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




Posted on Techdirt - 17 April 2018 @ 8:00pm

Apple's Internal Memo Warning Employees Not To Leak To The Press Leaks To The Press

from the of-course-it-did dept

Whatever the actual numbers, it seems like some hefty percentage of technology news revolves around leaks of one kind or another. Whether it concerns government, corporate, or legal proceedings information leaking to the public, it happens enough that at this point the operating posture of any organization should probably be to expect leaks, rather than flailing at modernity and trying to stop them. Hell, if the White House can't keep what seems like literally anything under wraps, what hope does the average business have?

Apple, of course, is not an average company. And, yet, when the company put out an internal memo warning its employees not to do the leaking, that memo almost immediately leaked to the press.

On Friday, Bloomberg News published what it described as an "internal blog" post in full. The memo warned that Apple "employees, contractors, or suppliers—do get caught, and they’re getting caught faster than ever."

The post also reportedly noted that, "in some cases," leakers "face jail time and massive fines for network intrusion and theft of trade secrets both classified as federal crimes," adding that, in 2017, "Apple caught 29 leakers, and of those, 12 were arrested."

Memos like this set off a delightfully oppressive mood within the organizations that send them. Part of the reason for that is that the practice of leaking is so widespread so as to make the selective persecution of any leaker seem callous and unfair. Add to that the simple fact that well-timed strategic leaks are practically marketing SOP in many larger organizations and this seems doubly so. And, finally, I cannot be the only one struck by how low Apple's catch-rate feels within the memo itself. 29 leakers caught in a year? That has to be some unimpressive fraction of the actual leakers that exist.

Anyone who might want to argue the points above needs to make that argument in the context of a reality in which this scare-memo itself leaked to the press. That this occurred only buttresses the argument that battling all leaks all the time is a losing battle. And if that's the case, then the selective enforcement of anti-leaking policies will only come off as both confusing and capricious.

Not to mention a giant waste of time and money, compared with incentivizing employees to leak only when its beneficial to the company.

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Posted on Techdirt - 17 April 2018 @ 3:33pm

The Music Industry Now Wants To Creep Past Site-Blocking Into App-Blocking

from the creepers-gonna-creep dept

With site-blocking now fully en vogue in much of the world as the preferred draconian solution to copyright infringement, one point we've made over and over again is that even this extreme measure has no hope of fully satisfying the entertainment industries. Once thought something of a nuclear option, the full censorship of websites will now serve as a mere stepping stone to the censorship of all kinds of other platforms that might sometimes be used for piracy. It was always going to be this way, from the very moment that world governments creaked open this door.

And it appears it isn't taking long for the entertainment industries to want to take that next step, either. As the debate about Kodi addons rages, and as governments begin to clamp down on the platform at the request of the entertainment industry, several industry players at an IP forum event in Russia have started announcing plans to push for app-blocking as the next step.

Over in Russia, a country that will happily block hundreds or millions of IP addresses if it suits them, the topic of infringing apps was raised this week. It happened during the International Strategic Forum on Intellectual Property, a gathering of 500 experts from more than 30 countries. There were strong calls for yet more tools and measures to deal with films and music being made available via ‘pirate’ apps.

The forum heard that in response to widespread website blocking, people behind pirate sites have begun creating applications for mobile devices to achieve the same ends – the provision of illegal content. This, key players in the music industry say, means that the law needs to be further tightened to tackle the rising threat.

“Consumption of content is now going into the mobile sector and due to this we plan to prevent mass migration of ‘pirates’ to the mobile sector,” said Leonid Agronov, general director of the National Federation of the Music Industry.

Look, all of that is true. Innovation happens often at the margins when it comes to technology, after all, and the technology that powers piracy is no exception to this rule. At the same time, neither the entertainment industry nor the governments of the world have ever, even once, shown themselves to be good or fair arbiters of what tools are "pirate tools" and which are legitimate tools that sometimes are used for piracy. If given the power, both will overshoot the mark, with entertainment groups carpet-bombing their way to collateral damage just to be sure that pirates are obliterated, and governments all too often using this copyright censorship as cover to enact oppressive censorship on matters of pure politics.

In other words, it's not that the entertainment industry is wrong that there is some measure of a problem to be dealt with, it's just that their censorious solution creates way more problems than it solves.

Despite that, the music industry, in particular, is banging its war drum.

The same concerns were echoed by Alexander Blinov, CEO of Warner Music Russia. According to TASS, the powerful industry player said that while recent revenues had been positively affected by site-blocking, it’s now time to start taking more action against apps.

“I agree with all speakers that we can not stop at what has been achieved so far. The music industry has a fight against illegal content in mobile applications on the agenda,” Blinov said.

This is not an arms race that the content industry has shown it is capable of winning. But while they beat these war drums for evermore censorship, the unintended consequences are strewn like bodies all around them. From Blinov's home country of Russia, the government has been laughably inept at separating pirate site from non-pirate site to the tune of a ten-fold blocking of collateral damage sites, all while the government also uses those same copyright laws to shut down political speech and reporters it doesn't like.

And it is in this climate that content companies want to hand even more blocking powers to the authorities? First they came for the websites, then they came for the mobile applications? Whatever comes after that is not something to look forward to.

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Posted on Techdirt - 16 April 2018 @ 3:27pm

MPAA Apparently Silently Shut Down Its Legal Movies Search Engine

from the we-hardly-knew-ye dept

In 2015, with much fanfare, the MPAA released its own search engine of sorts as WhereToWatch.com. The idea behind the site was to combat the argument that people pirate films because there are too few legal alternatives. The MPAA built the site to show where those legal alternatives do in fact exist. Left unaddressed, of course, were questions about how useful and convenient those alternatives were, how users had to navigate through a myriad of restrictive policies for those legal alternatives, and how terrible Hollywood must be in promoting its legal alternatives if the only thing needed to stop all this piracy was an MPAA search engine.

On top of that, WhereToWatch served as something of an excuse for many draconian polices the MPAA was pushing for all along. By being able to point to the search engine as "proof" that all kinds of legal alternatives to piracy were readily available, the MPAA argued that policies such as "notice and staydown" as well as site-blocking were legitimate pursuits. Somewhat predictably and with a heaving helping of irony, WhereToWatch received multiple DMCA takedown notices for its search results, demonstrating how perilous DMCA takedowns have become.

And now comes the news that the MPAA actually shuttered the site months ago.

The MPAA pulled the plug on the service a few months ago. And where the mainstream media covered its launch in detail, the shutdown received zero mentions. So why did the site fold? According to MPAA Vice President of Corporate Communications, Chris Ortman, it was no longer needed as there are many similar search engines out there.

“Given the many search options commercially available today, which can be found on the MPAA website, WheretoWatch.com was discontinued at the conclusion of 2017,” Ortman informs TF. “There are more than 140 lawful online platforms in the United States for accessing film and television content, and more than 460 around the world,” he adds.

That is all absolutely true today, though it was also true three years ago when the site was launched. The simple fact of the matter is that the site did little to serve any real public customer base. Yes, legal alternatives to piracy exist. Everyone knows that, just as they know that there are far too many hoops and restrictions around which to jump that have nothing to do with price. The MPAA and its client organizations have long asserted strict control over their product to the contrary of public demand. That is, and has always been, the problem.

On top of all that, the MPAA showed its no better at promoting its site than it was at promoting the legal alternatives to pirating movies.

