid political position by the student body.

That's not so in the recent dust up between a pro-marijuana student group and Iowa State University. In this particular case, the student group got approval from ISU to use school trademarks, only to have that approval rescinded once a bunch of politicians got involved. The organization created by students is called the National Organization for the Reform of Marijuana Laws, or NORML.

When NORML ISU first formed, in 2012, group members submitted a request for approval of a t-shirt saying "Freedom is NORML at ISU" with a small cannabis leaf above the slogan, and the Trademark Office initially approved it.

Soon thereafter, the Des Moines Register ran an article about marijuana legalization in which ISU student Josh Montgomery, then president of the school's NORML chapter, mentioned that ISU was supportive of his organization's efforts and had even approved the aforementioned t-shirt. On the day the Register article ran, the Iowa House Republicans Caucus sent a formal letter to ISU leadership asking whether they had actually approved the NORML t-shirt. By the end of the day, ISU President Steven Leath and his top staff were emailing one another to discuss whether the school could revoke approval of the NORML design. The next day, a representative from the Iowa Governor's Office of Drug Control Policy personally contacted ISU administrators to voice concern with their t-shirt approval policies.

And almost immediately after that, ISU suddenly began putting holds on the approval for NORML's applications for using similar designs for t-shirts. Then came the rejections of all subsequent applications that included an image of a cannabis leaf, as well as an edict demanding that all of the group's future designs be submitted to the school for approval. NORML ISU then filed a lawsuit against the school, arguing that this arbitrary flip-flopping on the group's use of school trademarks was a violation of the students' First Amendment rights, as the decisions were being made clearly based on protected political speech. The District Court agreed, after which the school appealed.

And now the appeals court has affirmed the lower court's ruling.

On Monday, the appeals court affirmed the district court's ruling, concluding that students' "attempts to obtain approval to use ISU's trademarks on NORML ISU's merchandise amounted to constitutionally protected speech." And state schools cannot discriminate against constitutionally protected speech on the basis of its viewpoint without proving that this restriction serves a compelling governmental interest and is narrowly tailored to serve that interest.

Specifically, the court decided that the school's decisions to refuse NORML's applications and designs were based on the political push-back it received from state politicians, making it a clear violation of free speech rights. Which is a pretty stunning thing for a public university to have done, if you think about it. State reps from one party from one state got a public university made up of students from all over the country to attempt to silence a perfectly valid political position by a student organization. Whatever such action is, it certainly isn't in the interest of, ahem, higher education.

Good on the court for getting this right.

Read More | 30 Comments | Leave a Comment..

Posted on Techdirt - 16 February 2017 @ 1:33pm

Judge In Twitter Lawsuit Over Surveillance Disclosure Dings DOJ For Cut-And-Paste Legal Argument

from the government-control-c dept

As you will hopefully recall, there is an ongoing case between Twitter and the government over exactly how specific or not the social media service can be regarding the number of government surveillance requests it receives. Most of the rest of the big internet companies reached a settlement with the DOJ, including rules how specific companies could be (not very) in revealing such requests. Those rules basically were an attempt by the government to get tech companies to play hide-the-ball on transparency issues, in which the more specific a service attempted to be about how many individuals would be impacted by government orders, the more additional orders had to be lumped into those specifics, rendering the information useless.

Twitter, to its credit, was alone in saying that the proposed settlement wasn't good enough, and continued its fight with the DOJ. Essentially, the fight is over whether Twitter can be specific when it discloses how many orders it has received, or whether it must only disclose "bands" or ranges of orders. Recent arguments made by both sides do a nice job of highlighting the absurdity of the government's argument.

Twitter has argued that just as it has been precise in other areas of its transparency report, so too should it be allowed to say how many national security orders it has received from American authorities.

"Even under the most generous First Amendment standard, there is nothing in there that it is a national security harm to say that we received 44 as opposed to 0 to 499," Lee Rubin, a lawyer representing Twitter, said during the Tuesday hearing.

In court filings, DOJ lawyers have said that allowing Twitter to provide this specific level of information would be detrimental to national security. This assertion is according to a declaration filed by Michael Steinbach, the executive assistant director of the national security branch of the FBI, where he argued that "the disclosure of the information at issue would provide our adversaries a clear picture of the Government’s surveillance activities pertaining to national security investigations."

The DOJ has been conditioned through the acceptance of the argument by far too many courts, as well as the court of public opinion, to simply shout "national security" at any challenge to disclosing anything at all. And that's what it's doing here, as well. So much so, in fact, that the judge presiding over the case pointed out that the legal filings the DOJ had offered didn't address any of the specifics Twitter was arguing.

During the Tuesday hearing, US District Judge Yvonne Gonzalez Rogers, an Obama-appointed judge, seemingly rebuked the government at one point and noted that its legal responses did not directly address Twitter’s arguments. "The analysis that has been provided to the court is generic to any company," she said, explaining that there was "nothing in here that is specific to Twitter.

"If I had five different cases, one by Twitter, one my Microsoft, one by Facebook and all the other groups that do this social media stuff that none of us judges do, [Steinbach] could have taken this exact same declaration and cut and paste the declaration, switched out the names of the company and I would have the same generic explanation for why it is that the government wants to do what it wants to do."

There's no ruling yet, although one is expected in the coming months. Still, it doesn't look good to have the judge dinging the DOJ for failing to address Twitter's argument that there is no national security risk in disclosing a specific number of NSLs it receives, as opposed to a range. Perhaps more importantly, it's refreshing to see a challenge to the longstanding tradition of the government being able to simply shout "national security!" at any attempt at transparency to make it go away.

4 Comments | Leave a Comment..

Posted on Techdirt - 14 February 2017 @ 5:19pm

Counterpoint: As Denuvo Lauds Its Weeks-Long Control, 20 Year Old Game Still Selling Due To Its Modding Community

from the you-mod-bro? dept

I've covered the saga of Denuvo DRM regularly as of late. The once-vaunted anti-piracy tool, thought to be the end of video game piracy altogether, has instead had its protection window reduced to somewhere between a week and some weeks. Despite the headwinds of reality, the folks behind Denuvo have bravely soldiered on, proclaiming the tool still useful for protecting the ever-important early-release window of new video games.

