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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.

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Posted on Techdirt - 21 August 2017 @ 9:34am

Permission Culture Kills Off A Bunch Of Fun MLB 'Nickname Jerseys'

from the aborting-fun dept

With the direction of intellectual property rights in America generally being driven down a one-way street towards expansionism, the associated culture of permission has ridden sidecar. Unlike intellectual property rights, however, permission culture is bound not by statute and legal interpretation, but rather by the wider understanding of public opinion on those matters, which tend towards being flawed and uninformed. Still, permission culture counts even large corporate interests with lofty legal budgets among its victims.

See, for instance, the recent revelation that Major League Baseball's upcoming "Players Weekend" jerseys, which will feature hip player nicknames on the backs of jerseys, will not feature all the nicknames players requested as MLB attempts to navigate the tumultuous trademark waters.

Major League Baseball is playing it safe with player nicknames that will adorn novelty uniforms during what it calls Players Weekend at the end of August. But there won't be any nicknames that could possibly bring MLB trademark infringement troubles.

However, Philly.com reported that at least two Philadelphia Phillies players were denied their preferred nicknames because of intellectual property concerns. Zach Eflin and Hoby Milner wanted to wear the nicknames "Led Zeflin" and "Hoby Wan Kenobi" on their backs, but MLB nixed them. Promo Marketing Magazine reported that MLB rejected "Kojak" as a nickname for Adrian Beltre of the Texas Rangers. He'll have to settle for "El Koja" instead.

Now, the article makes the point that this isn't strictly about players having these names on their jerseys during games. It's also about MLB being able to sell and market those jerseys and concerns that actually selling jerseys with those names would open up serious trademark actions. But whether or not that concern is actually valid is an open question. Entities like Led Zeppelin and LucasFilms/Disney are not remotely in the baseball business, even if they are in the apparel business. These names, however, are pretty clearly a form of parody, even if its the lame pun type of parody. There's also zero in the way of potential customer confusion. This isn't to say that there would be absolutely no merit to a trademark claim brought by those groups, but it should be obvious that how meritorious those claims are would require a fight in court to decide.

But those viewing this through the lens of the culture of permission will see the infringements here as obvious. After all, they are references to other works and that kind of fun cannot be had unless licenses are paid. It's as though all of culture is constrained by some sort of first-to-file, or first-to-create standard, with fun gimmicks like Players Weekend in baseball living only at the pleasure of pure originality. Harm to others is not the concern; it's all about squeezing every possible revenue stream out there.

Eric Ball, an intellectual property lawyer with Fenwick & West LLP, Mountain View, Calif., said that “Hoby Wan Kenobi” probably wouldn’t harm the Walt Disney Co.’s Star Wars trademark if it appeared on the player’s shirt.

“But it’s a source of licensing revenue that those companies could have used,” Ball said. “Also, it’s not necessarily three days, because how long will these jerseys stay in the MLB shops?”

As we said, that's true, but the purpose of trademark is not and never was to keep anyone anywhere from ever making any money off of content that is not purely original and without nod or reference. But here we are. Thanks to permission culture.

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Posted on Techdirt - 18 August 2017 @ 1:39pm

Contractor Exposes Personal Information Of 1.8 Million Chicago Voters On AWS

from the oops dept

At some point, it seems clear that if Chris Vickery comes a-callin', you've screwed up when it comes to keeping the private information of customers/voters secure. Vickery works for Upguard, a cyber-security consulting firm that regularly seeks out insecure sites and works with their owners to secure them. Vickery's fingerprints have been on discoveries such as Verizon's exposure of the personal information of 6 million of its customers and a firm contracted by the GOP exposing the personal data of roughly every American voter everywhere.

And now Vickery and Upguard have found that a contractor managing the city of Chicago's voter rolls appears to have exposed more personal information on an AWS server.

The acknowledgment came days after a data security researcher alerted officials to the existence of the unsecured files. The researcher found the files while conducting a search of items uploaded to Amazon Web Services, a cloud system that allows users to rent storage space and share files with certain people or the general public. The files had been uploaded by Election Systems & Software, a contractor that helps maintain Chicago's electronic poll books.

Election Systems said in a statement that the files "did not include any ballot information or vote totals and were not in any way connected to Chicago's voting or tabulation systems." The company said it had "promptly secured" the files on Saturday evening and had launched "a full investigation, with the assistance of a third-party firm, to perform thorough forensic analyses of the AWS server."

So, a couple of things to note here. First, while it's true no voting information was exposed, a good deal of personal information certainly was. Names, addresses, last four digits of social security numbers; you know, all of the things one would need to wreak havoc on a person using their identifying information. Second, it appears that "promptly securing" the files mostly had to do with actually having a password needed to access them. There was no hacking required for Vickery to get to these files, because there was no password protecting them. Great.

Now, where I will give ES&S credit is that they are working with Upguard, rather than trying to vilify it, as we've seen done to so many other security researchers. That's a good thing. Still, Chicago officials are pretty pissed off.

"We were deeply troubled to learn of this incident, and very relieved to have it contained quickly," Chicago Election Board Chairwoman Marisel A. Hernandez said in a statement. "We have been in steady contact with ES&S to order and review the steps that must be taken, including the investigation of ES&S' AWS server. We will continue reviewing our contract, policies and practices with ES&S. We are taking steps to make certain this can never happen again."

Allen added that the board is considering how to notify and potentially offer remedies to those whose information was exposed.

"The expense for that is going to be borne by ES&S," Allen said. "This was a violation of the contract terms that explicitly lay out the requirement to safeguard the voters' data."

It's a wonder to this writer that the constant calls for things like e-voting machines continue when those in charge of securing voter data can't even do that right.

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Posted on Techdirt - 18 August 2017 @ 9:43am

Two Bollywood Film Producers Get Court To Block Tons Of Sites In India, Including Archive.org

from the street-sweeper-for-justice dept

How many innocents would you accept being caught up in an action designed to nab criminals? How many good people is it acceptable to throw into jail alongside the truly bad actors? Most people would agree that any action that penalizes the innocent in order to punish the guilty is a bad course, with only truly minimal amounts of collateral damage being acceptable. Now let's port that over to internet sites and ask how many innocent websites is it acceptable to block in order to block sites that are actually engaged in undesirable behavior?

Well, for the legal system in India, that question has often been answered in a cavalier manner, with regular court orders to block innocent websites being doled out to battle both terrorism and at the request of copyright holders to stop infringement. It's in the latter cases where things get really silly, with previous orders issued to block sites like GitHub and the Internet Archive. Well, it seems the Internet Archive endured this sort of thing again recently, as a court order at the request of two Bollywood film studios caught archive.org into its ISP blocking web.

Earlier this week (and again for no apparent reason), the world renowned Internet Archive was rendered inaccessible to millions of users in India. The platform, which is considered by many to be one of the Internet’s most valued resources, hosts more than 15 petabytes of data, a figure which grows on a daily basis. Yet despite numerous requests for information, none was forthcoming from authorities. Quoted by local news outlet Medianama, Chris Butler, Office Manager at the Internet Archive, said that their attempts to contact the Indian Department of Telecom (DoT) and the Ministry of Electronics and Information Technology (Meity) had proven fruitless.

Now, however, the mystery has been solved. The BBC says a local government agency provided a copy of a court order obtained by two Bollywood production companies who are attempting to slow down piracy of their films in India. Issued by a local judge, the sweeping order compels local ISPs to block access to 2,650 mainly file-sharing websites, including The Pirate Bay, RARBG, the revived KickassTorrents, and hundreds of other ‘usual suspects’. However, it also includes the URL for the Internet Archive, hence the problems with accessibility this week.

