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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 - 2 May 2016 @ 3:44pm

University Educates Student On How Everyone Will Abuse Trademark Law

from the book-learnin dept

Institutions for higher education are no strangers to abusing trademark law, I suppose, what with Harvard one time looking to lock up all kinds of language, or the University of North Dakota bullying artists over a parody version of its defunct and abandoned sports team logo. But it sure seems to feel more egregious for a learning institution to blatantly bullshit one of its own students through trademark threats, which is exactly what Dixie State University did when it claimed a student's parody of its sports logo was trademark infringement.

Dixie State University’s new logo has already created some controversy, but not because of the mascot itself. Rather, it was a Facebook post during last week’s 4/20 cannabis culture holiday that had school authorities scrambling to stop what they said was trademark infringement. DSU student Ridley Larsen, who is currently taking a semester off, had used a copy of the new Trailblazers mascot and edited it to show a marijuana joint held in the buffalo’s mouth and a play on the words by changing “Trailblazers” to “Trailblaze It” with 4/20 printed above the wording.

And here is the student-artist's rendition in all of its hazy, smokey glory.

Not exactly Rembrandt, but then April 20th isn't an art holiday, I suppose. Anyway, this seemingly innocent, if childish, rendition of the school's logo was posted to Larsen's Facebook page as a joke. From there, a handful of people shared it and a decent number of people saw it. Apparently some folks within the school came across it one way or another as well, because they then completely lost their minds and pulled out the threat-hammer.

DSU official then sent Larsen private messages on Facebook and through his Dixie email account letting him know he had infringed on the school’s trademark.

“It was just a courtesy thing. It wasn’t an official message from our legal counsel or anything like that,” Hall said. “It wasn’t necessarily the content, and obviously we’re good with free speech and that wasn’t our concern. It was just the trademark issue.”
The suggestion that this was all done as a courtesy is, to put it mildly, bison shit. The message demanded the image be taken down on all forms of social media. If Larsen didn't comply, the message ensured him that his "trademark infringement" would be reported to the school's lawyers, with the obvious legal threat implied. Larsen did as instructed and no further action was taken by the school.

But let's not gloss over the fact that the threat is all based on lies used to bully a student at the school into the action it wanted. There is absolutely zero trademark infringement going on here. First, the image was not used in any kind of commercial way. Second, it is a clear case of parody of the original logo. And, finally, any school touting its own interest in free speech had damned well better have a better explanation for bullying and lying to one of its own students beyond, "This is just a trademark thing." No it isn't, it never was, and anyone purporting to have enough knowledge to even make such a claim would know as much.

Yet, as far as an education goes, Larsen certainly is getting one as far as trademark law and its common use as a bullying tactic is concerned. Welcome to the adult world, sir. It's a silly, villainous place, I'm afraid.

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Posted on Techdirt - 2 May 2016 @ 6:21am

Facebook Has Lost The War It Declared On Fake News

from the fakey-fakey dept

Fake news stories are a scourge. Something different from parody news folks such as The Onion, there are outfits out there that produce false news stories simply to get clickthroughs and generate advertising revenue. And it isn't just a couple of your Facebook friends and that weird uncle of yours that gets fooled by these things, even incredibly handsome and massively-intelligent writers such as myself are capable of getting completely misled into believing that a bullshit news story is real.

Facebook is generally seen as a key multiplier in this false force of non-news, which is probably what led the social media giant to declare war on fake news sites a year or so back. So how'd that go? Well, the results as analyzed over at Buzzfeed seems to suggest that Facebook has either lost this war it declared or is losing it badly enough that it might as well give it up.

To gauge Facebook’s progress in its fight, BuzzFeed News examined data across thousands of posts published to the fake news sites’ Facebook pages, and found decidedly mixed results. While average engagements (likes + shares + comments) per post fell from 972.7 in January 2015 to 434.78 in December 2015, they jumped to 827.8 in January 2016 and a whopping 1,304.7 in February.

Some of the posts on the fake news sites’ pages went extremely viral many months after Facebook announced its crackdown. In August, for instance, an Empire News story reporting that Boston Marathon bombing suspect Dzhokhar Tsarnaev sustained serious injuries in prison received more than 240,000 likes, 43,000 shares, and 28,000 comments on its Facebook page. The incident was pure fiction, but still spread like wildfire on the platform. An even less believable September post about a fatal gang war sparked by the “Blood” moon was shared over 22,000 times from the Facebook page of Huzlers, another fake news site.
So, how did this war go so wrong for Facebook? Well, to start, it relied heavily on user-submitted notifications that a link or site was a fake news site. Sounds great, as aggregating feedback has worked quite well in other arenas. For this, however, it was doomed from the start. The purpose of fake news sites is, after all, to fool people, and fooled people are obviously not reporting the links as fake. Even when a reader manages to determine eventually that a link was a fake news post at a later time, perhaps after sharing it and having comments proving it false, how many of those people then take steps to report the link? Not enough, clearly, as the fake news scourge marches on.

Another layer of the problem appears to be the faith and trust the general public puts into some famous people they are following, who have also been fooled with startling regularity.
Take D.L. Hughley, for example. The comedian, whose page is liked by more than 1.7 million people, showed up twice in the Huzlers logs. One fictitious Huzlers story he posted, about Magic Johnson donating blood, garnered more than 10,000 shares from his page. Hughley, who did not respond to BuzzFeed News’ request for comment, also shared four National Report links in 2015.

Radio stations also frequently post fake news. The Florida-based 93XFM was one of a number of radio stations BuzzFeed News discovered sharing Huzlers posts in 2015. Asked about one April post linking to a Huzlers story about a woman smoking PCP and chewing off her boyfriend’s penis, a 93XFM DJ named Sadie explained that fact-checking Facebook posts isn’t exactly a high priority.
In other words, people and organizations that the public assumes to be credible sources of information are sharing these fake news articles, and the public turns off their collective brains and assumes them to be true. After all, if we can't trust D.L. Hughley then, really, who can we trust? But when even major outlets such as the New York Times have included links in its posts to The National Report, do we really expect people to cast a wary eye towards such an established news peddler?

Well, we should, because the ultimate problem here are the equal parts of a polarized American public coupled with a terrifying level of credulity. Many of these fake news pieces contain headlines for stories that some people want to believe, typically for ideological reasons. This is why a family party recently saw me trying to explain to my grandmother that, no, Michelle Obama probably does not in fact have a penis. That's a true story, friends, and it stemmed from a fake news article. The willingness to believe such a thing is extreme, certainly, but stories of the Boston Bomber getting beaten in prison fuel the same desire for such a story to be true.

