Earlier this week, we predicted that either today or tomorrow, we’d hear about ICE and the DOJ once again seizing a bunch of websites… and here it is. This morning, ICE announced that it had seized another 313 websites based on its highly questionable legal theory concerning taking down websites without any adversarial hearing. Of course, lately it’s moved away from doing site seizures concerning websites that deal with content/copyright issues, and focused instead on those it claims are selling counterfeit merchandise. Along those lines, ICE announced that it arrested a few people with counterfeit Super Bowl merchandise.
Of course, this is all for show. Waiting until just a couple days before the Super Bowl is pretty ridiculous, since if people were going to buy merch, they already did so. This is just ICE, once again, generating headlines for the corporations it seems to think it represents. As is his usual MO, ICE boss John Morton talked up just how “successful” this operation was, based on his own metrics, claiming “This just takes good old-fashioned police work, people getting out on the streets.”
Funny, then, that he completely leaves out the parts where they seized legitimate merchandise and hassled the seller. It appears that, sometimes, ICE just isn’t very good at “good old-fashioned police work.” And that’s especially true when it seems to be taking orders from big companies, rather than the public it is supposed to be protecting.
Sometime in the next few days — perhaps Thursday or Friday — expect that ICE and the DOJ will announce excitedly how they’ve seized another hundred or so websites that they’ll claim were selling counterfeit NFL merchandise — and maybe a couple sites that were planning to embed streams of the game. It’s become a Super Bowl Weekend tradition because the feds have nothing better to do, apparently. Two local stories that came out this morning, however, suggest that the feds’ priorities are out of whack. According to a CBS morning radio report in San Francisco, Homeland Security raided a guy selling 49ers merchandise on the street corner at a gas station. They told him that they knew he was selling counterfeit material and seized it… only to find out soon after that the merchandise was legit. Way to do your research, Homeland Security:
Meanwhile, at the same time, there was actual fraud going on, as someone who spent $5,900 on Superbowl tickets on Craigslist was scammed and sent a note that just said “Goo Ravens!!! LOL” instead.
Amazingly, the guy who sent that put a return address on the package and had spoken to the buyers a bunch on the phone. So you would think that, perhaps instead of swooping down on legitimate vendors selling legitimate goods, perhaps law enforcement could be out there arresting folks like this scammer instead. But, I guess that kind of stuff isn’t as important to big companies like the NFL.
With ICE seizing a bunch of websites that were planning to stream this year’s Super Bowl, plenty of people had their ears perk up when Patriots starting quarterback Tom Brady admitted that he watched last year’s Super Bowl via an unauthorized streaming site online. While his view this year was a bit more up close and personal, lots of people were talking about how NBC Universal finally decided to offer up an official stream of the game — about a decade later than it should have done so. Of course, reports from users were that — in typical NBC Universal fashion — the experience was dreadful. Even more ridiculous? The livestream didn’t show most of the commercials because apparently NBC Universal wanted them to pay extra to do so. So, instead, those who watched online “received a heavy dose of the same ads over and over again.” In other words, the online experience was worse. Of course, since they have less competition (thank you US government!), NBC has little incentive to improve the product, so expect it to suck for a few more years now that they’ve finally decided to show the game online.
Ah, the bogus takedown. The latest is that apparently the NFL somehow and for some reason took down Chrysler’s Clint Eastwood Super Bowl commercial from YouTube. Pretty much every advertiser put up their commercials on YouTube, and it’s unclear why or how the NFL might claim any sort of copyright on any of those ads. But, for some time that’s exactly what happened, making Chrysler’s own website promoting the ad look pretty silly:
Considering how much Chrysler had to pay for that ad, you have to wonder if they now feel that the NFL owes them something for making it impossible for people to watch for a while…
The band OK Go has made quite a name for itself over the years as a pioneer/innovator in a number of different ways in the music world. The group has become incredibly famous for their videos, each one of which seems to up the difficulty level. Years ago, they had a simple dance video (filmed in one of their backyards, if I remember correctly), which went viral. Then they had the famous dancing treadmill video. There have been a few others, including a massive Rube Goldberg machine, and now they’ve taken it up a notch with their latest video, which was part of Chevy’s Super Bowl commercial for its new Sonic vehicle. They basically used the car — and a massive amount of setup — to have the car help them perform a song:
In case you’re wondering, there were 55 pianos, 288 guitars, and 1157 of what they describe as “homemade instruments” to make that one work. Also, the video took four months to prepare and four days to shoot… and all of the car driving is actually done by lead singer Damian Kulash, who actually took stunt driving lessons (kinda neat that he can probably write that off as a business expense…). The video description also notes that “each piano had the lowest octaves tuned to the same note so that they’d play the right note no matter where they were struck.” Just in case you were wondering.