Perhaps the lack of interest from the U.S. public played a role as well. The site never really took off and according to traffic estimates from SimilarWeb and Alexa, most of the visitors came from Iran, where the site was unusable due to a geo-block.

Look, the basis for this effort was a good one: promote legit movie-watching to customers currently pirating. That's laudable. But Hollywood is in the business of convincing the public to do so every bit as much as the public is obligated to buy Hollywood's products. It's not enough to build a search engine to the current unwanted offerings and call it a day.

You have to actully innovate.

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Posted on Techdirt - 13 April 2018 @ 3:58pm

In-N-Out Sues Australian Burger Joint, Despite Having No Restaurants In The Country

from the burgers-everywhere dept

Whenever companies and brands begin behaving badly when it comes to enforcing their trademarks, one common reaction from outsiders is "why?" The reason for that singular question can vary, whether it stems from a lack of true infringement taking place to the seemingly harmless nature of use in dispute to everywhere in between. But perhaps there is no better example of a trademark dispute inducing a "Why?" than in the news that In-N-Out is suing an Australian burger company without doing any real or regular business on that entire continent.

Californian burger chain In-N-Out has no presence in Australia. Or anywhere much further than the U.S. west coast and Texas, really.

That hasn't stopped In-N-Out from suing Sydney-based restaurant Down N' Out, which opened in 2016 and served burgers that were a tribute to the cult chain. As reported by the Sydney Morning Herald, In-N-Out claimed the Australian restaurant infringes on its trademark and engaged in misleading or deceptive conduct by using the Down N' Out name and logo.

Ok, let's highlight this just so nobody can accuse us of being unclear on the point: Down N' Out is clearly referencing and paying homage to In-N-Out, the famous California burger chain. In-N-Out also claims that all of this amounts to Down N' Out trying to pass itself off as being related to the California company. Even if the latter were true, which I doubt is the case, the fact remains that In-N-Out has barely done any business on the entire Australian continent. Despite this, the chain argues that it has "substantial goodwill" in Australia. How that would be, other than by reputation in the media, is anyone's guess.

Despite that, In-N-Out is demanding the Australian company change its name and hand over a bunch of money.

Legal proceedings were launched in Australia's Federal Court in October last year, and In-N-Out has until June to submit evidence to support its claims. In-N-Out wants Down N' Out to stop using the brand, and to pay damages or hand over profits made while using the name.

Again, why? This is dumb, and it's a terrible use of legal funds to wage trademark war on a country in which In-N-Out has no storefront. There's no threat here, because the company isn't operating in that market. All we are left with is our singular question: why?

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

Update: Actually, Court Orders Iowa State To Pay Alums $600k For Violating Their Rights

from the halfa-mildo dept

We'll keep this short and sweet, but it's always good to highlight when the legal system manages to smack around organizations that try to use intellectual property laws to flatly violate people's rights. You will hopefully recall that in 2017, Iowa State University began blocking any requests by NORML, a group advocating for pro-marijuana laws, to use the school's iconography. NORML sued the school, specifically over threats the school made against the alums running the group over use of its trademarks and a requirement that the school have the right to approve any design for apparel by NORML that included any references to the school. NORML argued that because the school had initially approved their uses, only to flipflop largely under pressure from the conservative state legislature, this was a violation of its free speech rights.

The courts agreed, declaring that ISU had violated NORML's First Amendment rights. The State Appeal Board voted to pay NORML roughly $350k in compensation, leading to many breathless headlines about just how much taxpayer money the school's idiotic actions had wasted.

And now we learn that the cost will actually be much higher, with the courts ordering the state to pay $600k in attorney's fees.

The decision, filed in the U.S. Court for the Southern District of Iowa, closed the case and entered a judgement for $598,208.17 for plantiffs Paul Gerlich and Erin Furleigh late last month. ISU was previously ordered to pay $75,000 to Gerlich and Furleigh each in damages, along with about $193,000 in attorney fees earlier in the case.

Every citizen in Iowa ought to be casting a narrowed eye at everyone involved in this process, from the school to the legislative members that thought stomping on free speech in this way was a good idea. This is taxpayer money being paid out, after all, with the people of Iowa footing the bill for the sins of those that will pay nothing.

Surely just letting speech flow on university campuses would be a better idea, right?

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Posted on Techdirt - 11 April 2018 @ 12:06pm

MPAA Report Shows How The Internet Is Saving The Film Industry, Not Destroying It

from the told-you dept

The MPAA has long found itself in the odd position of cheerleading its own industry's never-attained demise. One of the core functions of the organization has been to demonize the internet with incessent discussions about how piracy is "killing" the industry, a death that never seems to take. Others have posited that the movie industry needs the internet more than the other way around, which hasn't prevented Hollywood from waging a clandestine war through pricing and burdensome licensing arrangements with service providers that actually stave off piracy, such as Netflix. Whether Hollywood knew it was waging this war is an open question, but the end result of its tactics were to tamp down the usefulness of Netflix.

And, yet, Netflix grew and grew anyway.

Which perhaps has brought us to something of a turning point. There is a major change in the MPAA's latest annual report, one which serves to laud the internet for saving its industry, instead of killing it. The MPAA has decided to finally start including home-viewing numbers and revenue in the report, and the numbers make it quite clear where the industry's revenue is coming from.

Breaking from tradition, newly installed MPAA chairman-CEO Charles Rivkin has decided to include home entertainment spending in the MPAA's annual report on the health of the film business. Previously, the report focused solely on theatrical revenue. There's good reason for the change-up, considering the explosion in digital subscription services, compared to the volatile theatrical market and the demise of DVD sales, once the jewel in the crown of Hollywood's profit machine.

In 2017, combined global spending on theatrical and home entertainment hit $88.4 billion. Digital home entertainment, which includes streaming services, soared 31 percent year-over-year to $32.1 billion, while physical home entertainment spending continued to plummet, down 15 percent to $15.7 billion. But, thanks to digital — up a staggering 161 percent from five years ago — total home entertainment spending was up 11 percent ($47.8 billion).

Another way to put this, assuming we want to adopt the context the MPAA has tried to paint of an industry in peril, is that the MPAA is reporting that the internet saved Hollywood. Going further during a press call, Rivkin excitedly stated that this rising trend in home-viewing isn't showing any sign of stopping, either. Of particular importance are the revenue trends in digital streaming, a technology that, again, MPAA members have tried to handcuff in every way they can. Enormous licensing sums, restricting access to catalogs, and confusingly granting and pulling access to certain films and shows has been par for the course. Despite all of that, the demand from the public is clear: more streaming, more access, more movies.

Even those representing movie theaters, where domestic revenues continued to decline, are starting to get how important the internet is to the movie-making ecosystem.

"You might find oxymoronic for someone who represents theater owners to champion the home entertainment part of the report," said National Association of Theatre Owners president John Fithian, who also participated in the press call. "Those same people who have the most technologies are also the most frequent moviegoers. We want our distribution and production partners to make more money in the home because they can make more and bigger movies for us."

If everyone is on board with this as they're making out to be, strategies should shift right now to those that are more internet and consumer friendly. Reductions in release windows, expansion of catalogs from the studios, and an eye on pricing licensing to maximize adoption among consumers. These are the things Hollywood should be doing and they are the polar opposite of what it's done for years.

Perhaps this report is the first step in the entertainment industry finally realizing that the internet is not its enemy, but might actually be its salvation. If not, the MPAA's own numbers show that it will be biting the hand that feeds it.