The war is lost. Fake news goes on unabated. Long live Michelle Obama's penis.

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Posted on Techdirt - 28 April 2016 @ 3:36pm

Annoying Windows 10 Update Request Highlights Its Annoying-Ness On Live Weather Broadcast

from the ten-percent-chance-of-hilarious dept

Since its launch, Windows 10 has received its fair share of criticism, mostly revolving around the very valid privacy concerns that the megalithic company has chosen to shrug off as mere noise from the peanut gallery. Now, I have more than one machine at home, and I have upgraded some of them and have chosen not to upgrade others. Because of this, I am victim of Microsoft's quite regular insistence that I upgrade everything I own to Windows 10, which presents itself in the form of a popup. This popup tells me that Microsoft thinks it knows what I should do better than I do and offers me two glorious options: upgrade to 10 immediately or schedule the upgrade to run at a different time in the future. Closing the popup satisfies it...for a while. Then it pops up again, because there's no option to tell Microsoft to boil its new operating system in water and screw off.

But what's a minor annoyance for me can be something altogether different for others. Say, for instance, a live newscast just trying to give its viewers the weather.

Yes, the annoyance that is this popup gets the spotlight treatment on live television, successfully sending the weather forecast askew as it interrupts the broadcast. Is it a funny little occurrence? You betcha. Does meteorologist Metinka Slater deal with the whole thing in stride? Mostly, I guess. But it's the obviously planned lack of options Microsoft's request presents that should piss people off here.

As always the annoying window offered two choices — ‘Upgrade now’, or ‘Start download, upgrade later’. Slater wisely chose neither option and switched to another video source instead.
The point is that Microsoft's bull-headed attempt to push its latest operating system on the public wouldn't be so blatant if it simply allowed people, including newsrooms, to shut it the hell up. But that truly is probably asking too much.

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Posted on Techdirt - 28 April 2016 @ 2:06pm

Game Critic Keeps YouTube Vids Ad-Free By Creating ContentID Feeding Frenzy

from the sharks-in-the-water dept

You should know by now that YouTube's ContentID system is a horrible mess. This system, which allows purported intellectual property owners to claim other people's uploads as containing their content, and then allowing those purported owners to either take the videos down or monetize them for themselves, is so rife with abuse, trolls, and mistakes that it's a wonder anyone at any point thought this was an idea that could work. Lost in all of this bowing towards intellectual property owners has bred some creative methods for getting around ContentID abuse, but it's still a problem. A problem particularly challenging in the video game reviews space on YouTube, where entirely too many game studios think that using ContentID to flag game reviews is a practice worth repeating.

But one game reviewer, Jim Sterling, decided to test out a way to keep his videos advertising-free. The method? Include all kinds of previously flagged content in his new videos from different IP owners and set them all into a ContentID war with one another.

Earlier this week, game critic Jim Sterling uploaded an episode of his Jimquisition series, where he skewers the recently released Wii U game Star Fox Zero. The entire episode is worth a watch based on Sterling's well-reasoned arguments. But the thing that really sets it apart is a revelation near the end of the video, where Sterling explains why he makes such ample use of footage that is completely unrelated to what he actually discusses throughout the video.

"You may have noticed this week's video had footage from Metal Gear Solid V, Grand Theft Auto V, and Beyond: Two Souls in it," Sterling said. "Now, there's a reason for that. The reason is Nintendo. Because I'm talking about a Nintendo game this week, I've used Nintendo game footage, and that means Nintendo will attempt to monetize this video even though the point of the Jimquisition is to be ad-free, thanks to your lovely help on Patreon."

But by including game footage that had been previously flagged through ContentID by other studios, particularly studios known to not try to monetize game reviews, he created a ContentID race between the different studios. The result?
"I can confirm it works," Jim Sterling said over email. "It's worked several times before. WMG tried to monetize the video for the Erasure music, but couldn't because Nintendo and Take-Two had set their ContentID in this particular case to Not Monetized."
It's like beating cancer by contracting herpes and having the herpes eat the cancer... or something like that. Look, I didn't go to medical school, alright? The loophole in the ContentID system is that it's not like all kinds of people can flag a video for monetization. It appears to be a first-to-flag-wins sort of scenario. So, just include some completely unrelated footage from a studio that is known to flag reviews as "Not Monetized" and the content remains ad-free.

It's clever, to be sure, but some of us long for the day when such workarounds aren't needed just to produce a simple video game review.

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Posted on Techdirt - 28 April 2016 @ 3:24am

Blizzard Pretends IP Made It Kill Fan Server

from the stop-lying dept

Blizzard, maker of World of Warcraft, has a long and dubious history when it comes to trying to twist intellectual property laws and requirements to be whatever they want it to be at the time. These instances have mostly revolved around using copyright in an attempt to stop people who use cheat-bots to play the company's games, as well as those who make the bots. The actual tactics Blizzard uses in those cases, which chiefly revolve around twisting copyright into knots as never intended, can get lost because of the hatred most players have for those who game the gaming system.

But it's a different story when it comes to Nostalrius, which was the name for fan-servers offering up a "vanilla" version of World of Warcraft to gamers who wanted to play the game without any of the expansion packs that Blizzard has released. Serving thousands of individual gamers, Blizzard decided the fan-server was a threat to its business and used trademark law to threaten those running it into shutting the whole thing down. Smart or not, Blizzard was within its rights to do this. Its explanation as to why, however, is absolutely dripping with bullshit and needs to be called out.

We'll start with the now common refrain the company offered as to why it shut down the server, responding to public backlash for having done so.

Why not just let Nostalrius continue the way it was? The honest answer is, failure to protect against intellectual property infringement would damage Blizzard’s rights. This applies to anything that uses WoW’s IP, including unofficial servers. And while we’ve looked into the possibility – there is not a clear legal path to protect Blizzard’s IP and grant an operating license to a pirate server.
It's difficult to see how this could possibly be true. Policing the trademark is indeed a requirement within trademark laws generally, but policing doesn't offer a dichotomy between choosing to give up the mark or shutting the fan server down. There are other avenues that could have been explored, such as granting an inexpensive license to Nostalrius, which would allow them to continue as an official arm of Blizzard's IP. That satisfies the requirement and doesn't result in pissing off thousands of Blizzard fans. Keep in mind that Blizzard itself does not offer a similar vanilla version of WoW such as this. Working with the folks behind Nostalrius, it could have claimed to have done so through a third party. Problem solved. Why is it that those that use intellectual property so heavily, assets which are often designed to spur creativity, are the least creative when it comes to how to enforce that intellectual property?