And that's where I think a counterpoint needs to be made. The idea that the most important time in the sales cycle for a new video game is its initial release is almost gospel within the industry. And it's not without its logic, I suppose. Many, many games experience the vast majority of their sales upon initial release. But what if that wasn't the case? And what if by simply embracing the gaming community and releasing control over the product, instead of trying to cling to it with tactics like DRM, the sales cycle for a game became so long that it changed the math?

What if more games were like Quake, in other words. And I mean the original Quake, released by id Software some twenty years ago. The game has continued to sell throughout these past two decades, but is going through something of a comeback recently. Why? Well, it's because the modding community that has developed around the game has kept it fresh and relevant.

Quake mapping is consistent, organized and unrelenting. Quake’s community has mostly rallied around a singular download hub for nearly every level, and there’s even a handy launcher that downloads, installs and runs them all for you. Quake map packs tend to be once-a-month events, and they’re of indisputable quality, unshackled by the hardware and engine limits of the 90s.

You can pick Quake up from GOG or Steam, but the GOG version works out slightly cheaper since it includes both official expansions—Scourge of Armagon and Dissolution Of Eternity—which are sold separately on the Steam release.

Keep in mind that it's been twenty years since the game's first release and the modding community has stepped in to make sure that it's still being sold today. Interest is running high as fans have reinvigorated the game through their own creativity, updated the graphics to drag it into modernity, and generated interest through sharing levels and graphic designs. All of this happening outside of the control of id Software, which instead gets to sit back and simply cash the checks all this interest is writing for them. Exactly how valuable was the early release window of Quake to id Software?

Still valuable, I am sure, but the math simply can't be the same as the likes of Denuvo claim, what with a cycle alive and well after two decades. Giving up control made that possible, whereas the use of control tools like DRM, especially DRM that relies on 3rd party check-in servers that won't be around forever, actively work against that possibility. It seems to me that any game developer looking to make money should be clear on which of these business philosophies it ought to embrace.

24 Comments | Leave a Comment..

Posted on Techdirt - 13 February 2017 @ 5:29pm

The NBA Announces Plan To Start Its Own eSports NBA League

from the this-just-got-real dept

eSports has been a thing for some time now. While competitive video gaming was once relegated to some minor tournaments incorporating a few games held in a couple of countries in Asia, eSports has evolved into a wider industry. You can track the progress of it all by its reaching certain checkpoints: viewership numbers that look like those of real-life sporting events, the introduction of college scholarships for eAthletes, and eSports coverage appearing on national broadcasts from the likes of ESPN. The trend line for this has only moved in one direction. And now that appears to be continuing with professional sports leagues getting in on the action.

The latest in this is the National Basketball Association's announcement that it will be partnering with Take-Two Interactive to start its own eSports basketball league.

Today, the National Basketball Association announced plans to partner with publisher Take-Two Interactive for an official NBA 2K esports league, which led NBA commissioner Adam Silver to deliver this fantastic quote to the Wall Street Journal: “Think of eBulls against the eKnicks.”

The way this will work should be exactly as I imagined it would when I began playing the single player versions of sports games half a decade ago. And I'm sure many others considered how this might happen as well. Individual gamers would control individual custom players within an official league. It's like playing the MyPlayer version of the NBA2K series, except that you're playing in a league consisting of nothing but MyPlayers and competing online for teams, which might have their own owners, pay structures, etc.

The league, Silver explained, will operate just like the NBA: It’ll have a regular season, a playoff bracket, and a finals matchup. Teams of five players, each with his (or her?) own custom NBA 2K characters, will compete in a five-month season that starts in 2018. There’ll even be a draft, Silver said, although he also noted to the Wall Street Journal that none of the 30 NBA teams have fully committed to this esports league yet. (He expects around half of them to participate in the first year.)

It's not hard to imagine how this could balloon from this starting point. Owners of eSports NBA franchises might in the future fill a 12-man roster with gamers in this manner. They might hire coaches, fill out budgets for general managers that will be responsible for drafting and signing eAthletes, etc. It would be an eSports league that would mirror the real life sports league in most ways. The concept sounds really fun, though it remains to be seen how many NBA teams want to get on board.

What is clear, though, is that eSports isn't some fad ready to flame out quickly.

7 Comments | Leave a Comment..

Posted on Techdirt - 13 February 2017 @ 3:00pm

First Look At UK Piracy Alert System: Mostly Benign, Except ISPs Are Requesting Filesharing Software Be Removed By Clients

from the why? dept

Earlier in the year, the public learned ISPs in the UK were partnering with the entertainment industries to send out "educational notices" to internet users suspected of copyright infringement. Having seen this type of "education" take many forms in the past, from silly to threatening, we have since waited to see what form this iteration would take. Well, TorrentFreak got in touch with someone who was notified through the system, and it appears this version is relatively benign.

The redacted sections are those that would identify the individual to whom it was sent, but you get an idea of the actual content in the notice. The links included in the notice are to the subscriber's ISP account, as well as one that takes you to the 'Get it Right Information Portal." It's at that portal that a subscriber will get more information on the suspected act of copyright infringement. While that information is fairly detailed, including such things as file sizes and types, the times and dates of the infringement, and the application used in the alleged infringement... the whole thing still relies on the faulty evidence of an IP address. That's problematic for reasons we've discussed to death here at Techdirt, but given the lack of any threatening language in any of this, it's still all fairly benign.

Which is why the individual TorrentFreak spoke with, who admits to committing the act in question, doesn't think the public will be all that impressed with this unsolicited "education."

“I don’t think [the warnings] will work, at least not on a big scale. Maybe they will educate some people who did it by mistake or did it just once but for someone like me there is no hope. But at least the campaign is not aggressive.”

The only thing in all of this that raised some eyebrows was that this notice came from Sky, the same ISP that has suggested that receivers of these notices will be forced to remove filesharing software to keep service from being interrupted.

“Your broadband service won’t be affected as a result of receiving this email alert,” Sky assures its subscribers, but it doesn’t stop there. “However, if you continue to share content illegally using your broadband connection, Sky will request that you take immediate steps to remove or disable any file sharing software that is being used to share copyrighted content illegally,” Sky writes.