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Posted on Techdirt - 10 April 2018 @ 12:04pm

Again, Algorithms Suck At Determining 'Bad' Content, Often To Hilarious Degrees

from the peachy dept

A few weeks back, Mike wrote a post detailing how absolutely shitty algorithms can be at determining what is "bad" or "offensive" or otherwise "undesirable" content. While his post detailed failings in algorithms judging such weighty content as war-crime investigations versus terrorist propaganda, and Nazi hate-speech versus legitimate news reporting, the central thesis in all of this is that relying on platforms to host our speech and content when those platforms employ very, very imperfect algorithms as gatekeepers is a terrible idea. And it leads to undesirable outcomes at levels far below those of Nazis and terrorism.

Take Supper Mario Broth, for instance. SMB is a site dedicated to fun and interesting information about Nintendo and its history. It's a place that fans go to learn more weird and wonderful information about the gaming company they love. The site also has a Twitter account, which was recently flagged for posting the following tweet.

For the sin of tweeting that image out, the site's entire account was flagged as "sensitive", which means anyone visiting the account was greeted with a warning about how filthy it is. What Twitter's systems thought was offensive about the image, which comes from another video from a costume company that works with Nintendo, is literally anyone's guess. Nobody seems to be able to figure it out. My working theory is that the Princess Peach's lips resemble too closely a more private part of the female anatomy and, when coupled with the flesh-colored face surrounding it sent Twitter's algorithm screaming "Aaah! Vagina!" leading to the flagging of the account. But this is just a guess, because although the "sensitive" flag was eventually removed, SMB never got any response or explanation from Twitter at all.

SMB went as far as to test through dummy accounts whether the image was the entire problem. It was. After posting the image several times from other accounts, each account was flagged within minutes of the posting. It's an algorithm doing this, in other words, and one which seems ill-suited to its task.

What we have here is two related problems. We have a company designed to let speakers speak employing an algorithm to flag offensive content, which it is doing very, very badly. We also have a company with a staff insufficiently capable to correct the errors of its incapable algorithm. This would be annoying in any context other than current reality, which sees rising calls for internet sites to automagically block "bad" content and do so with literally inhuman speed.

That means algorithms. But the algorithms can't do the job. And with sites erring on the side of over-blocking to avoid scrutiny from both the public and governments, that means open communication is the loser in all of this. It's hard to imagine an outcome more anathema to services like Twitter than that.

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Posted on Techdirt - 6 April 2018 @ 1:33pm

Japanese Government Seeks To Circumvent Its Own Constitution To Censor 'Pirate' Sites

from the that's-not-how-constitutions-work dept

With site-blocking regimes now fully in vogue, far too many governments are getting in on this censorious party. In the cases of most governments, there is leeway in the overall legal structure to do this sort of thing, even if it is wholly unadvised and typically comes with disastrous results. But when Japan announced recently that it is considering site-blocking of so-called "pirate sites" in order to help its anime and manga industries, many familiar with Japanese federal law raised an eyebrow.

The country has no specific legislation that allows for site-blocking of any kind, let alone on copyright infringement grounds. In fact, the constitution expressly supports freedom of speech and expressly forbids censorship.

“Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed,” Article 21 reads. “No censorship shall be maintained, nor shall the secrecy of any means of communication be violated,” the constitution adds.

If you wanted a federal constitutional provision that almost perfectly inoculated against censorious site-blocking over something as relatively mundane as copyright infringement, this would appear to be it. The writers of the Japanese constitution clearly were concerned about government censorship and specifically prohibited it.

This has not stopped the government from trying to dip its toes in these waters, chiefly by pretending that copyright infringement is something that it isn't.

Mainichi reports that the government will argue there are grounds for “averting present danger”, a phrase that’s detailed in Article 37 of Japan’s Penal Code.

“An act unavoidably performed to avert a present danger to the life, body, liberty or property of oneself or any other person is not punishable only when the harmc produced by such act does not exceed the harm to be averted,” the Article (pdf)begins.

It’s fairly clear that this branch of Japanese law was never designed for use against pirate sites. Furthermore, there is also a clause noting that where an act (in this case blocking) causes excessive harm it may lead “to the punishment being reduced or may exculpate the offender in light of the circumstances.”

If Japan indeed goes down this route, it will be a complete mess at best and result in the eroding of its own constitution at worst. To combat copyright infringement. The very notion of this is insane. Creaking open the door for this kind of full site-blocking censorship, a door that will surely be burst through by every major and minor content producer in Japan and abroad, and subverting the nation's constitution in order to support one specific industry within the country that isn't hurting for money, make zero sense. The manga industry in Japan alone is a multi-billion dollar industry and it's growing. Whatever challenges it faces from copyright infringement, it's not existential in nature.

As of now, the government looks to be softening its approach to make this kinda-sorta voluntary by ISPs.

It appears that rather than forcing Internet providers into compliance, the government will ask for their “understanding” on the basis that damage is being done to the anime and manga industries. ISPs reportedly already cooperate to censor child abuse sites so it’s hoped a similar agreement can be reached on piracy.

Initially, the blocking requests will relate to just three as-yet-unnamed platforms, one local and two based outside the country. Of course, this is just the tip of the iceberg and if ISPs agree to block this trio, more demands are sure to follow.

This has been true in virtually every case where site-blocking has been introduced. It starts off as the mere exception before being strong-armed into the rule.

Don't do this, Japan. Don't torch your own constitution over a non-problem.

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Posted on Techdirt - 5 April 2018 @ 8:19pm

Appeals Court Rules That GTA5 Didn't Infringe On Lindsay Lohan's Likeness Rights

from the now-please-go-away dept

While there are absolutely far too many Techdirt posts featuring celebrity(?) Lindsay Lohan in these pages, most of them deal with one specific issue: her lawsuits against Take Two Interactive. At issue was a character Lohan insisted infringed on her likeness rights because the character is a drunk driver, public-fornicator, and has a backstory as a child actress. If Lindsay wants to insist that her own history lines up with that sort of backstory, I guess I won't argue with her, but the character has many other aspects that clearly have nothing to do with Lohan. Instead, the character is a parody of the sort the GTA series is famous for, with the target in this case being young celebrity stars and starlets. Coming along for the ride was Karen Gravano, who participated in a reality show about the wives of reported mobsters. Gravano sued over another character in the series with her filings essentially mirroring Lohan's. Take Two won both lawsuits, both on First Amendment grounds and due to the court finding that the characters were composite parodies, not representations of either Lohan or Gravano. Both plaintiffs appealed.

And now the New York Court of Appeals has ruled in favor of Take Two again in both cases.

Here, the Jonas character simply is not recognizable as plaintiff inasmuch as it merely is a generic artistic depiction of a 'twenty something' woman without any particular identifying physical characteristics. The analysis with respect to the Beach Weather and Stop and Frisk illustrations is the same. Those artistic renderings are indistinct, satirical representations of the style, look, and persona of a modern, beach-going young woman. It is undisputed that defendants did not refer to plaintiff in GTAV, did not use her name in GTAV, and did not use a photograph of her in that game. Moreover, the ambiguous representations in question are nothing more than cultural comment that is not recognizable as plaintiff and therefore is not actionable under Civil Rights Law article 5.

You can read the full opinion here, but suffice it to say that this should be the end of this nonsense from Lohan. At the same time, the court also ruled on Gravano's appeal, with identical findings.

Concurrently with this opinion comes a loss for ex-Mob Wives star Karen Gravano, who brought a similar lawsuit against Take-Two over the character of "Andrea Bottino" in Grand Theft Auto V. The appeals court fails to see a recognizable image there as well.