As for why Blizzard doesn't just offer up a similar service for gamers? Well:
We explored options for developing classic servers and none could be executed without great difficulty. If we could push a button and all of this would be created, we would. However, there are tremendous operational challenges to integrating classic servers, not to mention the ongoing support of multiple live versions for every aspect of WoW.
So, Blizzard, a rather large company, couldn't figure out how to accomplish what a single fan server did? Please. And even if that were indeed true, why again not simply utilize what Nostalrius had already built and license it so that it was kosher? Why instead bring the legal hammer down and force the whole thing into shutdowns-ville?

Blizzard says they're in talks with the folks behind the fan server now that it's been shut down, but there was no reason to shut it down in the first place, aside from the misguided belief that pissing of your fans will get them to give you more money.

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Posted on Techdirt - 27 April 2016 @ 11:23pm

Priceline Throws A Fit And Sues USPTO For Not Granting Them Booking.com Trademark

from the generically-speaking dept

The Priceline Group has something of a history with intellectual property. Several years back, Jay Walker, Priceline's founder, appeared to have transitioned to becoming a full-blown patent troll. In the year's since, the company he once founded has been in something of a tussle with the USPTO over its attempt to register a trademark for "booking.com." The USPTO had initially approved of the mark, before reversing its own decision only weeks later due to "booking.com" being essentially descriptive. The Priceline Group appealed, but the appeals board upheld the rejection of the mark, affirming it as being descriptive.

You might have thought that this would be the end of the story. It's not. Priceline Group has now sued the USPTO over its rejection.

Given that Booking.com filed the trademark application as a “travel agency service,” Booking.com’s lawsuit, filed April 15 in federal court in Alexandria, Virginia, states “there is no evidence in the entire history of Booking.com’s use of its trademark that any consumers or users of travel agency services refer to such sites as ‘Booking.com’s.'”

A Booking.com-commissioned survey found that 75 percent of its users “recognize BOOKING.COM as a trademark, not a common name,” the suit states.
The commissioned survey, as you'd expect, concludes exactly what Priceline Group wants it to conclude. Still, that doesn't particularly change the nature or reasoning behind the USPTO's rejection. If I want to go about booking a hotel, "booking.com" is descriptive of the service that is being offered at the site. I'm struggling to see exactly what the argument from Priceline Group actually is here, because this one seems fairly easy to grasp.

The crux of this flailing by the company appears to be how much money its invested in transitioning its brand from Priceline to Booking.com.
Booking.com stated that it has invested enormous resources in advertising, for example, to spread its brand, which it has used since 2006. The Amsterdam-based Booking.com also stated that it has used the similar mark, Booking.NL, since 1997. Booking.com further chided the appeals panel for finding that BOOKING.COM had not become a distinctive brand among consumers. Booking.com’s lawsuit states that more than 2 million U.S. consumers signed up for its newsletter; it has more than 2.7 million Facebook “likes,” and almost “58,000 members of the relevant public were already ‘talking about’ Plaintiff’s brand on Facebook.com, higher than other accommodations and travel companies such as TRAVELOCITY, HOTELS.COM, TRAVELZOO AND ORBITZ.”
Much of which appears to demonstrate just how little the company relies on "booking.com" being a registered trademark in the first place. After all, it appears to be doing quite well in terms of reputation and traffic. And still none of this translates into an argument that the term "booking" isn't descriptive. I'm not sure why the company is spending so much time in the courts with this lawsuit rather than simply continuing the rack up the fees its business is generating.

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Posted on Techdirt - 26 April 2016 @ 3:30pm

Washington Redskins Appeal To SCOTUS On Trademark And Seek To Tie Their Case To That Of The Slants

from the teamwork dept

We've talked quite a bit around here about the saga of the Washington Redskins trademark cancellation. The long-held mark by the football team was cancelled after a group of Native Americans petitioned against it, claiming that the team's name was disparaging of their people. After I, dare I say, flip-flopped from cheering on the cancellation to having the team itself change my mind with a delightfully vulgar ruling, which demonstrated that the USPTO grants all kinds of marks on "offensive" terms, the current status of the trademark remains cancelled. Well, the team has now appealed to the US Supreme Court, not only seeking to have its own case reviewed, but also seeking to tie their case to another that we've talked a bit about, that of the Asian music group, The Slants.

The Slants' case is different from the Redskins', with the music group never getting its trademark registration, also based on the notion that its name was disparaging of the very group of people who comprised the band. An appeals court declared the refusal of the band's trademark applications was a First Amendment violation, rightly. But the USPTO has appealed to the Supreme Court. The Redskins, meanwhile, have petitioned the Supreme Court to take the two cases in tandem, arguing that the slight differences between the two would give the court a well-rounded look at the question of whether blocking disparaging trademarks was a constitutional violation.

If this Court grants certiorari in Tam, the Court should grant certiorari before judgment here to consider this case as an ideal and essential companion to Tam. This Court repeatedly has granted certiorari before judgment on those occasions, like this one, when the consideration of complementary companion cases offers the best way to decide important questions of constitutional law. As the government acknowledges,
this case squarely presents the same First Amendment question presented in Tam, a question of undeniable, fundamental national importance.
Tam is the short-form reference to The Slants' case. It's a savvy move by the team, seeking to pair its case with that of The Slants, who by any measure ought to be seen as deserving of more sympathy generally than the football club. After all, there does seem to be a difference in texture between a group of Asian people who want to call their band The Slants and a football team owned by Dan Schneider that wants to have an admittedly racist term for Native Americans serve as its team's name. But the question of law is certainly similar enough that I would agree it would make sense to review both cases together. Under the law, either refusing marks based on disparagement is constitutional or it isn't. There's no provision for who is applying for, or holding, the trademark in question.

Another reason it's a savvy move by the Redskins is that The Slants are coming into the SCOTUS review having won its appeal. In their case, it's the USPTO doing the appealing to SCOTUS. The team likely sees the band having an easier time getting a win before the court, having won on appeal, and is arguing that if The Slants' case holds up, then the cancellation of the team's trademark would make no sense.

And the Redskins are right. The team's name may be antiquated, but under the law, the government has no business applying its schizophrenic sense of morality to speech under the First Amendment.