So, putting all of this together makes this a little more troubling. ISPs will monitor your connection at the behest of private industry, will notify you that they're doing so, and only promise to serve you as their customer if you agree to remove software with all kinds of legitimate uses... and all of this is still based on the concept that an IP address is useful as an identifier for an infringer. When taken in total context, it's easy to see how this foot-in-the door, benign "education" could transition to ISPs mandating control of the public's software rollouts to get service. And that's not benign at all.

19 Comments | Leave a Comment..

Posted on Techdirt - 10 February 2017 @ 2:01pm

Judge Nixes PS3 Linux Class Action Settlement As Class's Lawyers Victimize The Class A Second Time

from the class-dismissed dept

We've made the point for several years now that the way class action lawsuits are handled in America is flawed in fundemental ways. What was supposed to be a method for enabling large groups of the aggrieved to pool resources against much larger and better-funded entities has instead devolved into a procedure that appears almost perfectly designed to enrich unscrupulous lawyers while the class itself gets a laughable percentage any monetary damages.

We get to see these flaws in practice yet again, this time in an update for the story that simply will not die: the legal action over Sony removing the PS3's ability to run Linux, which it advertised when the console launched. The class action suit had reached a proposed settlement, only to have the presiding judge nix it, essentially over concerns that the class was being victimized all over again, this time by its own lawyers.

The California judge presiding over the litigation is now killing the proposed settlement amid concerns the lawyers representing the class haven't explained why they should get $2.25 million for their legal services, especially considering that the deal has made it burdensome on gamers to get their cash. Of the gamers who tried to get their $55 refund, 25 percent have been rejected.

"The Court has concerns, based upon how the notice and claims process preceded, the results it produced, and the disproportionality of the attorneys’ fees versus the class recovery, that the settlement agreement is not fair, reasonable, and adequate."

Judge Yvonne Gonzalez separates her concerns into two categories: the cut taken by the class's lawyers and the burden on the class in attempting to collect on the settlement. For the question about the lawyers' fees, the numbers are pretty ridiculous. The maximum the class would be compensated under the settlement would be just over $600,000. For this award, the class's lawyers would be compensated $2.25 million. In submitting the settlement to the court, there was apparently no attempt to justify this fee, which is perhaps because any justification would be difficult to formulate for a case that the court notes never got further than discovery and a grand total of two motions before the court.

This lack of evidence is all the more concerning in light of the fact that the litigation here never progressed beyond a motion to dismiss and an appeal of that motion. While some discovery was apparently conducted, that discovery does not nearly approach the level that would have been required to take the case to class certification, or beyond. Without billing records or some more detailed explanation of the basis for the fee request, the Court is without sufficient information to determine whether the request is reasonable.

And then there are the hoops members of the class would have to jump through should they attempt to collect. The same lawyers happy to take four-times the money as the entire class had apparently agreed to settlement conditions including the following:

Here are some of the hoops that were required for both groups to get the refund: proof of purchase, a console serial number, and the Playstation Network Sign-in ID used with the Fat PS3 between November 1, 2006 and April 1, 2010. Class A members were also required to prove use of the Other OS functionality and a statement under the penalty of perjury that the Linux operating system was installed and used. Consumer Class B members had to provide a statement under the penalty of perjury that they knew about the Other OS functionality and relied upon the Other OS functionality in making the decision to purchase a Fat PS3, "and intended at the time of your purchase to use the Other OS functionality." There were also other hurdles, including forcing gamers to obtain a "temporary ID" from the settlement administrator that Sony would use to check against its own records to verify purchase of a Fat PS3.

So, claimants would have to provide all kinds of proof of all kinds of everything in order to collect on the settlement...and obtain a temporary ID so that Sony could verify much of that same information in its own records. If that seems like the settlement was designed to throw up as many annoying barriers as possible to collecting the maximum $55 per claim, it's likely because that's exactly what occurred. The court notes that this kind of circular runaround is likely to discourage claims.

Class action lawsuits: great in theory, brutally corrupt in practice. It's nice to see a court recognize this and look out for the public to keep them from being victimized all over again.

Read More | 26 Comments | Leave a Comment..

Posted on Techdirt - 8 February 2017 @ 4:21pm

Funcom Responds Well To Mixup Over Denuvo DRM Resulting In Piracy Of Conan Exiles Game

from the good-guys dept

With the way the past couple of weeks have gone for Denuvo, the DRM that was supposed to end piracy but instead only ended the industry's brief resurgence in faith in DRM, you would be forgiven if you thought this was going to be yet another post about another Denuvo-protected game being cracked and released to the pirating masses. This isn't that kind of story. Instead, it's the story of game publisher Funcom accidentally stripping Denuvo out of the latest build of its early access game, Conan Exiles, and having that be released to the pirating masses.

In Conan Exiles' case, Denuvo Anti-Tamper was temporarily removed - and accidentally. An updated version of the game was suddenly without protection. Denuvo Anti-Tamper returned soon enough, via another update, but not quickly enough. Pirates pounced and the damage was done.

Remember, Conan Exiles isn't solely an online game, which tend to prevent piracy by requiring game versions to match that of the official servers. In Conan Exiles you can host your own worlds and play them alone or with others, or join their private worlds. In other words, a pirate can play the game.

I'm having trouble thinking up a way to construct a more frustrating experience for a game publisher. To have a game not susceptible to server check-ins, to have tried to infuse that game with DRM only to have it stripped in error and released, and to then have that game very much playable by the people you had specifically tried to prohibit via the DRM is like some kind of trifecta from hell for a game publisher. Remember, Nintendo lost its shit comnpletely when its free app was found to be "pirated." You're probably expecting Funcom to be cheesed off at equal or greater levels.

Except, at least from the company's first public statements on the matter, not so much.

"There is unfortunately not much we can do about those who choose to download and play unauthorised copies," Funcom said, "but we hope they make the jump to the official version so they can stay up to date with the latest patches and improvements. Being an Early Access title, there will be a lot of updates going forward!"

It's a nearly perfect response. First, the company admits that piracy is a thing that's going to happen. Then the company makes both a logical case for why fans of the pirated versions have a reason to buy an authorized copy, while maintaining a cool demeanor and enthusiasm that can only ingratiate the publisher to its fans, paying customers or otherwise. And keep in mind that it would be totally understandable if Funcom had a negative emotional response to all of this. But this way is better business.

It may be a little light on the connecting with fans part of the equation, but Funcom has focused on giving those who might pirate the game -- and like it! -- a reason to buy. Well done.