That should be the end of that as well. One wonders just how much in legal fees both Gravano and Lohan were billed, with the next natural thought being just how much better such funds could have been used other than to engage in a prolonged legal fight without merit, with almost no chance of success, and over an issue that was not injurious to either party? Lohan in particular has a history of looking for paydays in the form of these types of lawsuits, but it's difficult to see how she could be in the black at this point.

It would probably be best to simply save that money for the future.

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Posted on Techdirt - 4 April 2018 @ 8:03pm

ESPN To Combat Cord-Cutting By Putting Once Kinda Free Content Behind A New Paywall

from the that'll-show-'em dept

In reaction to cord-cutting, a very real "thing" no matter what some cable executives will tell you, ESPN has mostly employed two strategies to combat it. The first strategy has been to stick its head as far and deep into the sand as possible, virtually ignoring reality. Once that was no longer possible, the ESPN ostrich lifted its head out of the sand and squawked out a new streaming service, for which it would bill customers $5/month. In that last link, our own Karl Bode wrote:

There's every indication that ESPN's still only paying lip service to innovation. What consumers say they want is the ability to either avoid ESPN entirely, or buy ESPN the channel on a standalone basis. But it's important to point out that's not what ESPN is actually offering here. The new streaming service won't provide access to ESPN's existing channel lineup unless you have a traditional cable subscription. Without a traditional cable TV subscription, users of the app will be directed to other content they may or may not actually want.

While all of that is still mostly true, recent revelations about the new streaming service indicate that it's actually worse than Bode described. There will indeed be more content on ESPN+ that users probably do want -- such as MLB and NHL games --, much of the rest of the content offered through the service will be cannibalized from another ESPN property that has previously been kinda sorta "free" if you're a cable subscriber.

ESPN+ is also a way to get some extra money out of current subscribers, ones who might already be used to thousands of live sports over streaming. If this new service sounds a lot like ESPN3, the current online home—provided by many ISPs*—for thousands of sports that aren’t televised on ESPN’s TV channels, you’d be right.

While certain aspects, like the MLB and NHL games, are brand new, one of ESPN3's main draws is a wealth of college games in lesser-watched sports or conferences, as well as expanded coverage of Grand Slam tennis and global competitions like cricket. The network has so far been vague about which leagues and games will get cannibalized from ESPN3, or how many, but ESPN did confirm that some of ESPN3's programming will change.

ESPN3 comes along with many cable television packages that include ESPN's TV channels. The content for ESPN3 has always been the sort that isn't popular enough to air on the channels, but which might interest some customers. College games and niche sports make up the bulk of the lineup. But now ESPN will remove some of that content and put it behind a $5/month paywall, asking customers used to getting this content free, bundled with their cable subscription, to instead pay another $60 per year for it. Same content, more money, all while further reducing the value of an ESPN cable subscription, where ESPN still makes most of its money.

How is this a recipe for increased revenue?

You'll still get ESPN3 forced on you by your cable subscription (if you have one), it will just suck a little bit harder. Most of the sports content you want will still only be available through a cable TV subscription, which more and more people do not want. And ESPN+ will cost more money, while only being moderately better in content compared with the bundled in ESPN3.

This is what we call a swing and a miss.

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Posted on Techdirt - 3 April 2018 @ 3:48pm

Take-Two Fails To Get NBA2K Tattoo Copyright Lawsuit Dismissed

from the written-in-ink dept

I'll forgive you since it's been two years, but hopefully you will remember our posts about a crazy copyright lawsuit back in early 2016 between a company called Solid Oak Sketches and Take-Two Software. At issue were Take-Two's faithful depictions of several NBA stars in its NBA 2K series of games, including LeBron James and Kobe Bryant. The problem is that Solid Oak claims to have copyrights on several tattoos appearing on the skin of these players, all of which show up in the images of the game. Of course, Take-Two negotiates the rights for player likenesses with the NBA Players Association, meaning this lawsuit has the odd smell of a third party bickering over branded cattle. While Solid Oak is asking for $1.2 million in damages, Take-Two has pointed out that these sorts of statutory damages shouldn't apply as the company only registered its copyrights in 2015. This fact leads a reasonable observer to wonder why the copyrights weren't registered much earlier, were Take-Two's use so injurious.

That question is of course tangent to the most central concern of why in the world any of this isn't obvious fair use? Take-Two has First Amendment rights, after all, and its use of the eight tattoos in each iteration of the game is a hilariously small portion of each work. On top of that, the whole enterprise of the game is to faithfully depict reality with regards to each player whose likeness it has properly licensed through the NBAPA. None of this should strike anybody as a million dollars worth of copyright infringement.

And, yet, a court recently refused to grant Take-Two's petition to dismiss the case, allowing this mess to proceed.

"While Defendants contend that the Tattoos in NBA2K are 'observable only fleetingly'; 'displayed only briefly'; 'a small part of the graphical display' when displayed; 'sometimes obscured by other graphics'; 'not displayed prominently'; and 'sometimes displayed out of focus,' Plaintiff denies each and every one of these characterizations of the Tattoos. Instead, Plaintiff contends that, if an NBA2K player selects Messrs. James, Martin and Bledsoe in a given game or series of games, or 'employs the broad range of the video game’s features to focus, angle the camera on, or make the subject tattoos more prominent,' 'the overall observability of the subject tattoos can be fairly significant.' Thus, it is difficult to determine whether the substantial similarity is apparent to the 'average lay observer,' if what he or she is observing varies in each iteration of the game."

I own several of these games and can attest that the observability of any tattoos on any player within them are fleeting at best. The whole point of the game is to be an action-packed basketball experience from a viewpoint of most of, or the entire, basketball court. Picking out individual tattoos is rarely possible other than in manual instant replay. And, sure, some players might use that replay feature, but not regularly and not as part of regular play. This smacks of a judge that needs only to be sat in front of a television or computer screen to see the game in operation in order to have reached the proper and opposite conclusion.

But Take-Two also made a First Amendment claim, arguing, as I did above, that granting tattoo artists the rights Solid Oak is claiming would be to allow tattoo artists to trump the likeness rights of a natural person. If that doesn't strike you as plainly insane, it should. Yet the judge apparently considered all of this a question of visual accuracy and therefore denied the fair use defense.

"Because of the difficulties inherent in conducting a side-by-side comparison of the video game and the Tattoos, further evidence must be considered in connection with the fact-intensive question of the applicability of the fair use defense. As the differences between the Tattoos and Defendants’ use in the video cannot be resolved with assurance on a visual comparison of the works alone, Defendants’ fair use of the Tattoos is not so clearly established on the face of the [SAC] as to support dismissal."

To be fair to the judge, often times the court is wary of dismissing early on in the trial process over fair use defenses that aren't on very, very solid ground. That may be what is going on here. But if it is, this seems to be chiefly an issue of calibration, because Take-Two's fair use claims are very strong, and the implications of Solid Oak succeeding in its lawsuit are both not in the original interests of copyright law and plainly horrifying when it comes to public persons and their ability to trade off of their own likenesses.

Hopefully a jury will be more grounded than the court.