Let's be clear about what this sort of thing represents: the punishment of the innocent in favor of an easy and lazy attempt to block copyright infringement. That's not an overstatement. The continued use of court orders to block entire websites and the routine collateral damage are not exceptions, they are the rule. That they are allowed to continue to do this sort of damage even while the Indian government hand-waves away frantic requests for information from innocent site operators is as good a definition of whatever the opposite of justice is as I can think of.

Importantly, neither the court that issued the order or the two film companies requesting it, and ostensibly providing the list of sites to be blocked, are due any recompense for these actions. Perhaps most frustrating, the Internet Archive has clearly stated that not only does it have a method for copyright holders to request content takedowns, but it complied with those requests from these very same film studios.

“Is the Court aware of and did it consider the fact that the Internet Archive has a well-established and standard procedure for rights holders to submit take down requests and processes them expeditiously?” the platform said. “We find several instances of take down requests submitted for one of the plaintiffs, Red Chillies Entertainments, throughout the past year, each of which were processed and responded to promptly. After a preliminary review, we find no instance of our having been contacted by anyone at all about these films. Is there a specific claim that someone posted these films to archive.org? If so, we’d be eager to address it directly with the claimant.”

Now, archive.org was not the only innocent site blocked by this order. Weebly.com, along with at least one news site and the site for a French ISP also had their sites blocked. Still, this damage appears to be mostly met with indifferent shrugs by the Indian government and the film studios that issued this request.

So, for India, we have an answer to the question of how many innocent sites it's willing to harm to combat copyright infringement. That answer, by our litmus test, is "too many."

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Posted on Techdirt - 17 August 2017 @ 6:58pm

As HBO Screams About GoT Episodes Leaking From A Hack, HBO Leaks Next GoT Episode Early

from the fine-everything's-fine dept

I love HBO's Game Of Thrones. I hate everything we have to write about it, however, because the stories are typically dumb in the usual ways that stories are dumb here at Techdirt. From HBO happily playing the evil villain in protecting the show's IP in the most overly-protectionist manner possible, to HBO screaming about the show being heavily pirated while everyone else comments about how good a thing that actually is, all the way up to the occasional overt hacking that occurs, where episodes from the show leak early, everybody freaks out, and then HBO and GoT go on to rake in tons of eyeballs and money anyway. One of these hacks just occurred, as you may know, resulting in a ransom not being paid to the hackers, who were then eventually arrested. While episode four of the current season did indeed get leaked, it wasn't the hackers who leaked it, but someone at an HBO distribution partner. So HBO screams about hacks while someone with in its own house is leaking episodes.

And now it just appears to have happened again. Episode six has now leaked out and fingers are being pointed at the Spanish division of HBO itself for the leak.

Trouble continues for HBO as another episode of the popular Game of Thrones series has just leaked online, days ahead of the official premiere. Copies of the sixth episode of the current season, titled ‘Death is the Enemy,’ are currently circulating on various streaming portals, direct download, and torrent sites.

At the moment it’s not confirmed how the leak came about but some suggest that it was leaked by HBO itself in Spain. Several people have posted screenshots and videos that suggest it was made public by HBO unintentionally.

With no counter-narrative yet from HBO, which you'll recall loves to scream about hacks and piracy, the accidental leak from HBO is the only explanation on offer as of the time of this writing. And, look, mistakes like this happen. The point of this post isn't to point the finger and laugh at HBO for accidentally leaking an episode itself.

No, the point is that these leaks just don't matter. The show continues to rack up the same astounding viewership numbers, leaks and all. It's wildly successful. It has been spun off into board games and all manner of merchandise. It's to the point that nobody batted an eye when HBO refused to pay the hackers' ransom to not release the episodes early. There would be no point. Hell, when the first four episodes of season five of the show were leaked early, that season broke the show's viewership records.

So chill, HBO. Leaks from hackers, leaks from distributors, and leaks from your own offices aren't going to bring the piracy dragons to your doors to destroy your keep.

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Posted on Techdirt - 16 August 2017 @ 1:29pm

The MPAA Narrative About Piracy Flips To Danger From Pirate Sites Now That It Has Lost The Moral Argument

from the that-won't-work dept

For years, years, the MPAA's public fight against piracy has chiefly consisted of a moral argument against it. Proclamations of the end of movies, the downtrodden future of filmmakers, and claims about piracy being equatable to outright theft were the tools of a Hollywood lobbier that itself exhibited the most underhanded sort of tactics in its attempts to get the internet to stop being the internet. It seems facile to state that this moral argument failed to find any purchase with the public, as filesharing went mainstream anyway. The reasons for this should be rather obvious: the arguments the MPAA made and the dooms it foresaw for itself and its industry were provably false. File sharing and piracy are a thing, yet movies still make gobs of money, allowing the MPAA to pay its executives the sort of handsome sums reserved for successful agencies. Still, Hollywood kept to its talking points. Piracy is wrong. Morally wrong.

But it seems that even the MPAA is ready to concede that it has fully lost this argument with the public. The latest from those that worked for the MPAA appears to be that it now wants to switch narratives from a moral argument to one of public danger.

The MPAA's former VP of Worldwide Internet Enforcement says that the industry narrative on piracy is no longer based on trying to get people to act ethically. Hemanshu Nigam says the discussion today is based around the dangers that pirate sites can pose to those who visit them. Few listened before, will they listen now?

Hemanshu Nigam is a former federal prosecutor, ex-Chief Security Officer for News Corp and Fox Interactive Media, and former VP Worldwide Internet Enforcement at the MPAA. In an interview with Deadline this week, he spoke about alleged links between pirate sites and malware distributors. He also indicated that warning people about the dangers of pirate sites has become Hollywood’s latest anti-piracy strategy.

“The industry narrative has changed. When I was at the MPAA, we would tell people that stealing content is wrong and young people would say, yeah, whatever, you guys make a lot of money, too bad,” he told the publication. “It has gone from an ethical discussion to a dangerous one. Now, your parents’ bank account can be raided, your teenage daughter can be spied on in her bedroom and extorted with the footage, or your computer can be locked up along with everything in it and held for ransom.”

Now, while Nigam works for the DCA (Digital Citizens Alliance), and the DCA is in part funded by the MPAA, it's worth carefully examining his and the MPAA's stance here to see whether this tactic will be any more effective than the previous moral argument. I think it's likely to fail, for several reasons. The first, as the TorrentFreak post points out, is that those that pirate content are consumers in the business sense. They are a form of customer for the sites that offer this sort of pirated content and they have all the same whims and wills of any paying customer. In other words, a site that lures the public in with pirated content for the purpose of deploying malware to them isn't going to keep its traffic for long.

In the Deadline piece, however, Nigam alleges that hackers have previously reached out to pirate websites offering $200 to $5000 per day “depending on the size of the pirate website” to have the site infect users with malware. If true, that’s a serious situation and people who would ordinarily use ‘pirate’ sites would definitely appreciate the details. For example, to which sites did hackers make this offer and, crucially, which sites turned down the offer and which ones accepted?

It's important to remember that pirates are just another type of consumer and they would boycott sites in a heartbeat if they discovered they'd been paid to infect them with malware. But, as usual, the claims are extremely light in detail. Instead, there's simply a blanket warning to stay away from all unauthorized sites, which isn't particularly helpful.