19 Comments | Leave a Comment..

Posted on Techdirt - 8 February 2017 @ 10:33am

GOP Senate Streisands Elizabeth Warren And Coretta King In Attempt To Silence Her

from the oops dept

We've covered all kinds of stories about the Streisand Effect here at Techdirt, for the obvious reason that our overlord originally coined the term. From individuals to professional sports leagues to celebrities, there is something of a pantheon in these pages of those that attempt to silence speech or coverage they don't like which instead results in much wider coverage of that speech or coverage. But I can't seem to find an instance where we've had the opportunity to ding an entire wing of a congressional body for failing to understand how all of this works before.

And so it is with great pride that I am able to bring you the story of how the Senate silenced Elizabeth Warren as she read a letter authored by Martin Luther King Jr.'s widow during the debate over confirming fellow Senator Jeff Sessions as Trump's Attorney General.

The rebuke of Warren came after the Massachusetts Democrat read a letter written 30 years ago by Coretta Scott King, the widow of Martin Luther King Jr., opposing the nomination of Jeff Sessions for a federal judgeship. Warren cited the letter during a debate on the nomination of Sessions -- now an Alabama senator -- as Donald Trump's attorney general. Reading from King's letter to members of the Senate Judiciary Committee in 1986, Warren said: "Mr. Sessions has used the awesome power of his office to chill the free exercise of the vote by black citizens in the district he now seeks to serve as a federal judge."

Republicans cried foul -- charging that Warren violated Senate rules against impugning another senator. A vote along party lines upheld that decision, turning what could have been an ordinary late-night partisan floor speech for political devotees into a national story.

We'll get to that last bit in just a moment, but let's not fail to point out how silly the application of this rule is and what it means for the prospect of sitting Senators filling cabinet positions. If Senate rules prohibit another Senator form impugning a cabinet appointee during the debate over that appointee's cabinet nomination, what would be the point of the debate? And keep in mind that Warren was not going on some self-authored tirade. She was reading a letter from the widow of the single most recognized civil rights leader, which was sent to Congress in the past -- though Senator Strom Thurmond refused to put it into the Congressional record. That letter still had a hand in defeating a previous nomination of Sessions to judgeship. In February, which is Black History Month. This is banal as it gets.

Separately, Senators complained about Warren quoting former Senator Ted Kennedy on his opposition to Sessions back in 1986. So, apparently the rule is that even if you're quoting former Senators and people closely associated with the civil rights movement, you can't say anything that might upset a sitting Senator, even if it was discussed previously in the Senate and now as part of the debate over his own nomination to be Attorney General.

Of course, by invoking this rarely used Senate rule, one which has previously been ignored, Senator Warren and King's letter is splashing headlines all over the place. On top of that, Warren and others rushed to social media circles to make sure the letter was heard by everyone who would listen. Which, given the way all of this is trending on social media, was a great many people.

Warren went straight from the Senate floor to a call-in appearance on Rachel Maddow's MSNBC show, a favorite of progressives. "I've been red-carded on Sen. Sessions. I'm out of the game of the Senate floor," she told Maddow.

She also read King's letter outside the Senate floor in a Facebook live video.

That Facebook live video now has over 7.5 million views. That seems like approximately 7.5 million more people than would have watched Warren's hour-long speech on C-SPAN.

We can leave politics aside completely and still shake our heads at how badly this attempt to silence Warren and the reading of the letter has gone for those that attempted the silencing. This is pure Streisand Effect at work, and it's being supercharged by those that raised the objection to the letter's reading, who don't seem to understand how easily this situation and their own words will be used against them.

Senate Majority Leader Mitch McConnell defended evoking Rule 19, a rarely evoked chamber regulation that prohibits senators from impugning each other.

"She was warned. She was given an explanation. Nevertheless, she persisted," the Kentucky Republican said on the Senate floor, delivering an instantly classic line -- the kind liberals imagine being replayed ad nauseum in TV ads in a future presidential campaign.

Again, this isn't about political teams. If you're in favor of Sessions, if you're a Republican, if you're a Trump voter, you should still be able to understand how bungled this whole thing was. Had there been no attempt to silence Warren, coverage of the letter being read likely would have registered as a curiosity at most. Instead, this thing is everywhere. Including below.

Read More | 57 Comments | Leave a Comment..

Posted on Techdirt - 6 February 2017 @ 5:35pm

Wawa Versus Dawa: Trademark Dispute Blamed On A Need To Police That Doesn't Exist

from the wawa? dept

We've made the point before. In the pantheon of trademark disputes, the most commonly trotted out excuse for overt protectionism is nothing but a headfake. While companies often proclaim their bullying actions are a requirement under trademark law's provision for active policing of infringement, the fact is that this requirement does not mandate that companies roadblock any and all similar uses to their marks. Instead, the idea is that trademark holders cannot allow actual infringements to go unchallenged.

For an example of the difference, we can point to the current dispute between two companies in the food mart business, Dawa Food Mart and Wawa Inc. The former is a single store in New Jersey that has operated for two years now. The latter is a mid-sized chain that only recently decided that Dawa infringed on its trademarks.

According to The Courier-Post, Wawa has filed a federal trademark infringement lawsuit against Dawa Food Mart, located at 15 Lafayette Street in Paterson, Passaic County.

The Korean owner of Dawa Food Mart, identified only as Han in the report, explained to the Courier-Post that "Dawa" means "welcome" in his native language. The shop has been open for about two years now.

It's worth noting that Wawa has a long history of policing its trademark to near feverish degrees, having filed suit against tour and gaming companies that use the term "wawa" in their names. At least Dawa Food Mart is more in the marketplace ballpark, though even then we're talking about completely different animals. Add to that the difference in stature and offerings and it's unclear how likely any real confusion could possibly be.

And, since the potential confusion is really the question in trademark actions, you might have expected Wawa to make the claim for it when asked to comment on the suit. But it only did so in a roundabout way, instead seeming to fall back on the old requirement to police excuse.

"Wawa spokeswoman Lori Bruce told the newspaper that the lawsuit is about fulfilling an "obligation to protect consumers from any likelihood of confusion" and protecting "the brand name," symbolized by the Canada goose whose name is a direct translation from the Native American language used in the region."