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Posted on Techdirt - 25 April 2016 @ 11:23pm

Court Dismisses Trademark Suit Brought By Racetracks Against Gaming Company Referencing Historical Races

from the and-they're-off dept

We don't see nearly enough good trademark rulings, especially concerning Fair Use, that it's worthwhile in highlighting those that do occur. A nice recent example of this is a court tossing a trademark action started by several horse racing tracks against a gambling gaming company over the latter's use of track names. To get just a bit of background on this, Encore Racing Based Games makes electronic gambling games, including video slots and video poker. You see these types of machines in bars and restaurants wherever this type of gaming has become legal. But they also make a more innovative type of game in which players are presented with historical races and given the option to bet on them in a parimutuel fashion. The results, as best as I can tell, are based on the real-world outcomes of what I assume are obscure enough races that people aren't able to simply look up the results on their smartphones in whatever the allotted time is that they're given. Those results and races, naturally, include the names of the venues in which they were run.

Some well-known racetracks, such as Oak Lawn, sued over this, claiming trademark infringement. The court didn't buy it, apparently.

The Court dismissed the suit in its entirety, stating that Encore is “fully within their rights to describe where an event took place in their wagering system without implying the owners of the racetrack are sponsoring the game…[Encore is] protected by the fair use defense when describing where an event took place, even when the location described is most commonly conveyed using a registered trademark…Plaintiffs have failed to allege plausible facts which would justify this matter proceeding beyond this motion to dismiss…Therefore, the Court grants Defendants' motion and dismisses Plaintiffs' claims in their entirety.”
And it's quite easy to see the court's side of things in this case. The use of a trademark primarily to portray historical fact is certainly Fair Use. A race run at Oak Lawn can be described as having been as such. Still, I'm somewhat surprised at the ruling. These electronic games are a form of gambling, after all, and it isn't hard to understand why horse tracks, which are largely struggling nationally, wouldn't want potential bettors to find themselves betting on historical races in this way. Still, the fact that these games are dealing with matters of factual history means Fair Use does indeed come into play.

And, honestly, it's not like what Encore does is necessarily harmful to the tracks in the way they might think.
“We are grateful that the Court once again dismissed a lawsuit that would have severely limited growth in the historic horse racing market,” commented Encore President Jeremy Stein. “Encore is committed to the long term health of the racing and breeding industries, and we are proud that the Encore system and games continue to generate record handle numbers and significant revenue for the horse industry in Kentucky and Wyoming. Monday's ruling will allow us to continue growing while looking to bring historic horse racing revenue to new racing jurisdictions.”
For those of us that love horse racing, anything that brings more people into the fold is a good thing. If people playing these electronic games like them enough to then go out to the actual track, it's a building block for the industry. There's no substitute for going to a nice track, after all, least of all by sitting in front of a glowing machine.

Regardless, it's nice to see a court get a Fair Use question right.

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Posted on Techdirt - 22 April 2016 @ 12:45pm

New Strategy For Pro-Clinton SuperPAC: Argue With Everyone On Social Media

from the xkcd-becomes-real-life dept

We've seen a lot of silliness this political season, most of which I happily lay the blame for at the feet of what has to be the lamest group of candidates for President this esteemed country has ever seen. What these good-for-nothings have bred is a deeper level of hateful rhetoric and toxic partisanship than what was present already, which I didn't even think was possible. Yet they achieved it anyway, meaning that my social media feeds are overflowing with the kind of know-nothing memes and claims about all of the candidates that have me thinking about downing a bottle of rat poison just to make my brain stop hurting. Add to all of it the involvement of SuperPACs for all of these candidates, with their un-subtle messages and self-serving advertising, and it's enough to wonder if we should scrap this whole America thing and try to start something new from scratch.

Well, those two worlds are apparently colliding as we speak, with information about the new strategy being taken by one pro-Clinton SuperPAC coming to light.

Citing “lessons learned from online engagement with ‘Bernie Bros,’” a pro-Hillary Clinton Super PAC is pledging to spend $1 million to “push back against” users on Twitter, Facebook, Reddit and Instagram. Correct the Record’s “Barrier Breakers” project boasts in a press release that it has already “addressed more than 5,000 people that have personally attacked Hillary Clinton on Twitter.” The PAC released this on Thursday.
I'll get the obligatory XKCD out of the way, because there was simply no way not to include this comic in this post.

So, yeah, this Hillary PAC is spending a million dollars to apparently argue with people on social media, which is the kind of thing some of us do for free every day, because we're obsessive jack-wagons unable to let anyone anywhere say something stupid and think they got away with it. But I know that I'm almost certainly wasting my time, whereas this superPAC is boasting about all of this.

But why is it a time-waster? Well, because the kind of people saying the kinds of messages about Hillary Clinton that this campaign is likely to try to rebut aren't going to be swayed by paid web-trollers and their arguments, factual or otherwise.

“This explains why my inbox turned to cancer on Tuesday,” wrote user OKarizee. “Been a member of reddit for almost 4 years and never experienced anything like it. In fact, in all my years on the internet I’ve never experienced anything like it.”
So the targeted rebuttal is deemed to be "cancer." Victory?

More interesting is that the PAC in question, Correct the Record, claims it is coordinating directly with the Clinton campaign in doing all of this. And it claims that this is all perfectly legal, despite the infamous Citizens United ruling resting on the claim that PACs are private interests and do not coordinate with the campaigns of politicians. What logic is Correct the Record relying on in claiming that its coordinating is legal? Well, these rebuttals aren't paid spots, so campaign finance rules don't apply.
Due to FEC loopholes, the Sunlight Foundation’s Libby Watson found this year that Correct the Record can openly coordinate with Clinton’s campaign, despite rules that typically disallow political campaigns from working directly with PACs.

“SuperPACs aren’t supposed to coordinate with candidates. The whole reasoning behind (Supreme Court decision) Citizens United rests on (PACs) being independent, but Correct the Record claims it can coordinate,” Watson told The Daily Beast. “It’s not totally clear what their reasoning is, but it seems to be that material posted on the Internet for free—like, blogs—doesn’t count as an ‘independent expenditure.’ Usually places like MMFA and CTR are defending her against the media and established figures. This seems to be going after essentially random individuals online,” she said. “I don’t know that they’ve done anything like this before.”
It's an interesting argument by the PAC, but one that reportedly is raising eyebrows among lawyers involved in campaign finance law. Some are claiming that this tactic is a cynical undermining of the spirit of campaign finance laws, using a loophole to get around the laws' original purpose. There are also claims floating around that the Federal Election Commission should do something about this, but isn't over a lack of understanding of whether any of this is legal.