Of course, beyond just being kinda cool, this hits on a few points that we talk about regularly. First off, it shows how OK Go has continued to do what it set out to do when it freed itself from its EMI contract. Despite their videos getting millions upon millions of views, EMI was too clueless to know how to actually monetize such success. The band figured it could do a better job itself, noting that if you have the fans, there are always ways to make money. The band has also been pretty vocal about being against things like DRM and for things like making it easier for fans to get their music. And, here, they’re making money by getting sponsors to help them create their crazy music videos. This isn’t a first. The big Rube Goldberg video was sponsored by State Farm.
And, no, no one is saying that every band should get corporate sponsorship (though I’m sure some critics will accuse me of saying exactly that!). It’s just that there are all sorts of creative ways for artists to make money these days, and getting some corporate sponsorship is one that gets little attention, but has been growing massively over the past few years. In fact, it was one of the key themes at MIDEM this year, including a fascinating interview of Mark Ronson with Wendy Clark of Coca Cola by Ian Rogers from TopSpin, all about Coca Cola’s efforts in the music space.
One of the key things in this is the recognition that content is advertising. Lots of people have recognized the reverse: that advertising is content… but things really open up when you realize that content itself is advertising. And that’s something that a lot of brands are recognizing by tying themselves to different content creators, and letting them do cool stuff around their brands. I know that some people find this to be some form of “selling out,” but as Ronson points out in the video linked above (and, as I’m sure the folks in OK Go know well) that’s pretty silly. Most consumers today know that artists need to make money, and as long as the brand gives them the freedom to be who they are and do what they do, most fans have no problem with these kinds of deals.
For years now, we’ve mocked how the NFL insists that no one can use the term “Super Bowl” in an advertisement unless they’re an official sponsor of the event. That’s why it’s become so typical to see advertisers using “the big game” instead — though, five years ago, the NFL even sought the trademark on “The Big Game” because so many advertisers were using it. However, Paul Levy rightly takes advertisers to task for being “weenies” and not standing up to the NFL on this. As he says:
Of course, the NFL’s position is nonsense — this is a nominative use that is just as permissible as, for example, referring to the “Chicago Bulls” instead of “the two-time world champions” or “the professional basketball team from Chicago” (Judge Kozinski’s example from a different era, when the Bulls mattered).
Basically, the game is called the Super Bowl, and calling it that isn’t trademark infringement, so long as you don’t imply that you’re an official sponsor or otherwise officially associated with the game. Of course, where it gets even more ridiculous is when news organizations heed the NFL’s warnings over this — such as the email Levy received from the Boston Globe (pdf) about the Super Bowl, where the term doesn’t appear at all. Levy points out that it’s simply ridiculous that a news organization (and a big one with plenty of lawyers who get this) would still not use “Super Bowl.” Levy suggests we start calling such ridiculousness out:
Instead of praising retailers who skate close to the edge, we should take a page from David Bollier’s excellent Brand Name Bullies and call them Brand Name Weenies. Indeed, it is disappointing that a major metropolitan newspaper that belongs to an 800 pound gorilla like the New York Times Company is unwilling to defy the NFL by using the term in in its advertising. The Times and the Globe certainly advertise their coverage of the New York Giants and the New England Patriots, also trademarked names. If big players like the Times don’t have the cojones to stand up for bullying from the NFL, they make it harder for everybody else.
In their recent book Reclaiming Fair Use, Pat Aufderheide and Peter Jaszi warn that when we refrain from exercising our fair use rights, and act as if those rights do not exist, we help create a culture in which fair use loses ground to overly aggressive copyright enforcement. The same is true in the trademark realm. We can only hope that when the next Superbowl rolls around, the Times and its brethren, and even the HDTV sellers, will have shed their timidity.
It’s the Super Bowl. Call it the Super Bowl. Just… uh… don’t have too many friends over to watch it on a big screen. Because that’s copyright infringement.
Despite the massive failures of Immigration and Customs Enforcement’s (ICE) program to seize domains on questionable legal theories, it’s right back at it. ICE has just seized over 300 domains apparently all related to the Super Bowl (of course). They did this last year too… and now the US government is in court over it with the Rojadirecta sites. Many of the sites were selling counterfeit merchandise, which is a more reasonable target, but still seems to be overblown. I’m still at a loss as to how this is any of the government’s concern, rather than a civil issue that could be taken up by the NFL itself. Do we really want law enforcement officials spending time working for the NFL?