There are some barriers to Dawa winning out, which mostly amounts to both brands using the color red on signage. Still, it seems silly to soberly worry about any real customer confusion here.

18 Comments | Leave a Comment..

Posted on Techdirt - 3 February 2017 @ 7:39pm

HowStuffWorks Attempts To Explain Why Advertisers Use Super Bowl Euphemisms, But I Have A Simpler Explanation

from the the-big-lame dept

It's common knowledge at this point why advertisers start to go wonky after the new year. We've long talked about how all kinds of groups and companies suddenly begin playing the euphemism game when it comes to the Super Bowl, America's annual celebration of brain trauma. Everyone, from comedians to beer makers to tech companies, goes to great lengths to wink at everyone as they all refer to the Super Bowl by any name other than its own. Why? Well, because the NFL has a trademark on the term, which allows it to restrict the user of the phrase only to its sponsorship partners... except that that's not remotely true and isn't how trademark law works at all. Instead, the only real prohibition is on the implication that a company is an official sponsor of the NFL when it isn't. Beyond that, simply calling the game what it's called isn't trademark infringement.

But this is confusing enough that this year the website HowStuffWorks has done an entire piece to explain to an almost certainly confused public why companies are pretending that nobody knows what they're talking about when they say "the big game" instead of "the Super Bowl." It's a post that deserves a rebuttal, which I will helpfully provide.

The Super Bowl is a registered trademark of the NFL. And the football league also owns the copyright to the telecast of the game. That's why advertisers use unregistered phrases like "the Big Game" or "the football championship" when hawking a furniture sale or happy hour, for instance. The NFL allows the Super Bowl sponsors and the network airing the game that year to use the phrase, but they pay heavily for it.

Not true. Those advertisers pay to be official sponsors, not to simply use the phrase. Anyone can use the phrase Super Bowl as a means for accurately describing the name of the game about which they are talking. They just can't claim to be sponsors, nor imply a relationship with the NFL. If Best Buy advertises a big screen television as the "preferred TV on which to watch the Super Bowl," that's a no-no. But if it says it is running a sale on big screen TVs and to get yours before Super Bowl Sunday, that ain't trademark infringement.

So, the explanation for why advertisers don't say "Super Bowl" in that manner isn't because the NFL has the intellectual property rights to it, it's because the NFL is a duplicitous money-monster that has perpetrated a farce in pretending trademark law is something that it isn't.

"The NFL wants to make sure they keep their sponsorships the way they want to control who has use of the phrase," says Anderson. "That way people can know what's directly connected to the NFL and their product." Trademark infringement occurs when someone uses a trademarked term (like "Super Bowl") in a way that may cause a person to wrongly infer an official connection between the company the trademark belongs to and the product advertised.

The NFL absolutely wants that, and it regularly bullies anyone who uses the phrase in a nominative manner in any kind of advertising or social media. But the "how" part of HowThatWorks isn't answered by trademark law. It's a combination of the aforementioned misleading of the public along with the NFL's regular practice of being a protectionist idiot.

Because the NFL should want the term said as often as possible by as many people, and companies, as possible:

It’s unnecessarily stupid for the NFL, which should want “Super Bowl” said as often as possible, because until 100% of TVs new and old are tuned to the Big Game, the league has not accomplished its goal of complete domination of American consciousness. Best Buy wants to have a Super Bowl sale? Great! That’s a free ad for the NFL, which should thank a non-sponsor for promoting their product.

This is not, however, how the NFL thinks. This is the same league that banned its own teams from posting GIFs of game highlights, ostensibly to protect its TV partners, as if any GIF-worthy play isn’t being turned into a GIF by a thousand different people and going viral anyway. Shouldn’t the league want its teams to reap the benefits of all those clicks, which convert to social media followers, which convert to deeper embedding of the product, through official channels, in the minds of consumers?

Nah, the league would much rather play language cop in a silly game it has made out of trying to alter trademark law simply by out-jackass-ing the Olympics. And, hey, it's worked! By simply pretending trademark law is something that it isn't, the NFL has managed to get the world's advertisers to play pretend along with the league. And what a victory it is, what with every advertiser using barely-disguised euphemisms for the game that we all know they're talking about. Victory!

So, how does this work? Not in the way HowStuffWorks describes. The NFL acts as a protectionist lie-geyser bully through a legal team on more figurative steroids than the league's field-hands. That's how it works.

26 Comments | Leave a Comment..

Posted on Techdirt - 2 February 2017 @ 5:08pm

Court Tosses Lawsuit Brought By Brother And Sister Against Take-Two Interactive Over NBA2K Face Scans

from the nice-try dept

As face-scanning technology has progressed, its use in video games has become more and more realistic. While several games make use of this to transport the gamer directly into the game they play, one of the best to do this is 2K Sports' NBA2K series. By using a web camera or your smartphone, you can take a scan of your face and import it into the game to create your own avatar to ball out on the court with NBA stars. I've done this, and it's awesome.

It's that face-scanning feature that was the subject of an attempted lawsuit by a brother and sister in Illinois, however, who argued that Take-Two was violating the state's Biometric Information Privacy Act, which seeks to ensure that businesses that store biometric data for their customers are protecting that data and not using it in ways the customer had never intended. The idea is that if your bank requires a fingerprint to access your account, and either loses that data to theft or uses that data for some other purpose, the public can get monetary and injunctive relief from the court. To do so, however, the plaintiff must suffer actual harm from a violation of BIPA.

Ricardo and Vanessa Vigil used the face scan feature in a copy of NBA2K they purchased, and agreed to the terms of service for the feature, but then sought monetary damages against Take-Two, claiming that the "actual harm" they suffered was the failure to follow every rule in BIPA itself. They claimed that the risk that their faces could be pilfered after they decided to play the online portions of the game with the characters they created using their face scans qualified as actual harm. The judge, after a motion to dismiss by Take-Two, was not buying it.

There is no allegation that Take-Two has disseminated or sold the plaintiffs' biometric data to third-parties, or that Take-Two has used the plaintiffs' biometric information in any way not contemplated by the only possible use of the MyPlayer feature: the creation of personalized basketball avatars for in-game play. The purported violations of BIPA are, at best, marginal, and the plaintiffs lack standing to pursue their claims for the alleged bare procedural violations of BIPA.