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Posted on Techdirt - 2 April 2018 @ 8:08pm

University Of Illinois Attempts To Trademark Bully An Alumnus After Failing To Stop His Trademark Registration

from the miga dept

It's not a great look when our institutions of higher learning either can't get their own collective shit together on matters of law or else attempt to bully former students with specious claims. And, yet, this appears to happen far too frequently. The most glaring example of this was Iowa State University's attempt to violate the free speech rights of its students that resulted in a $400k bill of blowback. Now it seems that the University of Illinois is seeking to trademark bully an alumnus after failing to take action during that alumnus' trademark registration for a t-shirt in orange and black that reads "Make Illinois Great Again."

It claims that an alumnus selling orange-and-black T-shirts with the phrase “Make Illinois Great Again” and a drawing of Chief Illiniwek (below) – the politically incorrect mascot itdumped 11 years ago – is trampling on the taxpayer-funded institution’s intellectual property.

The News-Gazette reports that the university claims the shirt’s colors are its “trade dress,” UI is often referred to as just “Illinois,” and that the shirt’s drawing of the chief infringes a 2007 photo of the chief. Therefore, defendant Ted O’Malley is “creating confusion in the marketplace” about who is behind the shirts.

You should recognize that this whole thing is absurd. The t-shirt makes no reference to the college beyond the image of The Chief, a dumb "mascot" that the school abandoned over a decade ago. U of I does use orange as a school color, but not black. Orange is also used as the color for many things. Oranges, for instance, turn out to often be orange in color. So do other universities, such as Syracuse. Regardless, while there is a nod to the Illinois school in the design of the t-shirt, it's not one that makes confusing use of trade dress for the school, nor is it one that would cause confusion in the marketplace. In fact, the whole point of the shirt is to protest U of I's shitty athletic program.

It's quite hard to argue that anyone viewing that shirt, or the ad for it, is going to think it is coming from the school the shirt is criticizing. O'Malley's lawyer obviously agrees.

“No one in their right mind would possibly believe that was something furnished by the University of Illinois,” said his attorney, Doug Johnson. “It’s much like someone making something that said ‘Make America Great Again’ being sued by America.

“They are a state actor, and they don’t like the message. They’re trying to stifle First Amendment rights.” …

“How many pictures of the Chief have been taken over the last 30, 40 years?” he said. “That’s like saying I took a picture of Wrigley Field, and you can’t draw a picture of Wrigley Field because I took a picture of it one time.”

The most face-palming aspect of all of this is that the school had every opportunity to raise these issues when O'Malley registered for a trademark on his slogan and shirt design. Upon his doing so, the school apparently challenged the registration... before falling asleep and forgetting that it had to do more than that.

The university sought to stop approval of the trademark in November but couldn’t be bothered to respond to a motion to dismiss by O’Malley’s lawyer Johnson.

In that motion with the U.S. Patent and Trademark Office, Johnson said the sought trademark was a “political statement” against the state government for its “unpaid bills of over 15 billion dollars” and record of tax hikes, as well as an athletic statement against the poor performance of the university’s football and basketball teams.

Johnson pointed to the nearly 900 registered trademarks with the word “ILLINOIS” in them and said his client’s design didn’t use italics, as does the university’s official design.

And that was it. The school never responded. In other words, the trademark concerns it claims to hold so much so as to cause it to sue a former student were apparently not so important to warrant a simple legal response to a proceeding the school itself had initiated.

It might be time to make the University of Illinois' legal team great again. Or, if not great, perhaps responsive?

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Posted on Techdirt - 30 March 2018 @ 3:32pm

NBA To Experiment With Cheap 4th Quarter Only Streaming Options

from the buzzer-beater dept

As entertainment streaming has officially become "a thing", one leading to massive change in the entertainment landscape, many eyes still turn towards the professional sports leagues. That's because live professional sports is now one of the last big bulwarks against cord-cutting. With that in mind, it's interesting to watch the major sports leagues experiment in streaming, a process that began roughly five years ago in earnest. While Major League Baseball has long led the way, the other leagues are catching up. The NBA in 2014 negotiated a new broadcast deal with Disney and TNT, one in which the league insisted that streaming options be significantly expanded. In fact, 14% or more NBA games are now nationally televised on those networks, with streaming options that do not require cable.

While that sort of deal is to be applauded, it's admittedly fairly vanilla. Put more broadcasts up on streaming services. There's nothing too experimental about that. Especially compared with a new plan the NBA is kicking around for cheap streams of the last quarter of NBA games.

Now the NBA is testing another, obvious-when-you-think-about-it idea: letting fans watch the 4th quarter of a live, in-progress game for just 99 cents.

On Twitter, Vasu Kulkarni shared a screenshot of a notification sent by the NBA app. For less than a buck, he could hop in and stream the end of a game between the Miami Heat and Oklahoma City Thunder. The Verge has reached out to NBA Digital for more specifics on how many fans are being presented with this option. I haven’t seen other screenshots or instances of it, and it’s very possible that the price could change as the NBA tries to find a sweet spot. 99 cents seems like a good one, though. Presumably the usual annoyances with these things (i.e. blackouts for local teams) also apply here.

If those annoyances are indeed still in place with this option, it would be a massive mistake. The whole value in offering these cheap streaming options for the more thrilling moments of a basketball game -- the end of it -- is the ability to draw in the more casual fan to view more broadcasts. Cutting out the local teams, particularly when what's considered a "local team" is so tortured and laughable for so many markets, undercuts that value at the kneecap. Regardless, it's good to see a league with this much sway experimenting in this way.

According to Darren Rovell of ESPN, these experiments are unlikely to end merely with end-of-game sequences.

ESPN reporter Darren Rovell predicts that the NBA could turn micro-transactions into a “significant revenue stream” for fans who want to catch the pivotal ending moments of a game. It’s a tiny, tiny fraction of the price of a full League Pass subscription, so it’s a much easier sell for casual fans who would hesitate to fork out for the big package but have no issue paying 99 cents when they get a push notification about a close, high-stakes game. Silver also mentioned the possibility of these streams being offered when a player has a chance of breaking an all-time record or reaching other notable achievements.

As the Verge post notes, this is somewhat akin to the NFL's RedZone channel, but you pay for what you want and nothing else. Hopefully the antiquated barriers come down along with this experiment and hopefully we'll see more and more creative options put forth by the leagues as well. If nothing else, it should make some large cable providers start quaking, and that's always fun.

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Posted on Techdirt - 30 March 2018 @ 12:08pm

Michigan State University Reportedly Spent $500k To Monitor The Social Media Accounts Of Larry Nassar's Accusers And Journalists

from the money-poorly-spent dept

One of the largest stories of the past year has been the Larry Nassar story. Nassar, the now disgraced atheltic trainer for multiple entities, including USA Gymnastics and Michigan State University, has been accused by scores of women for sexual abuse and misconduct under the guise of his medical profession. Recently, Nassar's boss at Michigan State, William Strimpel, who was the university's dean of the osteopathic medical school, was himself charged with criminal sexual misconduct. Whatever is going on at Michigan State, it hasn't been good for some time.

One would imagine that in the wake of the allegations and, in the case of Nassar, conviction, the school would be getting its collective shit together. Instead, MSU has taken on the project of obfuscating what occurred under the school's watch and, reportedly, paying half-a-million dollars to have an outside firm monitor the social media accounts of Nassar's accusers and the journalists that have been and are covering the story.

MSU hired the New York-based public relations firm Weber Shandwick to do more 1,440 hours of work. “The firm billed for work done by 18 different employees, whose hourly rates ranged from $200 to $600 per hour. Five of those employees billed MSU for more than $50,000, including one who billed for $96,900 and another who billed for $120,893,” according to the article.