Which ultimately may not matter all that much because, as I noted above, I just can't see how this is a productive use of this PACs time and resources. I argue with people online all the time, because I'm an idiot, and rarely do those arguments end with minds changed. And those arguments are often on topics far less divisive than American politics. Why should this PAC think any of this will turn out any better for them?

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Posted on Techdirt - 21 April 2016 @ 11:23pm

Ex-Game Maker Atari To Argue To The US PTO That Only It Can Make 'Haunted House' Games

from the huh? dept

We noted several years ago that Atari, once the king of the video game industry, has since devolved into a zombie company built only for intellectual property trolling. Copyright, trademark, or patents: Atari will use all of them to try to milk the modern gaming industry for cash. In fact, in past public statements, Atari has made it clear that it has no interest in producing any new games, instead relying on its remaining staff to license its trademarks and port a few decades-old games over to the mobile market. Quite a fall for the once giant of the industry.

And that fall will now include going in front of the PTO's Appeal Board to explain why Atari and Atari alone should be allowed to title a game using the phrase "Haunted House." Why? Well, because it made a game called Haunted House in the early 80's, you see.

The United States Patent and Trademark Office has set oral arguments for Atari’s claim against developer Hazy Dreams of Infinity over its use of “Haunted House” in the game Haunted House Tycoon. Atari and defendant Andrew Greenberg, Hazy Dreams founder, present oral arguments on Thursday. In 2011, Atari filed a “notice of opposition” against the Hazy Dreams in an effort to prevent the developer from launching the game, which is still in development. The classic-gaming publisher’s stance is that it owns that trademark in the gaming industry after releasing Haunted House in 1982 for the Atari 2600 console — although Atari did not file for that mark until 2010.
So Atari is going to bully a current game maker over a generic term it once used on a game it made over three decades ago, but didn't trademark until 2010. It's hard to think of an example that better shows how trademark law is abused today, deviating from its intended purpose and spirit. There's no customer confusion here to worry about. Nobody is going to mistake Atari's block graphics for the modern Haunted House Tycoon title. This is simply a bullying tactic, likely to generate licensing revenue. That's what Atari is now, after all.

Greenberg, of course, isn't pleased.
“Trying to claim no one else can use the words ‘Haunted’ and ‘House’ is especially ridiculous, considering games have been using the term ‘Haunted House” in titles ever since Magnavox released a game by that name for the Odyssey in 1972,” he said in a statement. “Atari has a horrible reputation for attacking independent game developers, including recently going after TxK developer Jeff Minter,” the Hazy Dreams of Infinity president said.
That's true, of course, but the folks running Atari these days don't care about that reputation. It isn't the public that is making them money, after all.
All of this comes as Atari has lost much of its original identity. The company, which has shifted from owner to owner over time, filed for bankruptcy in 2013. It emerged later that year under the ownership of venture capitalist Frederic Chesnais, who says that company is now 10 people primarily responsible for managing its past assets.
Ten people working for a company designed to troll actual makers of gaming content, potentially successfully blocking the release of a game because it carries a fairly generic phrase in its title? Yeah, we've gotten so far away from the original purpose of trademark at this point that it's basically unrecognizable.

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Posted on Techdirt - 21 April 2016 @ 2:03pm

UC Davis 'Apologizes' For The Reputation Management Industry's Hyperbole And Your Misunderstanding

from the mmmm-no dept

A week or so back, we had some fun discussing the 2011 incident in which campus police for UC Davis calmly pepper-sprayed the shit out of some seated students, because young people are scary. We did this specifically because news had just come out that the school had paid nearly $200k to a reputation/SEO management company to try to obscure this bit of history from these here internets. Because the Streisand Effect is a cold-hearted mistress, instead of burying the incident, the internet began discussing it yet again, all while having some fun pointing out that UC Davis' efforts were equal parts misguided and cynical.

As the backlash grew, it was only a matter of time before embattled UC Davis Chancellor Linda Katehi publicly apologized for the whole thing. She has now done so. Let's take a look at how she did.

“The university’s identity has been shaken by a series of highly publicized missteps,” Katehi said in a statement released late Monday amid calls for her resignation. “Some were my own doing. All occurred under my watch. For that, I sincerely apologize.”
This, as any good PR professional will tell you, is a good start. As a leader at the school, Katehi takes full responsibility for these transgressions, even for things that may have only occurred under her watch, but also including some that she personally enacted herself. Then she apologizes directly for them. Nicely done. The only way you could possibly screw this apology up now would be to-
But because of the importance of philanthropy to UC Davis and the need to make sure those searching for information about the university get a complete picture, we needed to do a better job telling the world about the university’s extraordinary achievements. So we did what any organization in a similar situation would do ― we sought to strengthen our communications capabilities. We invested in key staff. We added $800,000 to our Strategic Communications budget to cover increased costs for health care and retirement benefits. Another $800,000 was allocated for new and existing employees to work on social media, web development, videography and news. Finally, we also increased the Strategic Communications budget — still comparatively modest for a university of our size and reach — with a one-time, $1 million allocation for a statewide advertising campaign highlighting our contributions to California agriculture.
-fall into the PR quagmire in which you respond to a controversy by trying to divert attention from it to all of the good things you do. I like to call this the "trains run on time" tactic, the fictional retort of those supporting Mussolini's fascist government. Sure Mussolini was a dictator who locked up or murdered dissidents, expunged freedom from his country, and allied himself with Adolph Hitler. But his trains ran on time! Or, sure we tried to cover up the pepper-spraying of non-violent students through a sneaky attempt at SEO manipulation and gaming search engine results. But look at what we did for California agriculture! This tactic rarely works, because the positives are not related to the negatives, making the whole thing an attempt at excuse-making and evasion.

But I'm sure her statement will get better from here-
In hindsight, we should have been more careful in reviewing some of the more unrealistic and ridiculous scope-of-work claims in the written proposals of our outside vendors. What might be accepted industry hyperbole in the private public relations world falls far beneath the high standards of a public institution of higher learning.
Damn, we had it wrong this entire time. UC Davis didn't screw up! The reputation management industry did, with it's hyperbolic claims that the school bought into and paid out hundreds of thousands of dollars for. So, in other words, that apology at the top is really sort of unnecessary, because it's these companies' fault, not UC Davis'. The taking of responsibility has been obliterated by later doing the opposite and shifting blame onto the vendor. Not good.