These sorts of blanket statements to stamp out piracy generally have the ring of a scare tactic for these reasons. Still, scare tactics can certainly work. Will this one? Again, I think not, due to a point we made earlier: file sharing is now mainstream. How many readers of Nigam's interview will be able to easily say that the doom he's warning them of hasn't happened to them as they've engaged in file sharing? The number is going to be quite large, it stands to reason. Rather than the scare tactic working, then, this will come off more like a Reefer Madness for piracy, an analogy everyone from TorrentFreak to the author of the Deadline interview seems to be making. If that happens, the DCA and MPAA take yet another hit to their credibility. There is even evidence that the public generally isn't listening to this latest argument of danger and those that are, are not particularly impressed.

Earlier this year the DCA launched a video campaign, enrolling 15 attorney generals to publish their own anti-piracy PSAs on YouTube. Thus far, interest has been minimal, to say the least. At the time of writing the 15 PSAs have 3,986 views in total, with 2,441 of those contributed by a single video contributed by Wisconsin Attorney General Brad Schimel. Despite the relative success, even that got slammed with 2 upvotes and 127 downvotes.

A few of the other videos have a couple of hundred views each but more than half have less than 70. Perhaps most worryingly for the DCA, apart from the Schimel PSA, none have any upvotes at all, only down. It’s unclear who the viewers were but it seems reasonable to conclude they weren’t entertained.

Not a great start for this narrative shift, to be sure. The public is steadily becoming more educated on the dangers of malware and viruses, as well as the proper security strategies for their electronic devices. Because of that, vague doomsayers warning of the digital apocalypse stemming from file sharing sites that have only become more popular aren't likely to find a great deal of fertile ground for their efforts.

On a related note, is all of this really easier and more effective than simply coming up with better ways to make money in the digital economy?

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Posted on Techdirt - 15 August 2017 @ 3:33pm

One Twitter Account's Mission To Make White Supremacists Very, Very Famous

from the should-have-worn-your-hoods dept

After the ugly stain that was this past weekend, when a group of "protestors" took to the streets of Charlottesville to "protest" the removal of a statue commemorating some loser who lost a war because he was a loser, there has been an unfortunate strain of calls to crack down on speech rights of these imbeciles. It's exactly the wrong sort of reaction for a number of reasons, not the least of which is that starting down the road to relieving the rights to speech you don't like today can come back and bite you in your ass tomorrow. Our own Tim Cushing's take on how important it is to defend the speech rights of those we dislike the most is among the best I've read, but it focuses on the need to rally support for speech rights in the face of outrage. Left unsaid is at least one potential solution to the speech polution that occurrs when a bunch of race-obsessed jackwagons decide to throw a party: more speech and expression.

To see one example of this in action, we can take a look at a delightful Twitter account, @YesYoureRacist, and its mission to make the sort of people that publicly expose themselves as racist very, very famous.

The @YesYoureRacist account began tweeting pictures of demonstrators on Saturday, asking, "If you recognize any of the Nazis marching in #Charlottesville, send me their names/profiles and I'll make them famous."

It's been credited with outing a University of Nevada student, who acknowledges attending a rally in Charlottesville Friday night but maintains he is not a racist.

That student, of course, then went on to say that he was only attending the rally to preserve a statue of Robert E. Lee because he believes "the replacement of the statue will be the slow replacement of white heritage within the United States", which, you know... racist. If you've seen the now famous photos of the white supremacists marching, this student is the one you've seen screaming while wild-eyed. That's notable for a very specific reason: the people at these types of rallies used to wear hoods over their heads. And for good reason, as they didn't want the wider public to be able to identify them alongside their detestable beliefs.

But not so in Charlottesville. Instead, the ralliers marched with their faces in full view of the public, allowing the man behind @YesYoureRacist to retweet the photos to his thousands of followers, identify them by name, find out where they go to school and/or work, and then contact those places to inform them they have a racist in their midst thus allowing them to take action if they choose. None of this, by the way, should be confused with doxxing, the process by which jerks on Twitter detail personal information from those that are trying to keep personal information secret. No, these protesters marched proudly in public, splashing their easily-identifiable faces all over the newswire. @YesYoureRacist, through speech and expression, is now simply making them even more famous.

This isn't to say that all of this will go on without a hitch. It won't. Already there have been mistakes made in identifying some involved in the white supremacist marches. One man was misidentified when followers of @YesYoureRacist decided that passing resemblances without any further checking were enough to vilify a man who was not at the rally, is not a white supremacist, and in fact runs a laboratory dedicated to helping people. Because extremism is everywhere these days, this man was threatened to the point of his deciding his home was no longer safe.

But that is a failure of a good idea gone too far, not of the idea of supercharging the fame of horrible people itself being bad. What is needed there is better speech and sleuthing, not an end to it. Free speech and expression gets the messiest in these sorts of endeavors, after all, and those mistakes don't nullify the overall good being done. As Ken "Popehat" White points out in a useful tweetstorm more speech is good, but so is a careful and proportional response:

Oh, and also this:

Now, if those currently calling for limiting the speech rights of white supremacists and Nazis had their way, how many less faces would we have in the photos of people that outed themselves? Far, far less, obviously. As I've always said, a big part of the reason I defend the rights of racists to be racists is because I want the racists to reveal themselves. And then folks like @YesYoureRacist can go about making them famous.

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Posted on Techdirt - 11 August 2017 @ 3:56pm

Paris Olympic Committee To Consider eSports For 2024

from the estadiums-are-cheap-at-least dept

While eSports, or competitive video gaming, has now been a thing for some time, it's rather swift rise in stature is still sprinting past milestones. Once a hobby sport relegated primarily to a few countries in Asia, eSports has since seen its inclusion in college athletics, in coverage on ESPN, and into the business models for real-life major sports leagues. If you were tracking what would be the next natural progression on the eSports legitimacy map, you wouldn't be surprised that the latest milestone reached is the consideration for making eSports a medal event in the Paris Olympic games scheduled for 2024.

The Paris Olympic bid committee will consider esports for inclusion as a medal event in the 2024 Olympic Games, according to Tony Estanguet, the committee’s co-president. Estanguet told the Associated Press that talks have been scheduled with the International Olympic Committee and with esports representatives “to better understand what the process is and why it is such a success.”

Estanguet also had some thoughts for esports skeptics out there: “We have to look at it because we can’t say, ‘It’s not us. It’s not about Olympics.’ The youth, yes they are interested in esport and this kind of thing. Let’s look at it. Let’s meet them. Let’s try if we can find some bridges.”

If you might be thinking that this consideration will meet the same swift death past niche competitions have met at Mount Olympics -- competitive poker for instance -- it's worth noting that the distinction here is the medal event, not the inclusion in Olympic games generally. The Rio games already showcased eSports competitions as exhibition matches and Asia's Olympic Council has already included medal events for eSports in the 2022 Asian Games. It seems whatever fortifications have been built against eSports gaining entry to the Olympic castle have already been splintered, making eSports' inclusion in 2024 all the more possible.

Still, we'll have to wait to find out the verdict on this one.

The Paris Olympics 2024 program will be finalized after the 2020 Tokyo Olympics, so the committee will have years to consider the question and take note of the reception to these showcase competitions.

“There is some time to look at it, to interact, to engage,” said Estanguet. “The IOC will have the last say, if they want esports on the program.”

I for one am greatly looking forward to the great fustercluck that will be the IOC's enforcement of its claimed intellectual property rights over the broadcasting of competitions using copyrighted and trademarked gaming content specifically to a fanbase that, by its nature, knows how to use technology to subvert both. Should be fun.