During Nassar's trial, MSU employees as high up as former school president Lou Anna K. Simon were furnished with regular reports on what his victims and journalists were saying on their social media accounts. The reports also went into some depth about which stories and which victims were gaining the most eyeballs in the public. I suppose the idea here was to allow the school to get out ahead of reports that were beginning to gain traction, though, as the Deadspin post notes, the idea that any of this should cost a school $500k is rather absurd.

That’s a lot of money to spend to find out that when your institution is found to have harbored and enabled a serial sexual predator for decades, people are going to write some mean things about you on Twitter.

Meanwhile, news of this surveillance of the victims puts the school on poor footing should it want to make any attempt to rehabilitate its image. It seems obvious that both the time and money spent on all of this could have been better spent making sure monsters like Nassar are never allowed to work at the school again, while also making reparations for the abuse that has already occurred under its watch.

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Posted on Techdirt - 29 March 2018 @ 1:23pm

Court Tosses Dennis Prager's Silly Lawsuit Against YouTube, Refuses His Request For Preliminary Injunction

from the insufficient-everything dept

You will recall that conservative commentator Dennis Prager sued YouTube late last year because he didn't like how the site administered its "restricted mode" relating to several of his Prager University videos. The whole lawsuit was a mess to begin with, resting on Prager's claims that YouTube violated federal and state laws by silencing his speech as a conservative and falsely advertising YouTube as place for free and open speech. At the same time that YouTube asked the court to toss this canard, Prager sought a preliminary injunction to keep YouTube from operating its own site as it saw fit. In support of its petition to dismiss the suit, YouTube's Alice Wu offered the court a declaration that more or less showed every single one of Prager's claims, especially his central claim of censorship of conservatives, to be as wrong as it possibly could be.

Now, mere weeks later, the court has agreed, penning a full-throated dismissal order that essentially takes Prager's legal team to task for failing to make anything resembling a valid claim before the court. We'll start with the court's response to Prager's First Amendment claims, which he makes by stating that YouTube is somehow a legally public forum, rather than a privately run website.

In their motion to dismiss, Defendants argue that Plaintiff’s complaint should be dismissed because (1) the Communications Decency Act (“CDA”), 47 U.S.C. § 230(c), bars all of Plaintiff’s causes of action except Plaintiff’s First Amendment claim, Mot. at 8–13; (2) the First Amendment bars all of Plaintiff’s causes of action, id. at 13–15; and (3) Plaintiff’s complaint fails to sufficiently plead any causes of action. Id. at 15–24. The Court finds that Plaintiff’s complaint should be dismissed for failure to state any federal claims, and therefore declines to address Defendants’ other arguments for dismissal. The Court first addresses Plaintiff’s federal causes of action, and then addresses together Plaintiff’s state law claims.

And further, on the matter of whether YouTube is a public forum under the jurisdiction of the First Amendment.

Plaintiff does not point to any persuasive authority to support the notion that Defendants, by creating a “video-sharing website” and subsequently restricting access to certain videos that are uploaded on that website, Compl. ¶¶ 35, 41–46, have somehow engaged in one of the “very few” functions that were traditionally “exclusively reserved to the State.”

That "very few" functions precedent is backed by caselaw and the court points out that none of it applies to an entity like YouTube or to the services it provides. The court therefore says this is not a valid claim. The court then moves on to Prager's claims that YouTube violated the Lanham Act by falsely advertising the site as a platform for open and diverse speech.

Although the section of Plaintiff’s complaint dedicated to the Lanham Act does not identify any specific representations made by Defendants, see Compl. ¶¶ 115–19, Plaintiff’s opposition to Defendants’ motion to dismiss points to a handful of discrete alleged instances of false advertising by Defendants. Opp. at 24. In particular, Plaintiff identifies (1) YouTube’s suggestion that some of Plaintiff’s videos are “inappropriate”; (2) YouTube’s policies and guidelines for regulating video content; (3) YouTube’s statement that “voices matter” and that YouTube is “committed to fostering a community where everyone’s voice can be heard”; (4) YouTube’s statement on its “Official Blog” that YouTube’s “mission” is to “give people a voice” in a “place to express yourself” and in a “community where everyone’s voice can be heard,” and that YouTube is “one of the largest and most diverse collections of self-expression in history” that gives “people opportunities to share their voice and talent no matter where they are from or what their age or point of view”; and (5) Defendants’ representations in the terms of the agreements between Plaintiff and Defendants that Defendants seek to “help you grow,” “discover what works best for you,” and “giv[e] you tools, insights and best practices for using your voice and videos.” Id. (citing Compl. ¶¶ 3, 11, 14, 28, 104, 112). The Court agrees with Defendants that Plaintiff has failed to allege sufficient facts to support a Lanham Act false advertising claim based on any of these representations.

The ruling goes on to dismantle each of the specific claims Prager eventually made in opposition to YouTube's motion to dismiss. Frankly, it's a pretty thorough drubbing of whoever put together Prager's legal documents and claims.

Finally, after all of that, the court summarily dismisses Prager's claims under California state law because all of Prager's other claims have been dismissed earlier in the order. When the plaintiff in a case like this fails in his or her federal claims completely, the federal court typically refuses to consider the state claims. The court explains that's what it is doing in this order. It subsequently refuses to issue the preliminary injunction, making Prager the loser on every attempt he made before the court.

For the foregoing reasons, the Court GRANTS Defendants’ motion to dismiss Plaintiff’s federal causes of action with leave to amend, DISMISSES Plaintiff’s state law claims with leave to amend, and DENIES Plaintiff’s motion for a preliminary injunction without prejudice. Should Plaintiff elect to file an amended complaint curing the deficiencies identified herein, Plaintiff shall do so within thirty days of this Order. Failure to meet this thirty-day deadline or failure to cure the deficiencies identified herein will result in a dismissal with prejudice of the deficient claims. Plaintiff may not add new causes of action or parties without leave of the Court or stipulation of the parties pursuant to Federal Rule of Civil Procedure 15. IT IS SO ORDERED.

Now, Prager can go and write up a better lawsuit and try all of this again within 30 days if he chooses, but I wouldn't recommend it. There is no YouTube liberal conspiracy against Prager and his conservative ilk. His facts are wrong, his insinuations are not true about whether liberals or conservatives have videos more often placed in the restricted mode, and if he insists on wasting the court's time with any of this any further, then I will insist that we all agree that he's a legal dunce.


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Posted on Techdirt - 29 March 2018 @ 10:44am

RIAA Reports Music Industry Is Making All The Money Just As New Study Says Piracy Has Never Been More Widespread

from the hmmm dept

As much conversation as gets logged on the topic of copyright infringement, or piracy, you may not have noticed that there are not that many arguments against piracy. Certainly there's a volume of voices, particularly those coming from the entertainment industry, but those voices are typically making only one of two claims. The first claim is that piracy is morally wrong. This claim typically devolves into something along the lines of "but piracy is theft", and relies on the intuitive notion that downloading, say, a song hurts the creator of that song by depriving them of income. If there was no income deprivation, there would be no moral wrong. The second claim skips the first part of that equation and simply asserts that piracy harms the entertainment or content industries, depriving them of the income they need in order to create more content. You will notice that, ultimately, there is actually only one argument against piracy: its effect on the income of the content producers.

With as much as entertainment advocacy groups like to pantomime Chicken Little on this topic, you might be surprised to learn that the RIAA recently came out with its 2017 Year-End industry report, in which it gleefully notes both how much money the music industry is making and, importantly, how that revenue is growing rather than shrinking.