But it's not like she lied or anyth-
But I assure you: none of our communications efforts were intended — or attempted — to erase online content or rewrite history. At UC Davis, we live with the lessons of 2011 every day. We are a better university because of it. And we succeeded in providing the public with a fuller understanding of everything UC Davis has to offer.
Oh, for Christ's sake, that's exactly what the school was attempting to do. Not by deleting content, but by burying it beneath links to all that agricultural goodness and whatnot. Hell, the vendor's own proposal, which UC Davis signed up for, states that its work will include:
"-online branding campaign designed to clean up the negative attention the University of California, David and Chancellor Katehi have received-"
"-to expedite the eradication of references to the pepper spray incident in search results-"
Eradication and erase are close enough that I'm comfortable in calling the Madam Chancellor a complete liar. And that this statement wasn't so much an apology as it was a dedicated effort at digging the hole UC Davis currently finds itself in even deeper. Stop digging, Chancellor. For the love of the universe, just stop.

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Posted on Techdirt - 20 April 2016 @ 2:06pm

Not Funny: How The OFAC Is Outlawing Even The Lamest Attempts At Humor Over Terrorist Fears

from the humor-me dept

It's only been a couple months since we discussed some of the problems stemming from the US Treasury Department's terrorism scary names of brown people list, namely that non-scary people with names similar or identical to maybe actual scary people suddenly can't seem to use online services. Some term this "Islamophobia", whereas I prefer to mark it as the type of government laziness combined with carpet-bomb approaches to governance that is far too common. Add to that the fact that banking institutions are also suddenly being tasked with checking their payment services against this watchlist, nabbing all kinds of innocents in the process, and you have a process that could be funny if it weren't so frustrating.

But, when it comes to terrorism, we're legislating funny out of the equation altogether, it seems. For example, one man's $42 payment to a friend to reimburse him for drinks has been held in limbo because he tried to get funny in the memo section of the payment.

Telling a friend you’re paying him back for “ISIS beer funds!!!” is not a particularly good joke. I knew this as I was typing it at 2am on a Sunday, but what I did not know is that it’s an even worse joke on Venmo because the federal government will detain your $42.

Almost immediately after I hit send, Venmo—you know, the app that allows people to send money to each other via their phones—blasted an e-mail into my inbox. The company wanted to “better understand a recent payment.”
Obviously this started because of some automatic flag on the word "ISIS." And for that, one can hardly blame Venmo. Is it unlikely that a terrorist is going to send $42 to another terrorist to pay him back for alcohol, of all things, as part of their terrorist-y network? Sure, that's unlikely. But do we want the financial system running some general check against common terror groups and references to make sure money isn't falling into their hands? Of course.

But when Ben Guarino responded to Venmo to try to explain, choosing to call the whole thing a typo error instead of an admittedly lame joke, that meant that someone from Venmo was manually looking at the situation. And the result wasn't any better.
Venmo wasn’t buying it. “Unfortunately,” wrote someone who signed the e-mail as Heather, “due to OFAC regulations, we are not allowed to give the funds back to you or issue a refund.” Because I don’t regularly bump into terrorists or sicarios at Whole Foods, I had no clue what an OFAC was. As it goes, the Treasury Department’s Office of Foreign Assets Control is a decades-old institution, quietly working to keep money out of the hands of America’s enemies. In 1962, the Division of Foreign Assets Control—which President Harry Truman had used to block transfers destined for North Korea and China—metamorphosed into OFAC. This association now has to deal with tipsy hipsters grasping at wit through instant payment apps.
And that's where this whole practice breaks down into the land of the dumb. Look, Guarino's joke was both dumb and not particularly funny, by my estimation. But here's the thing: if your terrorist money-traps are nabbing hipster dudes trading 42 whole dollars for drinks, with a full explanation of where the drinks were had as well, then the program is no longer serving its purpose. Instead, we should admit that we've let fear grip our government institutions to such a degree that those institutions are trying to pass off annoying our citizens as a necessary trade for our safety. If that isn't the stated goal of terrorism, I don't know what is.

As of this writing, the OFAC still has Guarino's $42 sitting in limbo, having given him a case number for his request to have it released and nothing else. And America lived to see another day, I suppose.

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Posted on Techdirt - 19 April 2016 @ 3:43pm

Sevens Marry Sevens: Is Online Dating Making Mixed-Attractiveness Couples More Rare?

from the hot-math dept

We don't talk a great deal about online dating here at Techdirt, which is actually kind of strange, because it's a digital evolution of a sort. But the very good Priceonomics site recently had a fascinating post about some of the visible impacts the prevalence of online dating is producing, namely that anecdotal evidence suggests that it is making so-called "mixed-attractiveness couples" more rare.

The post starts off by dispelling the myth that opposites attract. Instead, studies seem to suggest that relationships tend to form mostly within our own social circles, class circles, and within our general realm of physical attractiveness. The vulgar way of putting this has always been: a seven will date a seven, a six might date an eight, but a two will never marry a ten. The exceptions to this rule appear to be based around how long two people have known each other before entering a romantic relationship.

There is an exception, however, to this seeming rule that people always date equally attractive people: The longer two people know each other before they start dating, the more likely it is that a 3 will date a 6, or a 7 will marry a 10. Which is interesting to think about as dating apps, which match strangers up for dates, take over the dating world. Because if more and more people meet their future spouse on a first date, the mixed-attractiveness couple might just go extinct.
That conclusion is a bit simplistic, of course, as there are many other things that enter into the attractiveness equation. But it would be silly to suggest that physical attraction isn't a primary motivator most of the time as far as first impressions go. That's the whole point of the exception to the rule: a person may later learn to be attracted to someone that they were not physically attracted to from the jump. But if these first impressions are based primarily on dating sites and apps where physical appearance is so much easier to discern compared with personality traits? Then certainly a greater weight on physicality will produce less divergence of that trait amongst couples that choose to enter into relationships.
This dynamic interested Lucy Hunt, a researcher at the University of Texas at Austin, who decided to investigate “how time might affect how similarly attractive couple members are to one another.” Working with two psychologists, Hunt looked at 167 couples who participated in a long-term study at Northwestern. They asked each couple how long they’d known each other before they started dating, and they recruited people to watch videotapes of the couples and rate each individual’s physical attractiveness.