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Posted on Techdirt - 11 August 2017 @ 9:33am

London Mayor Fingers The Culprit In Increased Knife Crime: YouTube

from the mmm-no dept

With only minimal media fanfare, violent crime is on the rise in London. There have been many explanations on offer for this, ranging from the refugee migrant crisis to drastic cuts to funding for youth services. Specifically noteworthy is the upward trend in knife violence, which, we will note, began before the Middle East refugee crisis, but has accelerated since. Knife attacks have risen not only in what could be called "terrorist" incidents involving Islamic extremists, but also in the more banal gang-related type of incidents as well. As experts search for the real cause and solution to all of this, however, London Mayor Sadiq Khan insists he has found the real enemy in all of this: YouTube.

London mayor Sadiq Khan has criticised Google’s YouTube after it failed to take down four violent gang videos describing killing methods and threatening rivals, which were flagged by police. The videos reportedly show gang members waving a large Rambo-style knife as they attempt to goad rivals. The videos have been watched more than 356,000 times and have not been removed despite YouTube’s terms saying it takes “threats, harassment, intimidation (and) inciting others to commit violent acts” seriously.

“Google, YouTube and other platforms have a responsibility to the millions of young people using their sites every day, and it is vital that they toughen up their guidelines, remove breaches immediately and work with partners to help ensure such horrific videos do not reappear. Lives could depend on it,” said Khan. “Social media and the internet can be used to inflame tensions and escalate violence quicker than ever before, and these videos are a shocking example of the glamorisation of gang culture.”

It will never cease to amaze me how many people can look at a complex social problem with all sorts of subtle causes and influences... only to turn around and find an easy scapegoat in technology. Specifically the internet. London has endured a 24% rise in knife crime and His Honor is going to war with YouTube over four whole videos. In the first link in the introduction above, the New York Times interviews youths now carrying knives, typically found in their kitchen drawers, and provides a fairly good explanation of why these youths are arming themselves in the street. Absent from the prose of that article as any mention of teens slipping blades in their pockets because a YouTube video told them so.

It's also worth noting that these videos make for great evidence for convicting bad actors when they actually do carry out attacks.

Similar violent videos helped convict four men for the murder of 18-year-old Marcel Addai in September 2015, and have been used in other successful prosecutions.

Now, YouTube has reviewed the specific videos in question and has decided to leave them up, while also noting that it is committed to working with police to take down true violent content. The problem in all of this is that there is a fuzzy line drawn between valid expression and an actual threat. If I wanted to, I could twist all kinds of content on YouTube and claim it represented real violent threats, from political expression to drill rap videos that often feature weapons to dramatic expressions. What YouTube typically requires is verified context that a threat made in a video is both specific and real before taking it down. It has deemed these videos not to cross that line.

“We work closely with organisations like the Metropolitan police to understand local context and specifically, so that we can understand where artistic expression escalates into real threats. We’re committed to continuing and improving our work on this issue and making YouTube a hostile space for those who seek to do harm.”

Which is as it should be, no matter the London Mayor that wishes to scapegoat the internet while too many of his own citizens bleed in his own streets.

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Posted on Techdirt - 9 August 2017 @ 6:50pm

North Carolina Passes An Entirely Misguided Restore Campus Free Speech Act

from the speech-is-speech dept

You will recall that we were just discussing a proposed law in Wisconsin that sought to do a number of things on college campuses, including limit the ability to protest and shout down controversial speakers, as well as mandating quite insanely that school administrations must "remain neutral" on the "controversial" topics of the day. It's a source of frustration for me that it's not immediately clear how bad an idea this is for any number of reasons. My two chief complaints about the law, built upon a legislative proposal from the Goldwater Institute, are how broad a range of topics this could conceivably cover and how it quite plainly seeks to favor one form of speech over another. Put simply, giving state governments oversight about which topics a university administration is allowed to opine while also mandating punishments for students who protest to shout down speakers is about as anti-free speech as it gets, even as the proponents of the legislation attempt to shroud themselves in that most sacred of American ideals.

Well, North Carolina also had a similar bill under consideration, and indeed the state went ahead and passed its Restore Campus Free Speech Act. When you travel to that National Review link and/or read the pull quotes below, keep in mind that these are the words of a supporter of the bill and someone, Stanley Kurtz, who worked on the original Goldwater proposal.

The North Carolina Restore Campus Free Speech Act achieves most of what the Goldwater proposal sets out to do. It ensures that University of North Carolina policy will strongly affirm the importance of free expression. It prevents administrators from disinviting speakers whom members of the campus community wish to hear from. It establishes a system of disciplinary sanctions for students and anyone else who interferes with the free-speech rights of others, and ensures that students will be informed of those sanctions at freshman orientation. It reaffirms the principle that universities, at the official institutional level, ought to remain neutral on issues of public controversy to encourage the widest possible range of opinion and dialogue within the university itself. And it authorizes a special committee created by the Board of Regents to issue a yearly report to the public, the regents, the governor, and the legislature on the administrative handling of free-speech issues.

It all sounds so reasonable until you actually think about the implications of the law. Let's address them in order.

To start, requiring a university to affirm the importance of free expression is the kind of pablum born from trying to establish that there is a problem where one doesn't actually exist. Does anyone imagine that polling the nation's universities on this question would result in some schools saying, "Meh, free expression isn't that big a deal"? Come on.

As for disinviting speakers that "members of the campus wish to hear from", let's talk about that. First, how many members of campus are we talking about? And how are we to gauge their interest? If some tiny college group wants to invite a controversial speaker to campus to speak, where 90% of the campus doesn't want them anywhere near the campus, the administration is simply supposed to keep its hands tied? Or are the numbers something different? All of this is unclear in the law, even as it happily neuters a school's ability to manage its own campus. Why is a state legislature a better arbiter of who belongs on campus than the school itself?

Then there are the disciplinary sanctions on students that "interfere with the free-speech rights of others". This is the really silly part, because it seeks to scholastically criminalize speech in order to protect speech. The proponents of this law will want to say that this refers to students rioting, or accosting would-be invited speakers, but there are already laws on the books to prosecute those crimes. Instead, this law seeks to punish students that attempt to shut down speaking engagements via peaceful protest, which is a form of speech. The law originally required mandatory suspension from school for students who are found to have violated the law twice. The universities beat that back and had it struck, but the proponents of the bill aren't even pretending that they aren't trying to stop anything other than the speech of students, while also detailing how its newly-created committee reports will be used to simply toss out adminstrators lovers of the law don't like.

Without the mandatory suspension for a second offense, the university could conceivably undermine the law through lax enforcement. Yet it’s not as simple as that. If the university refuses to discipline shout-downs in the wake of passage of this law, there will be consequences. For one thing, the annual report of the Board of Governors will either condemn the refusal to discipline, or the committee will itself be subject to public criticism. A negative report on the administrative handling of discipline would give the Board of Regents a reason to replace administrators, and legislators a reason to cut university funds.

Punishing "shout-downs"? That's a pretty bald-faced acknowledgement that this bill will curb the free speech of students in favor of the free speech of invited speakers. In other words, this bill cuts in only one direction: students that are paying to attend school now have less speech rights than guests invited onto the campus. If that doesn't immediately demonstrate how flatly gross this bill is, you need to recalibrate your sensors.

Look, I said this in the last post, but I'll say it again: anyone that wants to say that campuses today are not as open to outside or unpopular viewpoints as they once were or should be won't get anything other than agreement for me. I tend to think the problem is overstated in certain circles, but I do agree that campuses today are generally less open-minded than they should be. But the solution to that is to win the argument via speech, not to run crying to state legislatures to simply curb the speech of others.