In other words: nice try on the money-grab, but we're not buying it. The idea behind BIPA is not to allow the public to syphon away money from companies that have been completely upfront about the use of biometric data, or face scans. Had the court allowed the potential for injury to serve as a valid reason for a lawsuit, the use of biometric data by companies and consenting members of the public would result in all kinds of lawsuits. And that technology has far more useful applications than video game face scans.

Read More | 3 Comments | Leave a Comment..

Posted on Techdirt - 1 February 2017 @ 4:43pm

Texas A&M Accused Of Committing Copyright Infringement In Effort To Bolster Trademark Protection For '12th Man'

from the live-by-the-ip,-die-by-the-ip dept

I'm not sure there is a more annoying group of stories about trademark protectionism than that of the "12th Man." What most likely assume is a common term at football games, popularly denoting the impact a raucous crowd can have on the opposing team, is actually a closely guarded trademarked term of Texas A&M. So closely guarded, in fact, that the school has not only policed use of the term by other football organizations, but it has also seen fit to threaten breweries and double-amputees over their use of the term. So concerned is Texas A&M by the moral position on intellectual property, in other words, that there are no limits on how it will act to protect its trademark.

That includes violating someone else's intellectual property, it seems. It appears the university is being sued for copyright infringement after having posted on its website a large swath of an unpublished book by an author on the history of Texas A&M, all in order to bolster its own claims on the trademark for the "12th Man."

Alabama resident and author Michael J. Bynum sued the Texas A&M University Athletic Department, the Texas A&M University 12th Man Foundation and three school employees on Thursday in the Southern District of Texas, claiming the athletic department posted the “heart” of his unpublished book “12th Man: The Life and Legend of Texas A&M’s E. King Gill” on its website “nearly word-for-word” in January 2014 without his permission... He made several trips from Alabama to Texas, visiting Gill’s high school in Dallas and Texas A&M University where he met with Brad Marquardt and Alan Cannon, media-relations employees in the school’s athletic department.

Cannon and Marquardt are now defendants in the lawsuit.

Shortly after a follow-up email exchange to Marquardt about the book, the infringing post made up of a draft Bynum had sent to the defendants suddenly appeared on the school's website. Gone from the post was the copyright notice Bynum had included on his draft, along with apparently any attribution to Bynum himself as the author of the work. That post was then used to bolster the ownership claim to the "12th Man" by the school against the Seattle Seahawks, with whom the school eventually worked out a licensing deal for the term. In other words, Texas A&M committed copyright infringement in order to try and protect a fairly generic trademark.

Now, in fairness to Marquardt and the school, the post was taken down when Bynum called the next day to complain. Marquardt even offered the following explanation for how this all happened in an email to Bynum.

“It was an incredibly coincidental mix-up on my part,” the email said. “I was cleaning my office, which you may recall is generally a cluttered mess. While going through files, I found a story of the 12th Man on some slightly yellowed 8.5×11 paper. I had no recollection of it [sic] origin.

Look, for the everyday man, this kind of incidental copyright infringement might seem like a reasonable mistake to have made. But, of course, this is Texas A&M we're talking about, and the school is super into intellectual property protection. Certainly its officials ought to know better than to simply post anything they might find on yellowing printer paper that happens to be lying around the office from who-knows-where? And the taking down of the post might have been fine if the school's post hadn't managed to go viral almost immediately after it had been posted.

It's sort of fun how you can pretty much set your watch to how those who are the most vociferous in protecting intellectual property will be caught violating it.

16 Comments | Leave a Comment..

Posted on Techdirt - 1 February 2017 @ 2:36pm

Denuvo Responds: Five Days Is Better Than No Days, Amirite?

from the math dept

It certainly looks for all the world like Denuvo is unraveling as a valid option for DRM in video games. The software, once described as the final solution to piracy, has had its defenses cracked in time intervals following an exponentially shorter curve. For how long it would take to crack a Denuvo-protected video game, reality went from "never", to "months", to "less months" in the case of the latest Doom game. After Doom was cracked, and after the developer removed Denuvo from the software via a patch, the makers of Denuvo spun it as a victory, stating that developers were protecting their games during the early release window and then removing it later.

But then Resident Evil 7, protected by Denuvo, was cracked in under a week's time. With its spin halted by this new reality, Denuvo's response has changed slightly to: hey, it could be worse!

Now, Denuvo is defending its "Anti-Tamper" technology, saying it's still the best copy protection currently available.

"It's correct that the title in question was cracked some days after release," Denuvo Marketing Director Thomas Goebl told Eurogamer. That said, "Given the fact that every unprotected title is cracked on the day of release—as well as every update of games—our solution made a difference for this title."

It's a response as bold as it is simple: five is a number greater than zero. And, hey, that's true. Every positive number is greater than zero. Like, oh I don't know, the cost of Denuvo licensing being greater than the zero it costs to not implement it at all. If we're going to boil this all down to simple math equations, it seems to me the most important equation should be is X greater than or equal to Y, with X being the amount of money a few days of DRM protection provides and Y being the cost of using Denuvo DRM. With a cracking window short enough that I can count the number of days it takes on one hand, it strains the mind to understand how X could possibly be greater than Y.

And keep in mind that Denuvo prefaced this by stating that its DRM was the best on the market. And that's true! But that doesn't say anything positive for the value of Denuvo, while at the same time telling game companies all they should need to know about the value of DRM in general: it doesn't work. And not only does it not work, but you don't get your money back after it fails to do its job.

Goebl did deny earlier reports that publishers were being issued refunds after their Denuvo-protected games had been cracked. "We do not have any deals in place that offer refunds if a game is cracked within a specific time frame," the company told Eurogamer.

Hey, at least they're being upfront about it. Game developers can buy a thing that doesn't work and doesn't come with a refund, or they could notice that Resident Evil 7 continues to sell very, very well, piracy and all.

27 Comments | Leave a Comment..

Posted on Techdirt - 31 January 2017 @ 5:38pm

RIP Denuvo: Resident Evil 7 Cracked In Five Days

from the on-to-the-next-one dept

The Denuvo saga has been impressive on a couple of levels. The DRM software's public cycle was notable first in that game-cracking groups, notorious for their confidence in their own abilities, initially sounded the alarm over Denuvo's status as an anti-piracy unicorn that would never be broken and would lead to the end of software piracy. That happened in January of 2016. By August, Denuvo was being broken by other cracking groups. By the time winter rolled around, game developers, including developers of AAA titles, were pushing out quiet updates to games to remove Denuvo from their software entirely. Denuvo's makers, meanwhile, spun this as a success story, suggesting that developers were chiefly using Denuvo to protect games during the initial release cycle and then removing it afterwards.