Sixteen of the sites in question, however, were supposedly offering video streaming — which is what Rojadirecta was accused of doing (under a bogus legal theory, since it didn’t actually offer the streams, but merely links). In this case, ICE also arrested one guy for running a streaming site:
Additionally, Yonjo Quiroa, 28, of Comstock Park, Mich., was arrested Wednesday by special agents with HSI. He is charged with one count of criminal infringement of a copyright related to his operation of websites that illegally streamed live sporting event telecasts and pay-per-view events over the Internet. Quiroa operated nine of the 16 streaming websites that were seized, and he operated them from his home in Michigan until yesterday’s arrest.
The website seizures during Operation Fake Sweep represent the 10th phase of Operation In Our Sites, a sustained law enforcement initiative targeting counterfeiting and piracy on the Internet. The 307 websites are in the process of being seized by law enforcement, and will soon be in the custody of the federal government. Visitors to these websites will then find a seizure banner that notifies them that the domain name has been seized by federal authorities and educates them that willful copyright infringement is a federal crime.
Of course, this has to raise a pretty significant question: exactly how is someone streaming the Super Bowl harming… well… anyone? The entire point of the Super Bowl is to get as many people watching the advertisements as possible. Having the game streamed only increases the number of people watching those ads. Who, exactly, is harmed by this?
In discussing these particular website seizures (not the ones about counterfeiting products), ICE ridiculously declares that it’s somehow protecting American ideas from being stolen. Do they even realize how idiotic that sounds? What “idea” is being stolen when someone makes it easier to watch the ads that go with the Super Bowl?
Earlier this year, I randomly ended up in a fascinating conversation with a marketing guy from Pepsi, who was telling me about some of the online marketing efforts the company ran during the 2009 Super Bowl, saying that they got the same “response” as the multi-million dollar Super Bowl commercials got, but only cost in the tens of thousands of dollars, rather than millions. Based on that I have to admit I’m not all that surprised to find out (via The Infamous Joe) that Pepsi has decided not to buy any Super Bowl ads for the 2010 game, but will be investing a ton in some online promotions. This is after 23 straight years of Super Bowl ads by Pepsi, costing the company hundreds of millions of dollars. I’m sure that the Super Bowl will be just fine (it claims it’s sold out 90% of its ads already, though the prices did drop a bit this year, apparently), but it does suggest that some may be realizing that there are better ways to get your message out than spending a ridiculous sum for a single commercial spot.
CBS has certainly taken a much more enlightened view to online content than NBC. While it’s true that NBC is seeing a lot of success with Hulu, the company resisted online efforts for years, and has always resisted the idea of allowing people to watch content as they want to. Instead, the company has focused on limiting how, where and when you can watch its content. CBS, on the other hand, was an early believer in focusing less on control and more on just getting your content out there. For an example of this contrast, look at how the two networks are dealing with big sporting events.
As recently discussed, NBC is working hard to make it as difficult as possible for you to watch the Olympics online, even when its own experience showed that online viewers didn’t cannibalize TV viewers — in fact the opposite happened. People who watched online watched more TV. So why are they trying to make it so hard to watch online?
Meanwhile, CBS, which had tremendous success webcasting the NCAA’s March Madness basketball tournament is now working to see if it can get the permission to broadcast the Super Bowl online as well (thanks to MattP for sending this in), knowing that it will likely bring in a larger audience, and increase the opportunities for everyone.
Well here are a couple stories to leave you with as we head into Super Bowl weekend. Every year it seems there’s some insanity concerning the NFL somehow trying to abuse intellectual property rights above and beyond what they’re designed for. Remember, the NFL thinks that it can tell reporters how to report on a game, while also forcing them to advertise for NFL sponsors. It also has been known to issue bogus DMCA notices. And, of course, don’t forget that not only has the NFL bullied people into believing that you can’t use the phrase “The Super Bowl” in an advertisement, after many advertisers switched to the euphemism “The Big Game” to appease the NFL, it tried to trademark “The Big Game” as well.
This year, the big news (as submitted by a lot of you), but first by Ryan, is that the New England Patriots have applied for a trademark on “19-0” to represent the undefeated season the team will have if it wins this season. The NY Post, snarky as ever, filed for a trademark on 18-1 in response, supporting the home town NY Giants. This, of course, seems rather ridiculous. What would happen in future seasons if some other team was able to go 19-0? There’s also the question of hubris in declaring yourself 19-0 before that final game. On that note, you can already pre-order a book about the 19-0 season, even though it hasn’t been completed yet.
So, remember, as you watch the… event… this weekend, to do so on a TV smaller than 55″, do not refer to it as “The Super Bowl” or “The Big Game,” make sure to notice the photojournalists wearing sponsors’ clothing, and certainly do not put a fair use clip on YouTube. And, perhaps, cheer on the Giants in their effort to make the 19-0 trademark question a hypothetical, rather than practical, question.