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Posted on Techdirt - 7 August 2017 @ 7:41pm

NY Mets Oppose Trademark For Medical Exam Tracking System (METS) Claiming Potential Customer Confusion

from the swing-and-a-miss dept

Look, dear reader, I live in the real world. I see a great many people genuinely confused about a great many things that shouldn't be confusing, so I'm aware of how many morons in a hurry occupy this planet. Still, I'm struggling to imagine anyone being confused by the trademark application currently being opposed by the New York Mets baseball team.

Comprehensive Health Services, a source for workforce medical services, registered a “METS” trademark for its proprietary Medical Exam Tracking System, trademark records show. The Cape Canaveral-based METS, according to the trademark application, provides “online non-downloadable cloud-based and client-server software for generating, managing and exchanging medical information.”

The Flushing, NY, Mets, in a notice of opposition filed with the US Patent and Trademark Office on July 24, are objecting to the award of the trademark to the Florida outfit. The baseball Mets claim both companies are practically in the same business and the public could be confused.

The "practically in the same business" claim rests on the Mets noting that the team provides "online non-downloadable software online for the purpose of facilitating organization of information about baseball games, events and venues." Practically in the same business appears to be a gross exaggeration on par with my claim that I am the beacon of sexual charisma for North America. I'm trying to picture the reaction of the person examining this opposition, hoping they had the same mind-halting moment at reading this.

The only other claims in the opposition appear to rest on the fact that the Mets have held their own trademark for half a century and yet another strange claim that the logos for both companies would be confusing, because apparently the public can't differentiate between the New York City skyline and a heart rate monitor line.

Apparently that’s enough for the MLB team, whose logo includes a backdrop of Gotham’s skyline, to take further issue with a METS’ mark that depicts what its application calls a “stylized heart rate line.”

Here's the proposed logo. Try not to go into a blithering stupor over your own confusion.


This is normally where I'd come up with an arguably witty retort to how silly this all is, but I shouldn't have to. This opposition by the New York Mets is bonkers.

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Posted on Techdirt - 4 August 2017 @ 1:36pm

Def Leppard Claims Music Piracy Is Bringing Younger Audiences To Its Concerts

from the rock-for-all-the-ages dept

The last time we checked in with 80's rock band Def Leppard, the band was busy "forging" its own songs as a way to release its own back catalog without having its label cash in off of it. So bad was the relationship with Universal Music, apparently, that re-recording all of that music was the better option compared with having to deal with the label. So, one might wonder how the band views illicit music downloads then, amidst its anger at its label for not paying them properly.

Well, it turns out that Def Leppard thinks music piracy is making them a killing in concert revenue.

In an interview with Ultimate Classic Rock, Def Leppard guitarist Vivian Campbell has been describing why he believes piracy has its upsides, particularly for enduring bands that are still trying to broaden their horizons.

“The way the band works is quite extraordinary. In recent years, we’ve been really fortunate that we’ve seen this new surge in our popularity. For the most part, that’s fueled by younger people coming to the shows,” Campbell said. “We’ve been seeing it for the last 10, 12 or 15 years, you’d notice younger kids in the audience, but especially in the last couple of years, it’s grown exponentially. I really do believe that this is the upside of music piracy.”

What's useful about Def Leppard's stance on this is that the band cuts around all of the usual pushback from copyright defenders. The band is not "just a startup with nothing to lose from piracy"; they're a household name. The band is also not "simply a bunch of has-beens trying to eek out a few more years of meager revenue"; their popularity is surging. Campbell's stance is also not simply one-sided in the belief that younger fans getting free music brings in the concert revenue. He also believes these new, young fans make the bands music better.

“There’s a whole new energy around Leppard, in fact. I think we’re playing better than we ever have. Which you’d like to think anyway. They always say that musicians, unlike athletes, you’re supposed to get better. I’m not sure that anyone other than the band really notices, but I notice it and I know that the other guys do too. When I play ‘Rock of Ages’ for the 3,000,000 time, it’s not the song that excites me, it’s the energy from the audience. That’s what really lifts our performance. When you’ve got a more youthful audience coming to your shows, it only goes in one direction,” he concludes.

This is the part of music obtained freely that never gets mentioned: the multiplier effect it has on a bands relevance and longevity. This isn't to say that such a model works for every band in every instance, but it's refreshing to see an artist step back and try to get the full picture of what's really going on here. It would be quite easy for someone like Campbell to see the young faces in his audience and never give a second thought to how those younger fans got to a Def Leppard concert. By taking an intelligent look at that question, however, Campbell has reached a place where he's found a friend where he might have seen an enemy.

The band is also very active on YouTube, even as the site has recently become a chief target of the music industry as a source of evil, evil piracy.

One only has to visit Def Leppard’s official YouTube channel to see that despite being born in the late fifties and early sixties, the band are still regularly posting new content to keep fans up to date. So, given the consumption habits of young people these days, YouTube seems a more likely driver of new fans than torrents, for example.

The band's embrace of the internet as a tool for generating interest and revenue isn't merely passive, in other words. The band that made its name decades ago is using today's tools to actively cultivate a new audience, which then shows up at the concerts, bringing in ticket revenue and revenue from merchandise. All, again, as the band is re-energized for its own on-stage performances. It's difficult to find the downside for the band in any of this, perhaps because one does not exist.

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Posted on Techdirt - 3 August 2017 @ 6:39am

Canadian Man Somehow Gets Trademark On His Own County's Name, Govt. Says Legal Action Is The Only Remedy

from the you-pay-for-our-mistakes dept

It's stunning how often trademarks that never should have been granted get granted -- leading to all sorts of bad outcomes. One area that sees far too many bad trademarks involves trademarking geographic areas, with the holder of the mark often then trying to lock out local businesses from using the name of the locations in which they reside. If ever there were a trademark type that everyone ought to agree should be rejected, it's one based purely on geography.

Entirely too many of these slip through. For example, one Canadian man managed to get a trademark on the name of the county in which he resides, with the stated aim not of using it in commerce, but rather protecting that name's reputation.

Michael Stinson caused a stir among government officials in Haliburton County last week when they learned he had successfully trademarked the name Haliburton. Stinson says he never intended to deceive or harm anyone, and explains that he trademarked the name so others couldn’t “tarnish” the name of the community.

Now, the Canadian government's site is pretty clear in stating that this sort of geographic trademark is flatly not allowed, but somehow Stinson got it through anyway. Way to go, Ministry of Innovation, Science and Economic Development. As for Stinson, his claim for why he applied for the trademark is neither the purpose of trademarks generally nor is it apparently the actual reason why he got this specific trademark.

Haliburton County’s chief administrative officer, Mike Rutter, says he’s not sure how the trademark could have been allowed. Rutter says he first became aware of the issue when the county’s chamber of commerce started receiving complaints.

“We received a call from our local chamber of commerce that Mr. Stinson was attending businesses and advising people that they would owe him money if they were using the name Haliburton,” Rutter says.

If true, this would seem to me that Stinson is a bully, attempting to extort local businesses with a trademark that never should have been approved by the Canadian government. This is the damage that can be done by trademark offices not following their own damned rules and not adhering to the purpose of trademark laws to begin with. Stinson appears to be rather slimy, but it's worth focusing on the fact that he couldn't be doing any of this is had the Canadian trademark office bothered to do its damned job.

With that in mind, you're probably thinking that the Ministry would simply recognize its mistake, invalidate the trademark, and everyone except Stinson can go on their merry way. Noooooope.

Haliburton Coun. Murray Fearrey says he contacted the federal department that handles trademark issues and was told the only option to resolve the matter would be for the county to take legal action.