But that thin thread of relevancy appears to have snapped, relegating Denuvo to the same scrap pile as every other form of DRM ever tried, now that a cracking group has successfully cracked a Denuvo-protected game in five days' time.

Yesterday, just five days after its January 24th retail date, Resident Evil 7: Biohazard was cracked by CPY. The self-proclaimed Italian group placed RE7 on a so-called top site, with the ‘piracy pyramid‘ doing the rest of the work by cascading it to torrent sites in a matter of minutes. Currently, tens of thousands of pirates are grabbing the 23GB download.

So, that protected release window has shrunk to just under a week. Whatever the cost to implement Denuvo in a game, those five days can't make it worth the price of admission.

Now, some will point out, as does the TorrentFreak post, that there are still un-cracked Denuvo-protected games on the market. And that's absolutely true. But also true is that the trend for the efficacy of Denuvo DRM only travels in one direction and not a good one for those looking to the software as a way to end the scourge of video game piracy. When we begin measuring the effectiveness of DRM in days, or even when we do so in weeks, it's clear the only logical action for developers that used it is to rage-quit the DRM entirely and move on.

Particularly when that same DRM, so ineffective at stopping piracy, proves to be impressively effective at pissing off real customers.

Some fans have complained that Denuvo is unwieldy and annoying. It forces games to be dependent on third-party activation servers and makes certain types of modding impossible. Publishers use the program regardless, in hopes of boosting game sales by rendering piracy more difficult.

And now that it's no longer serving that purpose, it's time it was dropped from use. The good news for those of us who want to see a thriving games market is that Resident Evil 7, because the reviews have been quite positive, is selling quite well. Even with it having been cracked in five days' time. Because piracy isn't a barrier to success, nevermind one worth annoying legitimate customers over.

23 Comments | Leave a Comment..

Posted on Techdirt - 27 January 2017 @ 3:01pm

Jose Cuervo Loses Bid To Block Trademark Registration For Il Corvo Wine

from the i'll-drink-to-that dept

When it comes to trademark disputes involving alcohol companies, we should all agree by now that things tend to get really, really silly. Too often a reversion to protectionism causes company lawyers to stretch the plain meaning of words on matters of similarity and the potential for customer confusion. The latest example of this comes to us from South Africa, where the company behind Jose Cuervo tequila attempted, and failed, to block the trademark registration for Il Corvo branded wine.

Tequila Cuervo SA de CV turned to the North Gauteng High Court in Pretoria for relief when Fabrication and Light Engineering CC – South Africa’s largest storage and construction equipment manufacturers – applied for the registration of the proposed Il Corvo trademark.

The tequila manufacturer, which owns the trademarks Cuervo and Jose Cuervo, as well as the raven depicted on some of their products, maintained the proposed Il Corvo mark was likely to deceive or cause confusion because of the mark’s similarity to their registered trademarks.

The court didn't buy the argument for several reasons. To start, wine and tequila might be said to be in the same or similar marketplaces, but it's more accurate to say they are in tangential markets. Both products might be sold in the same store, for instance, but nobody is going to accidentally buy a bottle of wine with the intention of buying tequila. It's something I have been arguing for years: the marketplace distinction for trademarks needs to be more nuanced than a marketplace designation for something like "alcoholic beverages."

Almost certainly more impactful was that nothing in the trade dress for the two companies or their products was similar. That's because Il Corvo wasn't trying to trade on Jose Cuervo's name at all; it was just a slightly similar name. And that name is ultimately what this was all about. The entire question is whether a wine that incorporated "Corvo" in its name would be confused for a tequila that incorporated "Cuervo" in its name.

The proposed Il Corvo trademark did not globally resemble Tequila Cuervo’s trademarks and were visually and conceptually different. The differences between the marks were stark, the judge said. He said although there was a similarity between Corvo and Cuervo, the overall impression given by the marks based on their distinctive and dominant components were not so similar that it would cause confusion. He said it was extremely unlikely that the notional consumer would know that “corvo” and “cuervo” both mean raven in different languages.

It's the kind of ruling I wish we saw more of stateside, taking into account the overall impression left with the consumer, rather than defaulting to rewarding protectionism and aggressive policing of a trademark.

8 Comments | Leave a Comment..

Posted on Techdirt - 27 January 2017 @ 11:57am

2012 Research Paper Linking Video Games And Violence Finally Retracted Over Massaged Data Accusation

from the boom,-headshot dept

For all of the studies that often appear almost fervent in their attempts to find any thread of a link between violent video games and real life tendencies to violence, one of the standouts in the crowd has been Brad Bushman. Bushman last graced our pages showing how some combination of candy and loud noises showed that teenagers who had played a violent video game ate more bad food and were aggressive towards others in the immediate aftermath. This was used to essentially claim that violent video games were bad for teenagers, despite longer-term studies involving more participants coming to the opposite conclusion.

More to the point for this post were accusations from Bushman's peers that his research methods were generally flawed and that he was known to pick and choose which results from his experiments he wanted to include in the final analysis. It seems the study we discussed in that last post wasn't the only study in which Bushman has done this, as a 2012 research paper Bushman authored, delightfully entitled Boom, Headshot!?: Effect of Video Game Play and Controller Type on Firing Aim and Accuracy, has finally been retracted by the journal Communication Research.

Now, the stated reason for the retraction is that there were some questions from peers about the data used in the paper and that Bushman could no longer produce that data for analysis, hence the retraction. That's a barely accurate description of what actually happened regarding the paper.

The two outside researchers mentioned in the notice are Patrick Markey, psychology professor at Villanova University and Malte Elson, a behavioral psychology postdoc at Ruhr University Bochum in Germany. They began questioning the results when Markey noticed some statistical inconsistencies that suggested the data were positively skewed. Bushman has claimed that the push to retract the paper was a smear campaign. But, ultimately, he agreed with the retraction.