The researchers speculated that people who had known their partner before they started dating would break the rule of assortative mating. And that’s just what they found. Among couples who met when they started dating, both people were about equally attractive. But among friends-first couples, 3s dated 7s and 5s married 8s.
They also did an experiment within a classroom, asking students at the start of a term to rate their classmates' desirability generally and again three months later. At the start of the term, the class generally agreed on who was attractive and who wasn't, but three months later the ratings amongst the class showed a much greater delta. They got to know their classmates better and that affected the ratings. Common sense, right? Except when dating apps come into play, the sorting happens before anyone gets to know anyone. Many dating sites actually incorporate matching people's attractiveness into the matches they offer to users.
The swipe-left, swipe-right dating app Tinder, for example, is known for making matches based on an internal attractiveness ranking it calculates for each of its users. As Sean Rad, the founder of Tinder, has explained to Fast Company, Tinder calls each user’s ranking his or her “elo score.” The term comes from the world of professional chess, where elo scores are used to rank players. If an average player beats a grandmaster, her score increases significantly. If a great player loses to an even better player, his elo score only drops a few points.

Tinder’s approach is not unique. The founders of the Dating Ring, a service profiled by the podcast “Startup”, have talked about ranking users’ attractiveness from one to ten to match them up. “Studies show that people tend to date people of similar levels of attractiveness, and our whole goal is to try to increase the probability that two people will meet up,” Dating Ring CEO Lauren Kay told the hosts of Startup. “We match people within one attractiveness point.”
And with the trend in dating being a shorter time between meeting someone and dating them, with dating sites and apps playing a key role in this shift, matching people based on physical desirability because that's how it tends to work outside of dating sites becomes something of a self-fulfilling prophecy. The algorithms will reinforce this by trimming people's pool of candidates to their own desirability class, and we might see the end of mixed-attractiveness couples generally speaking.

Is that a bad thing? I don't know. I'm married and never did any online dating at all, so I have zero experience with it. I do know that if I were a user of any of these sites, I would feel potentially cheated out of meeting great candidates because the algorithm thought I was too attractive or ugly to meet them. But that ultimately doesn't matter, as the trends show that online dating isn't going anywhere, so we might just all have to get used to seeing synced up couples from a physical standpoint.

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Posted on Techdirt - 15 April 2016 @ 3:32pm

Judge Tosses Rick Ross' Copyright Suit Over LMFAO's Use Of Derivative Three-Word Phrase

from the every-day-i'm-writing dept

It's been less than a year since we discussed LMFAO, the band, and its attempt to bully a brewery into renaming its beer called LMFAO with intellectual property threats. Well, the bro-rock duo is back in the IP spotlight again, but this time with a win. Rick Ross had long ago sued LMFAO over its hit song Party Rock Anthem for including a line, "Everyday I'm shufflin'." Ross had his own hit song called Hustlin, which famously contained the line "Everyday I'm hustlin'," and Ross argued for copyright infringement, claiming LMFAO's lyric was an unauthorized derivative work.

Well, if such a slight homage between music artists doesn't strike you as something which should amount to copyright infringement, then the court in this case readily agrees with you.

In her opinion, U.S. District Court judge Kathleen M. Williams says the two years of litigation in this case ended where it should have begun — by asking "was the musical composition 'Hustlin’' validly registered with the Copyright Office, and, if so, do Plaintiffs have an ownership interest in the exclusive right to prepare derivative works for the musical composition 'Hustlin’'?"

Williams' answer to both questions is "no."

"Because Plaintiffs do not hold a valid copyright registration and because Plaintiffs have not established either legal or beneficial ownership of the exclusive right to prepare derivative works for 'Hustlin',' Plaintiffs' motion for summary judgment is DENIED and this case is DISMISSED," she writes.

This decision isn't shocking, considering Williams previously found the three-word phrase not original enough to be copyrightable for use on merchandise.
And Ross in particular should really know better. Hip hop and rap are largely built on music samples and poetic lyrics that regularly borrow, imitate, and offer homages to acts that came before it. This liberal working and re-working of music that came before it is what has helped the genre explode into popularity. To not only sue over that, but to do so over a three-word phrase that wasn't even identical smacks of all kinds of silly.

And there appeared to be three different copyright registrations for Hustlin for some reason as well, which Williams calls out in her opinion. Those registrations appear to be riddled with errors as well. If you're going to sue for copyright infringement over a three-word phrase for which you claim such importance, it would seem reasonable to think that you might at least get the registrations with the Copyright Office straight, no?

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Posted on Techdirt - 15 April 2016 @ 2:08pm

Elizabeth Warren Introduces Bill To Make Tax Season Return-Free

from the intuit-ive-thinking dept

Yay, it's tax season again! As our American readers will know, this is the wonderful time of year when we scramble to get all of our taxes and deductions paperwork in order, take them to some storefront that looks like a military recruitment center, push all of those papers in front of someone that looks like they just graduated from college, and scream, "You figure it out!" For our foreign readers, I should explain that we do this because our tax code is more complicated than the plot of Game of Thrones, our tax authorities are every bit as ruthless as that same series, and we've collectively allowed our citizens' payment of due obligations to become a for-profit industry. But seriously, though, come to America. It's great. I swear.

Several times in the past, some members of our government have attempted to lessen the burden we bear to pay our taxes. It never seems to work because the industry that makes money off of this tax system -- the tax preparation people and software makers -- lobbies to keep filing free taxes a pain in the ass, directly scaring the public into thinking the government will over-charge them, and then indirectly and unethically having sockpuppets do the same. It's in this way that you have a free-to-file federal tax program that roughly two-thirds of the public would be perfectly qualified to use, instead only being used by 3% of the population. 'Merica!

Well, Elizabeth Warren and seven co-sponsors would like to change that by simply eliminating the need for returns entirely for a significant number of people.

On Wednesday, the Democratic senator introduced a bill with seven cosponsors, including Democratic presidential candidate Bernie Sanders, seeking to make significant reforms to the Internal Revenue Service (IRS). Under the bill, Americans with simple tax obligations would have the option not to complete a tax return at all, but to instead receive a pre-prepared return from the IRS with their liability or refund already calculated for them. The IRS already gets most employer and bank information on taxpayers’ obligations — such as W2s and interest earned — so all it would have to do is calculate what they would owe for them.