In 2017 revenues from recorded music in the United States increased 16.5% at estimated retail value to $8.7 billion, continuing the growth from the previous year. At wholesale, revenues grew 12.6% to $5.9 billion. These increases were driven by more than 35 million paid subscriptions, a 56% growth year-over-year. This is the first time since 1999 that U.S. music revenues grew materially for two years in a row, while gaps in core rights continue to distort the marketplace and deprive recording artists and songwriters of the royalties they deserve.

So, we have two years of growth in music industry revenue in America, even as the RIAA is also still complaining about market distortions and artists not getting enough royalties. The full report notes that streaming revenue is way up, digital downloads are down, and physical product purchase revenue has been mostly flat. Note that this is all for the American market. Nowhere in the full report does it flesh out exactly what the RIAA's complaints about artist compensation are based on, although piracy/infringement is almost certainly the answer.

The problem for that argument, which is again the only real argument for focusing on piracy as some great evil, is that another report just came out from MUSO, a group that tracks piracy, indicating that piracy is more popular in the public right now than it ever has been.

Piracy tracking outfit MUSO has documented the piracy landscape with data from tens of thousands of the largest global piracy sites. In its latest report, the company recorded more than 300 billion visits to pirate sites last year alone. This is an increase of 1.6 percent compared to 2016.

More than half of all these visits (53%) are going to streaming sites, making that the most popular piracy tool. Torrent sites and direct download portals still have a significant user base, but follow at a respectable distance. Most of the pirate visits came from the United States, followed by India and Brazil. Despite the various pirate site blockades, the UK also secured a spot in the top ten, ranked at the bottom with nine billion visits.

A couple of things to note in the report's details. Again, America had the highest instances of piracy by far, nearly twice as much as India, which came in third. Also note that, while streaming sites for television was the most popular method of piracy in the public, pirating music came in second. So, we have two data points. The RIAA says that the American music industry revenue has risen two years running. MUSO says that Americans pirate more than anyone else, that they often pirate music, and that piracy levels are at the zenith and rising.

The "piracy hurts the music industry" mantra just took a credibility hit, no?

The explanation for this isn't difficult to understand. Those that pirate music also buy music, go to concerts, and support the bands and music industry through all kinds of other purchases. They also likely subscribe to streaming services and pirate what they can't find there, or what they discover there. The point is that music pirates are often fans of music and may purchase along with pirating.

In other words, the simplistic attack mantras from the RIAA don't make a great deal of sense alongside the RIAA reporting that the music industry is making gobs of money, and increasingly so.

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Posted on Techdirt - 29 March 2018 @ 3:24am

Aussie Rightsholders Look To Feature Creep Site-Blocking To Search-Blocking, Because Of Course They Are

from the not-a-bug dept

When it comes to censorship in the name of copyright, we've made the point time and again that opening this door an inch will cause supporters of censorship to try to barge through and open it all the way. Inevitably, when a population tries to satiate the entertainment industry by giving them just a little censorship, that industry will ask for more and more and more.

A good example of this can be seen right now in Australia. Like far too many countries, Australia began a site-blocking practice three or so years ago. Currently, the Department of Commnications is asking for feedback on the effectiveness of this practice as well as feedback on each step in the process itself. The way it works in Australia is that rightsholders have to get an initial injunction which then winds its way to a site being blocked as a "pirate site." Well, for the largest entertainment industry groups in Australia, the feedback is essentially, "This is great, let's censor even more!"

The most aggressive submissions come from the two companies that have made the most use of the blocking scheme so far – movie group Village Roadshow and TV provider Foxtel. Together the companies have had dozens of sites blocked in Australia by local ISPs but now they want the blocking regime expanded to online service platforms too. Indeed, in the Roadshow and Foxtel submissions combined, Google is mentioned no less than 29 times as being part of the piracy problem Down Under.

“Village Roadshow strongly supported the original site blocking legislation and now we strongly support strengthening it,” Village Roadshow co-chief Graham Burke writes. “With all major pirate sites blocked in Australia, the front door of the department store is shut. However, pirates, facilitated by Google and other search engines, are circumventing Australian Laws and Courts and opening a huge back door. Australia needs the power to require Google and other search engines to take reasonable steps to stop facilitating searches which lead to pirate sites.”

In case it isn't obvious, these attacks on Google are plainly absurd. Google is a search company and it makes its money by returning the best results for what people are searching. Whether that is infringing content or not doesn't matter to Google. Only the usefulness of its search results matters. It's also not clear why, if the site-blocking through ISPs is as effective as Village Roadshow says, they should also need Google to delist so-called "pirate sites." Aren't those sites being blocked by ISPs? If a Google search can somehow defeat the site-blocking, then the site-blocking isn't nearly as effective as advertised.

But Village Roadshow doubles down with a hilariously wrong analogy later in its submission.

“The analogy for Google is a Westfield Shopping Centre knowing they are getting big traffic to the center from a store that is using stolen goods to lure people and then robbing them!” he writes.

I've never had pain from my eyes rolling so hard until reading that sentence. Still, the people in Australia should be paying attention, because what Village Roadshow and its cohorts want is to extend the censoring of sites it deems to be "pirate sites" to "intermediary service providers", which means search companies and social media companies Suddenly, the sharing tool that is the internet and social media will live at the pleasure of entertainment industries that have never, ever, ever been able to accurately determine what is a "pirate site" and what is just an otherwise useful site with some users that are infringing on some copyrights.

It's also worth noting that search companies had already voluntarily agreed to demote infringing sites in search results. Foxtel, the other large entertainment industry player in Australia, noted as much in its own comment submission, before going on to hand-wave it away as insufficient.

Village Roadshow, Foxtel doesn’t appear to be content with demotion – blocking and delisting is the aim.

“Foxtel strongly believes that extending the site blocking powers to search engines so that they must remove copyright infringing sites from search results would have a substantial impact on reducing piracy in Australia,” the company says.

“Search engines already remove URLs from site indexes to comply with local laws and product community standards and therefore, technologically Foxtel understands it would be a relatively simple exercise for search engines to comply with Australian blocking orders.”

Creep, creep, creep. That is how this works. If you open the door an inch, they will come barging through. And it's worth repeating again that the entertainment industry has never been able to be accurate in its accusations. So what Village Roadshow and Foxtel are really asking for is broad power to censor sites from most of the common internet platforms and search engines that most people use when they have not shown the ability to treat that kind of responsibility with care. And, indeed, they actually want the bar to be lowered as to what is a "pirate site."

While none of the above is particularly new in the global scheme of things, it’s interesting to note that even when agreements are reached and new legislation is formed, rightsholders always keep pushing for more.

That’s clearly highlighted in the Foxtel submission when the company says that the threshold for determining a pirate site should be lowered. Currently, a site must have a “primary purpose” to “infringe, or to facilitate the infringement” of copyright. Foxtel sees this as being too high.

So a site should be considered a pirate site even if the purpose of the site isn't to be a pirate site? Cool. What could possibly go wrong with that?

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Posted on Techdirt - 27 March 2018 @ 7:29pm

Macy's, The Department Store Chain, Forces A Tiny Hair Salon In Scotland To Change Its Name

from the hair-apparent dept

Macy's, the enormous retail company famous for its enormous department stores, has been featured in our pages before throwing its weight around over trademark concerns. If you had thought that the company has ceased its trademark-bullying ways, a recent report featuring a tiny hair salon in Scotland named after the founding couple's daughter will disabuse you of this notion.