It stretches credulity that research done a mere few years ago and the resulting data would disappear in this way, and only after criticism of it arises. And Bushman's agreeing to the retraction should tell you the whole story here. But what's crazy about this is that Markey and Elson have been lodging complaints against Bushman's paper for years. That the paper was allowed to stay in its published form for all this time doesn't say much for Communication Research's standards. Elson, in particular, appears to be happy, but exasperated.

I am pleased to see the paper is finally retracted almost 3 years after the authors were first notified of the concerns (and 2 years after it was first reported to the Ohio State University). The public record has now been corrected, which is the only thing Patrick and I ever wanted after we found evidence of severe errors in the data on which the now retracted paper was based.

Who knew the peer review process actually took so long?

11 Comments | Leave a Comment..

Posted on Techdirt - 27 January 2017 @ 8:30am

Copyright Trolls Overplay Their Hand In Finland, Bringing A Government Microscope To Their Practices

from the oops dept

Copyright trolls operate on a precarious edge.They have to find enough people willing to fall for their threat settlement letters to be profitable, while at the same time not causing enough of a stir to be noticed by the general public or risk backlash. Quite often, copyright trolls do indeed cross this line. It's not all that often, however, that they cross it in spectacular fashion.

Yet that appears to be exactly what they've done in Finland, where so many internet account holders have been sent threat letters that both local law enforcement groups and the national government have been forced to respond.

HS estimates that as many as 60,000 people could be in line to receive cash demands similar to the one detailed above. They come from Hedman Partners, the Helsinki law firm that’s been involved in copyright trolling cases in Finland for the past couple of years. Based on a 2,200 euro settlement, the cash involved is potentially enormous. For every hundred cases settled, the law firm reportedly pockets 130,000 euros for “monitoring costs”, with 90,000 euros going to the rightsholders.

Due to the scale of the problem, complaints from letter recipients are now being reported to various local authorities. After receiving dozens of complaints from bewildered Internet account holders, police were forced to issue a statement last Friday.

That statement from the police essentially amounted to stating that there was no criminal aspect to any of this, that it was instead a civil matter, and could the public please stop inundating them with calls about it, please? It's not surprising that the police were called, however, as these types of threat letters are typically constructed in a manner that might lead the reader to assume there are criminal penalties that could be levied against them. It also seems that many of the bewildered account holders had contacted the police to make a claim of fraud against the copyright troll, a claim the police decided not to pursue.

But the Finnish government might, it seems.

With the police backing away from any involvement, expectations have now fallen on the government to tackle the problem. Thankfully for those involved, the Ministry of Education and Culture appears to be taking the matter seriously and has promised an investigation.

“It is not intended that our legislation should be used for milking [the public],” said ‎Government Counsellor Anna Vuopala. “It seems that it is appropriate for the Ministry to convene the parties involved in order to find out whether the law is being complied with in all respects,” she said.

This is probably the worst case scenario for a copyright troll: creating enough of a fervor with the public to warrant a look-see from the public officials beholden to that public for votes. Specifically, the government is going to examine whether Finnish ISPs are following the law that requires them to hand over account holder information if piracy occurs on an account to a "significant degree." It seems that some of the settlement letters are going to account holders that have, at most, engaged in something of a one-off case of filesharing. Whatever the definition of the laughably vague term "significant degree" might be, it certainly seems obvious that such a degree can't be a single instance.

A crackdown on copyright trolling may now be on the menu, all because the trolls overplayed their hand.

14 Comments | Leave a Comment..

Posted on Techdirt - 25 January 2017 @ 10:48am

Six Journalists Arrested, Charged While Covering Trump Inauguration Protests

from the not-so-free-press dept

We're in something of an era of firsts here in America. We have our first billionaire President, for instance. Add to that that, on his first day as President Elect, Donald Trump saw fit to take to Twitter to take aim at the First Amendment. Fears for what a Trump presidency means for the rights of the press and for free speech rights have compounded since then, supercharged by Trump himself, who has constructed a narrative in which the press is his foil, either because he truly believes that's the case or out of pure political expediency. Whichever the case, we had another first as on the very day of Trump's inauguration, his first day officially as President of the United States, police managed to arrest and charge six journalists for the crime of covering the protests coinciding with the ceremony.

There had already been reports of two such arrests, but we now learn of four more.

A documentary producer, a photojournalist, a live-streamer and a freelance reporter were each charged with the most serious level of offense under Washington DC’s law against rioting, after being caught up in the police action against demonstrators.

The Guardian learned of their arrests after reporting on Monday that the journalists Evan Engel of Vocativ and Alex Rubinstein of RT America had also been arrested and charged with felonies while covering the same unrest on Friday morning.

Six arrests, six journalists charged, and six arraignments and releases pending future hearings in the coming months. The arrest reports for each are remarkably free of any detail on specific actions these individuals are to have undertaken which would violate the law.

None of the arrest reports for the six journalists makes any specific allegations about what any of them are supposed to have done wrong. Keller’s report, which also covers the arrests of an unknown number of unidentified other people, includes a note that a police vehicle was vandalized. “I had absolutely nothing to do with the vandalism,” said Keller.

Reports on the arrests of five of the six journalists contain identical language alleging that “numerous crimes were occurring in police presence”. They state that windows were broken, fires were lit and vehicles were damaged. “The crowd was observed enticing a riot by organizing, promoting, encouraging and participating in acts of violence in furtherance of the riot,” the police reports said.

One of the privileges of American law is typically that it avoids levying legal responsibility on one individual for the actions of others. There's little sense generally in pointing at a crowd of people, a percentage of which are engaging in unlawful behavior, and tossing a legal net over them all. There's even less sense in this when the net catches members of the press, who the public relies on for reporting on newsworthy events. And there's even less sense still when the reporting is on a political matter.

Now, it's not as though it was only upon President Trump's inauguration that journalists were suddenly being arrested while performing their jobs. It happened on several occasions under Barrack Obama, beacon of transparency and press access though he claimed to be. Instead, this is something of a continuation of an attack on a free and open press, buttressed by a President engaged in open warfare with any press outlets he doesn't find favorable.

The signals have been sent since before his inauguration and since: access and information is going to be cut off. In response, several press outlets have announced investments into their investigative reporting teams. If the arrest of those journalists covering their stories continues to be accepted, that doesn't leave the public with much of a press at all.

137 Comments | Leave a Comment..

More posts from Dark Helmet >>