“I'm upset that we would even have to even think about spending taxpayer dollars on something that should never have happened, as a result of some civil servant making a mistake,” says Fearrey. “I can't believe there isn't a political process (instead), because if you pass legislation there's always a way to amend it or rescind it.”

So a federal department funded by taxpayers shits the bed in doing its job and then informs a local government that more tax money must be wasted to fix it? That's plainly revolting. Nearly as revolting as Stinson's goals for turning the county and his trademark into a money-making machine.

Stinson says, however, that while he’s approached some local businesses about his trademark, he hasn’t received any fees so far. He says he hopes to work with local officials on the matter and wants to make Haliburton “a big brand name with the co-operation of the county.”

“I’m optimistic that we can all meet and discuss these issues at hand in a timely matter, whether it’s the county of Haliburton, our MP, and our chamber of commerce,” he says.

Fortunately, county officials have stated that they are interested in only one outcome from this whole fiasco: the invalidation of Stinson's trademark entirely. Nobody should be able to hold businesses hostage with a trademark like this and heads ought to be rolling in the Canadian trademark offices for any of this happening to begin with.

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Posted on Techdirt - 2 August 2017 @ 6:40pm

Would You Confuse 'Pierogi Fest' With 'Edwardsville Pierogi Festival'? Neither Would We

from the hot-potato dept

You write about enough trademark disputes and you come across some real whoppers. And, man, have I seen some doozies. Still, I never stop being suprised by how silly these things can get. Today's example of this revolves around the Chamber of Commerce for Whiting, Indiana sending out trademark threat letters to the Edwardsville Hometown Committee in Pennsylvania over the latter's 'Edwardsville Pierogi Festival.

Lawyers for the Whiting Pierogi Fest in Whiting, Indiana, recently sent a letter to the nonprofit Edwardsville Hometown Committee demanding it stop using the trademarked name or pay royalties for its use.

They claim the usage leads to “unfair competition” and “is likely to cause consumer confusion.”

Two separate letters were sent to this effect, actually, both making the claim that consumers would be confused between a suburban Chicago "Pierogi Fest" and the "Edwardsville Pierogi Festival." These claims rest on the Chamber's federally registered trademark for "Pierogi Fest", which is itself a laughably broad and almost perfectly descriptive phrase, causing me to wonder how the USPTO approved the mark to begin with. That aside, it should be obvious that any fears for consumer confusion between two geographically distinct (678 miles!) pierogi festivals would make Chicken Little roll his eyes. And it's worth mentioning that both of these threat letters included offers to license the trademark for money, as well.

Well, the Edwardsville Hometown Committee declined to license the phrase and has instead filed suit for declaratory relief. In that filing, the Committee reveals that it was not the only recipient of the Chamber's threat letters.

25. The Hometown Committee has both existing contractual relationships with the sponsors of the Edwardsvilie Pierogi Festival and potential contractual relationships with additional sponsors for upcoming Edwardsville Pierogi Festivals. 26. By sending correspondence to sponsors of the Edwardsville Pierogi Festival threatening them with liability for trademark infringement, the Chamber has purposefully and intentionally sought to harm the relationship of the Hometown Committee with its existing sponsors and to prevent prospective relationships between the Hometown Committee and future sponsors of the Edwardsville Pierogi Festival.

So the Chamber sent threats to the sponsors of the Committee's Pierogi Festival as well. Not a good look when we're talking about a trademark as broad and descriptive as "Pierogi Fest", particularly when there are lots of other festivals using that same name already. I'm not sure if the Chamber thinks it has a great licensing opportunity with all of the pierogi festivals out there or not, but it's certainly not doing a great job of protecting the trademark it never should have been granted.

I imagine Whiting's Chamber of Commerce actually never expected to find itself in court, figuring Edwardsville would simply bow to its demands and license the mark. Hopefully the court will see fit to take this case to its proper end and invalidate the "Pierogi Fest" trademark entirely.

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Posted on Techdirt - 2 August 2017 @ 10:46am

NCAA Strips UCF Kicker Of Eligibility After He Refuses To Stop Being An Athlete That Posts YouTube Videos

from the nice-speech-you-have-there... dept

You may recall that several months ago, we discussed Donald de la Haye, kicker for UCF and a very good YouTube personality to boot. After racking up thousands of subscribers and millions of views at his YouTube channel, where de la Haye discusses all manner of things, including his football career, the NCAA came a-calling. The organization first informed him that he would have to shutter his channel completely, arguing that the advertising revenue it generated violated NCAA rules, which are designed to make sure that all student athlete activity that generates revenue does so only in the direction of the NCAA. Then, after the backlash, the NCAA reportedly offered to let de la Haye keep his YouTube channel, but only if he agreed to essentially never reference who he is or what one of his primary life activities is: football. It was a deal devoid of sense, as his football playing career is among the primary motivators for people to check his channel out to begin with. It's also a strange stance coming from an organization purportedly in the business of supporting student athletes as they become full-fledged adults, limiting his creative expression over a concern of YouTube revenue from his own fans.

Because of that, de la Haye refused the deal. As a result, the NCAA has announced that de la Haye is no longer eligible for the upcoming football season.

De La Haye has been ruled ineligible for the upcoming college football season, according to the NCAA. De La Haye had an opportunity to make a deal with the NCAA that would limit his creative output, but he declined it. De La Haye did not respond to our request for comment, instead tweeting that he’s “mind blown” and passing along the following message:

Here's the tweet.


Now, the NCAA apologists have already started making noise about how the NCAA was upfront with de la Haye about all of this and only asked that he not take advertising revenue or not discuss his football career. And it appears that both claims are absolutely true. Many, because of that, are falling into the trap of thinking that this was somehow an acceptable deal for de la Haye to take, or for the NCAA to offer in the first place. It is neither of those things.

The NCAA is a money-making machine. Full stop. As a money-making machine in league with higher learning institutions of grown men and women, to baldly offer to allow creative expression of a student athlete if and only if it can control that student's message and expression is insane. We're not talking about de la Haye getting endorsements or signing merchandise, or any of the other examples of things that might threaten his status as an amateur athlete that happens to contribute to the NCAA making millions of dollars. Instead, we're talking about a purely creative output published directly to fans of de la Haye. Censoring it and threatening his educational career in the name of college sports revenue is disgusting.

Fear not, because the days of the NCAA are numbered. Still, the damage it can do in the early stages of its death throes is gross.

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Posted on Techdirt - 31 July 2017 @ 6:36pm

MLB Comes To Its Senses And Declines To Oppose Overwatch League Trademark

from the intentional-walk dept

We recently discussed how Major League Baseball had asked for an extension with the USPTO so its legal staff could decide whether it wanted to oppose a trademark application for eSport organization Overwatch League's new logo. The request was more than a little head-scratching for a variety of reasons. As we pointed out in that post, the two logos aren't particularly similar and certainty don't appear to give ground to any confusion among the public about any affiliation between the leagues.

Different color schemes, different fonts, and clearly identified names of the league on each logo didn't give MLB much ammo for a trademark opposition. Add to that the plethora of sporting league logos done in a similar style that actually do use the same color scheme, yet don't face aggression from MLB, and it raises the eyebrow as to why MLB's lawyers wanted to even go so far as to ask for an extension over any of this.

Well, it seems that either MLB's lawyers are Techdirt readers or they simply came to their senses (I choose to believe it's the former), because the time to file an opposition has come and gone with no action taken on MLB's side.