Jon and Kirsty Nelson named their West Lothian business Macys after their daughter, little imaging they would shortly face the wrath of corporate America. The couple received a letter from a London law firm acting on behalf of Cincinnati-based Macy’s, alleging trademark infringement.

Macy’s is worth £6bn, has almost 900 stores, stocks products by Ralph Lauren, Hugo Boss, and Calvin Klein, and sells mink fur coats for £8,500. Their Bathgate “rivals”, Macys Lounge, offer female customers a cut and blowdry for £30 while men can get a cut for £9, or £13 if they want a shampoo.

Now, it should be noted that Macy's department stores do include spas that provide hair and beauty services. The company does have valid trademark for these services as well. All that being said, the idea that there would be any true confusion in the marketplace between these department store spas and a tiny storefront salon in Bathgate is plainly absurd. To drive this point home, the nearest Macy's department store is several thousand miles away.

But, as we've mentioned many times before, trademark bullying works. The couple behind the salon announced recently that they would change the name of their business. Though, for those that appreciate a dash of trolling in their lives, the change the couple made might not be exactly what Macy's had in mind.

“ We wanted to fight this battle, David and Goliath style, but we did not have the funding or resources available to do so and were somewhat backed into a corner to ‘angrily’ agree to their terms of changing our name.

“We give you : MACIZ Lounge.

“This will be our new trading name from March 2018 going forward. It is still similar to what we currently use.”

And, so, the full weight of the Macy's legal efforts managed to get a couple of letters changed, and that's about it. The pronunciation for the business remains the same. Most of the name remains. Don't get me wrong, this is a massive pain in the ass that costs very real money, and a situation the couple should never have had to go through, but the results of the trademark bullying are rather beautifully silly.

Not that patrons of the salon are laughing.

Social media users wanted to show their support for the salon and were quick to show their outrage at the American outfit.

Erin Thomson said: “And here was me thinking you guys were a branch of Macy’s famous NY department store opening in Bathgate and specialising in haircuts. Silly me. Maciz Lounge sounds fab”

Helen Wilson posted: “It’s an absolute disgrace a huge organisation can victimise a small family business.”

Jamie Cameron commented: “Clearly they know you guys are on the road to world domination and are terrified. Stuff them guys.”

Macy's may not care about these responses, given that, again, these are not even potential customers, since there are no Macy's department stores anywhere nearby. Still, from a branding perspective, this isn't a great way to make the brand friends around the globe.

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Posted on Techdirt - 27 March 2018 @ 12:13pm

Bonkers, Unconstitutional Rhode Island Porn Tax Law Faces Backlash From Elizabeth Smart Over Use Of Her Name

from the revictimizing-again-and-again dept

It may be time to do some tests of Rhode Island water for heavy metals, as the state is experiencing a spasm of stupid when it comes to lawmaking. You will recall that there have been two recent proposals for new taxes in Rhode Island, one that would target video games rated "Mature" or higher, and one taxing the removal of porn-blocking software from any internet connected device sold in the state. If both sound almost hilariously unconstitutional to you, don't worry, they are. These laws likely won't pass and, if they do, the Supreme Court will certainly look upon them the same way a professional golfer looks at a two-inch putt. That the work of the anti-porn law is largely that of Chris Sevier, or Mark Sevier when the mood strikes him, who once tried to marry his own computer in protest of gay marriage and has been charged with stalking people twice, gives rise to one question: why are legislators in several states paying any of this any attention at all?

Sadly, it's an open question. Mostly unreported in the past is that Sevier is pitching this law, formally the Human Trafficking and Child Exploitation Prevention Act, by slapping Elizabeth Smart's name all over it and promoting it as the Elizabeth Smart Law. Smart, should you not know, was kidnapped when she was a teenager and forced by her captor to do all sorts of inhuman things, including the forced watching of pornography. Smart now often speaks about the harm of some pornography in some situations for some people. What she has not done, apparently, is consented to have her name used to push this particular bill in Rhode Island.

Smart, who was kidnapped from her Utah home as a teenager in 2002, sent a cease-and-desist letter to demand her name be removed from it. And the National Center on Sexual Exploitation, an anti-pornography advocacy group, demanded last year that the man behind the legislation, Chris Sevier, stop claiming it supported his work.

Sevier said he chose Smart's name because she has spoken about the negative effects of pornography, including saying that pornography during her captivity "made my living hell worse."

After being told by AP earlier this month that Smart's lawyer was sending a cease-and-desist letter, Sevier said the name "Elizabeth Smart Law" was an "offhand name" that had been given to the legislation by lawmakers. The bill is also being promoted as the Human Trafficking and Child Exploitation Prevention Act.

Cute, but Sevier's site still has Elizabeth Smart's name slapped across the top of his website he's using to push the bill at the time of this writing. Regardless of who came up with the idea to use her name, Sevier has used it, is using it, and by all accounts isn't intending to stop using it anytime soon.

Asked if he would take her name off the site, Sevier wouldn't say.

"It's not that we will take it down or won't take it down," he said. "It's irrelevant."

And, yet, not irrelevant to the person who's name Sevier is using so brazenly. Let's not forget that Smart is herself a victim of horrible, horrible crimes. She has since made a job of advocating for child safety and also contributes to news organizations. Whatever you might think of her stances, she is a smart, courageous woman who has tried to make something meaningful out of an absolutely awful deck of cards she was dealt. This pernicious continued use of her name should certainly qualify as re-victimization.

So, again, why are legislators working with this clown?

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Posted on Techdirt - 26 March 2018 @ 3:36pm

Founder Of Fan-Subtitle Site 'Undertexter' Loses Copyright Infringement Appeal

from the sinnesjuk dept

Just a quick update on the current craziness going on in the Swedish court system. In the middle of 2017, we wrote about the Swedish authorities raiding the offices of Undertexter, a site that provides fan-created subtitles of movies. Many people were confused by this, but the film industry has long branded fan-made subtitles as contributors to piracy, allowing people in foreign countries to download films and append the subtitles to watch them, rather than buying the localized version. The industry also argues that these subtitles are themselves copyright infringement, as they essentially reproduce the film's script in another language.

Founder Eugen Archy was convicted of copyright infringement. Ever the fighter, he appealed, but now we learn that Archy has lost his appeal as well.

On appeal, Archy agreed that he was the person behind Undertexter but disputed that the subtitle files uploaded to his site infringed on the plaintiffs’ copyrights, arguing they were creative works in their own right.

While to an extent that may have been the case, the Court found that the translations themselves depended on the rights connected to the original work, which were entirely held by the relevant copyright holders. While paraphrasing and parody might be allowed, pure translations are completely covered by the rights in the original and cannot be seen as new and independent works, the Court found.

The Svea Hovrätt also found that Archy acted intentionally, noting that in addition to administering the site and doing some translating work himself, it was “inconceivable” that he did not know that the subtitles made available related to copyrighted dialog found in movies.

Now, the good news is that losing this appeal only results in his original conviction and punishment of probation and a $26,000 fine. All told, that isn't the craziest punishment we've seen for copyright infringement. Those caveats aside, let's all remember that Undertexter gave away the fan-translations it hosted. The site didn't sell them. They were offered for free. And for the crime of providing free translations in markets that are often underserved by Hollywood, he now has a copyright infringement conviction on his record and a five-figure bill to pay.

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