Major League Baseball has decided not to oppose Blizzard Entertainment’s OverwatchLeague trademark filing, per law firm Morrison / Lee. As part of the OWL’s trademark review process via the Trademark Trial and Appeal Board, organizations have the opportunity to oppose trademarks—and earlier this month, the MLB was reportedly preparing a challenge, along with a request for a 90 day extension.

The deadline to file the challenge and extension, July 26, has now come and gone without issue. OWL’s trademark is presumably in place, and while it could still be challenged as a trademark infringement down the road, such a challenge is unlikely given the lack of current filing.

While MLB has been happy in the past to be the bully on trademark issues, it seems it decided even this one was too silly to take on. That doesn't feel like it deserves applause as much as brief sigh of relief at one less dumb trademark issue I'd have to write about.

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Posted on Techdirt - 28 July 2017 @ 3:40pm

Cigar City Brewing Sues Cigar City Salsa Over Trademark Despite Being In Different Marketplaces

from the salsa-beer-isn't-a-thing dept

I'm generally not much for the summer season, but one sensation I do love is getting home from work on a painfully hot day, having just purchased a six-pack of beer, and cracking open a cold one in the evening. The only thing that occasionally gets in the way of that is when I lift the bottle to my mouth and then immediately realize that instead of beer, I bought salsa.

Wait, that doesn't ever happen. And, yet, according to a lawsuit brought by Cigar City Brewing against Cigar City Smoked Salsa, customer confusion appears to be a chief concern.

Cigar City Brewing is suing Cigar City Smoked Salsa for trademark infringement, alleging that the labels and marks used by the salsa maker are so similar to the brewery’s material that consumers may think both products come from the same company.

Fine, so the suit doesn't so much allege that customers are going to confuse salsa and beer, but rather that the same company might be making both of them. The filing itself claims that there have been instances of actual confusion with the public and purchasing agents for stores that thought both products were made by the same company. That, frankly, is difficult to believe. It's all the more difficult to believe that this occurs on a large scale, for multiple reasons.

To start, Cigar City is a common moniker for Tampa, Florida. It's a nod to the large Cuban population there. As such, there are all manner of businesses that incorporate the nickname into their business names. Types of businesses include gyms, music management, cattle farming, comedy clubs, and so on. It's not a terribly good identifier of source for that geographic area, in other words.

To get around this, the filing goes to some lengths to try to suggest that beer and salsa are in fact in the same markets by virtue both that the items are sold in the same stores and, incredibly, that the public sometimes likes to have a beer and eat chips at the same time.

Plaintiff’s beers and Defendant’s salsa are sold in the same channels of trade, including grocery stores, and liquor stores. For example, both parties’ products are sold in Publix Supermarkets, Walmart stores and ABC liquor stores, among others (Exhibits 13, 14, 15 and 16). Beer and salsa, typically with snack chips, or with salsa on or in entrees, are frequently consumed together by the same persons and are thus purchased by the same types of consumers.

Except that isn't how markets are defined in trademark law. Instead, belligerents must be in direct competition with each other in their products for the markets to be a match, and salsa is not beer. They are closer in terms of the marketplace than, say, Cigar City Crossfit, but I imagine that beef sourced form Cigar City Cattle Company may well be sold in those same stores, yet there is not trademark action against them. So far, in summary, we have a common nickname used by two businesses in disparate industries.

Now, the filing goes on to note that Cigar City Brewing is opposing the trademark registration for Cigar City Smoked Salsa, but that this opposition is pending. So this suit was filed before the USPTO has even had a chance to weigh in on the matter, which seems like a mistake. If nothing else, the ruling on the opposition would provide Cigar City Brewing with either more ammunition for its lawsuit, or, if defeated, an indication that it probably shouldn't file the suit to begin with. And the outcome of that opposition isn't exactly an assured slam dunk for Cigar City Brewing, as its own Exhibits in this lawsuit comparing the trade dress are of questionable use. First is the labels on the salsa that Cigar City Brewing repeatedly objects to as infringing and confusing.


And here is Cigar City Brewing's own logo. For what it's worth, they have several iterations of this and I chose the one most favorable to Cigar City Brewing's position.


I'm certain the brewery is trying to make a point complaining about the two logos, although what that point could possibly be is beyond me. Beyond both being black and white images, little else about the two logos has anything to do with the other. Frankly, the filing is full of exhibits like this, pretty much all of which offer nothing more compelling than this side by side comparison. I just cannot believe anyone in the grocery or liquor business is seriously confused by any of this.

So, a common nickname used in different industries with trade dress that isn't similar while a trademark opposition is currently in process. Why in the world was this thing ever even filed?

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Posted on Techdirt - 28 July 2017 @ 6:27am

How Arby's Dealt With Their Greatest Twitter Troll By Being Awesome; Also Sandwiches And Puppies

from the thumbs-up dept

There are many ways to handle being trolled on Twitter if you're a company or a famous person. You can track down the trolls, investing hundreds of hours all for a payoff that amounts to showing up at their house physically and making them uncomfortable. You can figure out who the trolls are and call their parents, because that's apparently a thing that actually happened. Or you can be James Woods, completely the worst, and whip out the lawsuits to unmask the troll and then gloat gleefully like a three year old that stole his favorite popsicle when the guy happens to die.

Now, all of those methods for dealing with internet trolls range from mildly annoying to evil (James Woods), but they are obviously not the only options. You could go the Arby's route and simply be awesome and human and have fun with the whole thing. The fast food chain recently decided to have a little fun with its most famous Twitter troll: Nihilist Arby's. Now, if you're not familiar with Nihilist Arby's, it's a Twitter account with 300k followers and daily affirmations that include such advice as:


The entire feed is massively entertaining, but the man behind the account also released the following manifesto when news and advertising groups were trying to figure out who the hell was behind all of this.


Once that video went viral, the countdown clock to unmasking @nihilist_arbys had begun. Arby's, meanwhile, in the midst of being praised for its own hip social media activity in engaging with Jon Stewart when he retired and being cool with Pharrell Williams wearing a hat that was an accidental nod to its own logo, certainly noticed the account. The chain kept tabs on it without ever interacting with it directly or threatening any action against it, when suddenly Nihilist Arby's was unmasked as Brendan Kelly, who worked both in advertising and performed in punk rock bands.

Arby's CEO Paul Brown and his marketing team read the piece.

"We had discussions around what do we do with that? And we said, 'Well, one, even if we wanted to do something, we couldn't,'" Brown told Business Insider. "But we also had a little fun with him, too."

What did that fun amount to? Well, the company flew an executive to Chicago. That executive went to Kelly's place of business and asked security to inform him that Arby's had arrived to see him.

Six days after the Adweek story, Kelly was at FCB's offices in Chicago's John Hancock Center preparing to leave early for a secret job interview he'd landed as a result of that profile. Before he could leave, he got a call around 3:30 from the building's front desk letting him know that a team from Arby's was there to see him.

Christopher Fuller, Arby's senior vice president of communications, was there with several members of Arby's marketing team, a bag full of sandwiches, and a black Labrador puppy they had borrowed from a friend. They greeted Kelly and handed him a handwritten note on Arby's stationery: "Cheer up, buddy. You live in a world with puppies...and sandwiches."

Now, other companies and people should take notice, because this is how it's done. Dealing with trolls is annoying, even trolls as relatively benign as Nihilist Arby's. Still, companies and the people that run them have an understandable amount of pride, and being a tool for what must seem like a never ending joke can be uncomfortable, if not not damned infuriating. To their credit, the folks at Arby's decided to go the fun route instead, with an apparent eye towards just simply being human and awesome.

Brown and his leadership team discussed the Adweek profile. Brown said it could be difficult as a CEO to see your company be the subject of harsh jokes, but that the success of playfully sparring with Stewart earlier that year was a teaching moment.

"Do you write a cease-and-desist letter?" Brown said. "The way I look at it is what kind of person do you want to be a friend with? You don't want to be a friend with that kind of a person who's defensive and you can't joke around."

It's a refreshing attitude to see coming from a company as big as Arby's. Kelly, meanwhile, was super into the interaction and posted it to his own Twitter followers, which likely ingratiated the company to the public even more. Smart business, smart PR, all by being awesome and human instead of freaking out.

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Posted on Techdirt - 27 July 2017 @ 6:27pm

E And J Gallo Sends Cease And Desist Trademark Notice To E And B Beer

from the bullies-be-bullying dept

It's been a refreshing bit of time since we've last written about a silly trademark dispute in the beer and alcohol space, so perhaps you, the dear Techdirt reader, had thought that the complete fuster-cluck that is trademark and alcohol had somehow begun to calm the hell down. Sadly, not so much, it seems. To serve as one reminder, E & J Gallo, maker of wines and spirits and a company that has previously demonstrated its inability to tell different kinds of drinks apart, has sent a cease and desist notice to E & B Beer, a company that makes, you know, beer.

The case pits well known wine and liquor company E and J Gallo against E and B Beer. The owner of Eand B, Santo Landa, says he sees no similarity and feels like this is a case of a big company trying to stomp out the little guy.E and B Beer has been around since the late 1800s in Detroit. It's already been trademarked once before.

Since buying the brand, Landa applied for his own trademark but he's run into a roadblock. An attorney for E and J sent a legal notice saying similarities may cause confusion for customers.

So, let's start with the names of each company. It should be immediately clear that any concern about confusion between the two names is fairly silly. The only similarity between them is the "E and" at the start of each name. Everything else about the names is distinct, from the second initial used to the inclusion of another name (Gallo) and the other mark's description of what the product is (beer). Even if we set aside my personal quest to have the Trademark Office realize that beer, wine, and spirits are all distinct industries and should be treated as such for the purposes of trademark, there's little likelihood of confusion purely from the names of each business. Add to that the logos for each company are beyond distinct and it seems clear that confusion ain't going to be a thing.



None of each company's various iterations of their logos appear to be any more similar than the above. Other than the start of the name and both logos having red in them, there's just nothing there. Certainly not enough to rise to the level of trademark infringement. Which is probably why Landa himself can't figure out what the issue is and sees this as nothing more than a bullying attempt by a larger company.

"I'd like to get an explanation as to what they think is confusion," he says.

The most troubling thing for Landa? He insists he can win a legal fight, but not without big money - money he simply doesn't have.

Now, E and J Gallo apparently offered Landa the rights to keep his name, but only if he limited his sales to 2 states. If you think that's reasonable, you aren't paying attention, because there's nothing remotely like trademark infringement here and there is no reason for Landa to give up his right to sell anywhere at all, never mind limiting himself to 4% of the country's states.

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Posted on Techdirt - 27 July 2017 @ 1:22pm

Court Blocks Wisconsin Augmented Reality Permit Law From Being Enforced

from the augmented-legality dept

You will recall that earlier this year we discussed a lawsuit brought by the makers of a mobile augmented reality game entitled Texas Rope 'Em against the city of Milwaukee over an ordinance it had put in place requiring game developers to obtain a permit to function within the city. Aside from the $1,000 permit fee the ordinance put in place, the requirements to obtain the permit were both odious and laughably non-applicable to the makers of mobile games such as Texas Rope 'Em. Examples of these requirements include plans for garbage collection left by players, plans for on-site security to protect players, and estimates of "crowd sizes." For makers of augmented reality apps, none of these requirements make any sense. When the developer of the game, Candy Lab, cried foul over First Amendment concerns, Milwaukee County replied that the game maker is not entitled to First Amendment rights, arguing that the game wasn't expressive enough to warrant them.

Well, in the opening round of the legal action, Candy Lab is a heavy winner. The court has enjoined the city from enforcing the law until the outcome of the trial, while also including language in the order that makes it fairly clear where the court is going to rule on the First Amendment question.

Plaintiff has a reasonable likelihood of success on the merits of its claims under 28 U.S.C. § 1983 for violation of the First Amendment. Plaintiff will suffer irreparable harm if Defendants are permitted to enforce Section 47.03(3) of the Milwaukee County Code of General Ordinances, adopted in Resolution 16-637.

Now, the trial has been set for next Spring, but fortunately that timeline won't keep Candy Lab from doing its business in Milwaukee with the injunction now in place. Frankly, I'd be somewhat surprised if that trial ever occurs, given the courts clear indication that it sees the law as a First Amendment violation, or at least that Candy Lab is likely to win on the merits of that assertion.

Still, it's troubling that Milwaukee would have tried to put this lab into place to begin with. Frankly, where permitting schemes are often times revenue generators for municipalities, the requirements for the permit in this case seem almost perfectly designed to simply keep augmented reality apps out of the city entirely. Why? It's not like other cities in America, both larger and smaller than Milwaukee, have suffered significant headaches or damage as a result of the now panoply of AR games on the market.

And the claim that an AR game isn't speech-y enough to warrant free speech rights? That's just silly.

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Posted on Techdirt - 27 July 2017 @ 11:55am

Olive Garden Apologizes To Allofgarden.com, Blames IP Enforcement Bot For Legal Threat

from the mea-cappelini dept

You will hopefully recall the recent story we did on Darden, parent company of the Olive Garden restaurant chain, sending a legal threat letter to the man behind allofgarden.com, a site that reviews Olive Garden dishes, because the internet is a strange, strange place. At issues, according to the threat letter, was that allofgarden.com named Olive Garden in metatags in its reviews of the dishes, which you should already know is nothing remotely resembling trademark infringement or infringement upon any other types of intellectual property, either. With that in mind, Vincent Malone replied to the threat letter in a manner both well-informed of his own rights and one which demonstrated just how funny Malone is. After refusing to comply with the requests in the letter, he demanded a reply within nine days in limerick form.

His demands were not met exactly, but Darden has now responded to Malone, apologizing for the letter, promising no further action would be taken against him, blaming an IP enforcement bot for the letter, and sending him a $50 gift card. Sadly, none of this was delivered in the limerick form Malone had requested.


As apologies for this sort of thing go, this one is pretty good. It was apparently in further conversations outside of this letter that Malone was told of the bot, which may well be true but only demonstrates that too many companies play loose with the way they seek to enforce their rights. This story ends on a positive note only because Malone decided not to immediately back down out of fear of a much larger company, after all. It doesn't take too much imagination to suppose that there could be, or perhaps have been, instances we don't know about in which sites simply comply with these unreasonable demands instead of seeking limerick apologies as Malone had.

But if you thought I was going to leave you having read this post without a limerick to read, I can allay those concerns, as Malone himself decided to inform his readers of all of this in poetic form.

As of six thirty-five in the PMs
I've wrapped up my talks with the chieftains
They were misconstrued;
I'm not getting sued
And I needn't write out any ™s

Yes! An official who represents Darden
Has granted me a total pardon
We've reached resolution
I received absolution
For daring to print "olive garden"

The source of the problem was sought
And the sender-offender was caught!
That e-mail was provided
(If you wonder [as I did])
by a prodigious, litigious spam-bot.

My sole issue with Legal's retort
Was the prose of their written report
The demand was specific:
a reply via lim'rick
Well. At least I'm not going to court.

Bravo.

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