For others with more complex situations — those who want to itemize their deductions or with many dependents who have to provide more information — the bill would direct the IRS to develop a free, online preparation and filing service that would allow everyone to file directly with the government, rather than relying on third party filing services like TurboTax or H&R Block. And taxpayers would be able to download the tax information the IRS already has.
In other words, have the IRS, which will be evaluating these people's returns anyway, simply do all the math for most of the simple tax returns. We're not talking about returns that would legitimately make use of deductions; we're talking about very simple tax returns, which is what most people have filled out by tax preparers or tax software anyway. Now, this is usually where someone will make the obvious point: the government doesn't deserve to be entrusted with this math. And, hey, I take that point seriously. The government has certainly shown its capacity to lie and deceive. But so has the tax-prep industry. Intuit has been guilty of all kinds of underhanded attempts to keep people from being able to file for free. They are proven deceivers, too.

In addition to that, this bill is directly setting its sights on the cozy relationship the IRS has with the tax-prep industry, so anti-governmenters should really think about getting on board with this.
The bill would also prohibit the IRS from entering into agreements that would restrict its ability to provide such free, online services directly to taxpayers. The IRS has signed a number of binding agreements with the tax preparation industry over the years that blocks it from offering free services directly to taxpayers itself, saying that it will “not enter the tax preparation software and e-filing services marketplace” and “not compete” with private service providers. The IRS’ declarations that it won’t enter the tax preparation space fly in the face of what it’s been mandated to do. In 1998, Congress passed a bill requiring the Treasury Department to develop a “return-free” tax system by 2008 for those with simple obligations, computing what those people owe with information the IRS already has. Yet Warren’s office argues that the IRS has instead turned control of the process over to private tax preparation companies.
When a government institution rebukes its public duties in favor of corporate wishes, there's a word for that. And it's that corporate control that will be pushing back on Warren's bill. The tax-prep industry, after all, has spent nearly $30 million in lobbying Congress since the late nineties. We're all about to get a very real lesson on the effect of corporate lobbying on a Congress that is ostensibly designed to serve the public need. I suspect the results will be as instructive as they are ugly.

Part of the solution to this is, of course, a simplified tax code. But it's somewhat strange to see some in favor massive tax reform, including simplifying the tax code, come out against simplifying filing tax returns or eliminating returns entirely.
Yet some anti-tax groups that say they want a simpler tax code have fought against these efforts. Grover Norquist, founder of Americans for Tax Reform, has testified and advocated against a return-free system. Republican presidential candidate Ted Cruz has consistently called to abolish the IRS, rather than get on board with plans to direct the agency to make things easier for taxpayers.
Some of that sentiment is likely coming from a worry that a simplified filing system would lead many people to be less angered by the overall tax system, and thus less interested in more radical reform. And some is likely born of a deep-seeded mistrust of government in general and the IRS in particular. Which, again, I completely understand. But it would be wise for the listeners of those mouthpieces to truly understand what this legislation would accomplish, because it's largely built around eliminating returns for filers with returns so simple that charging to file them is downright silly.

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Posted on Techdirt - 14 April 2016 @ 11:23pm

UK Trademark Battle Over The Number 3

from the once,-twice,-trademark-times-a-lady dept

Anyone reading this site will know by now that the alcohol business has a trademark problem. As a quick refresher, what used to be an industry largely dominated by massive macro-companies has since evolved into one of small players, with craft breweries and distilleries exploding in popularity. With the increased amount of brands and inventory on the market, so too has the practice of creatively named brands come into vogue. And with that has come the trademark squabbles. Examples of the trademark disputes centered around these creative names for brands will include a beer called 'Strikes Bock', a brew entitled 'Mus Knuckle', and a brewery called 'Innovation Brewing'.

Also, the incredibly creative brand 'No. 3', because this is trademark we're talking about and why the hell not?

Australian importer Savant Spirits has received a cease and desist letter from Berry Bros. & Rudd over an alleged trademark infringement of the ‘No.3’ marque. The UK based drinks company produces and markets No.3 London Dry Gin and holds a Class 33 ‘gin’ international trademark registration for ‘No.3′.

Savant Spirits started importing Zuidam Distilleries’ Flying Dutchman No.3 rum into the Australian market in February 2016. Savant Spirits director Ben Luzz told The Spirits Business he was “shocked” to receive the cease and desist letter shortly after imports began.
Mark it down, because this is the day when a trademark dispute began over the number three, and if that isn't a sign of the apocalypse than I don't know what is. Keep in mind that trademark law is chiefly designed to avoid customer confusion when buying goods and services by allowing brands to serve as an identifier for their source. Who in the world is going to walk into a liquor store and mistake these two bottles for having come from the same source simply because both are branded with "No. 3?"

No moron is in enough of a hurry to make any mistake here. And I'm struggling to think of how anyone could possibly associate a common number with a specific company or brand. As always, the ultimate source of this misery is the office that approved this ludicrous trademark for a common integer. Which isn't to say that Berry Bros. & Rudd ought be left off the hook for its bullying tactics.

“It is despicable that the big boys at BB&R are taking such an aggressive stance against us and positively ludicrous that they would think consumers would confuse the two products,” said Patrick van Zuidam, master distiller at Zuidam Distillery.
It doesn't matter, friend. This is what trademark has become.

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Posted on Techdirt - 14 April 2016 @ 2:00pm

Let's All Talk About The Stuff That UC Davis Spent $175k Trying To Keep Off These Internets

from the paging-babs dept

As you'll probably recall, back in late 2011 a group of UC Davis students held a protest on campus as part of the Occupy movement. The lasting memory from that protest was one UC Davis police officer casually strolling past a line of students seated in a row and cavalierly spraying pepper spray directly into their faces. Even though this happened half a decade ago, let's all talk about it again now, because UC Davis recently revealed it spent $175,000 trying to make sure we wouldn't.

The payments were made as the university was trying to boost its image online and were among several contracts issued following the pepper-spray incident. Some payments were made in hopes of improving the results computer users obtained when searching for information about the university or Katehi, results that one consultant labeled “venomous rhetoric about UC Davis and the chancellor.”

Others sought to improve the school’s use of social media and to devise a new plan for the UC Davis strategic communications office, which has seen its budget rise substantially since Katehi took the chancellor’s post in 2009. Figures released by UC Davis show the strategic communications budget increased from $2.93 million in 2009 to $5.47 million in 2015.
Those funds, spent by a public university, mind you, were spent in the wake of the pepper spraying incident specifically to reformulate the image of UC Davis by obfuscating search results, web mentions of the incident, and by crafting a deluge of other UC Davis content that was decidedly more brand-friendly. But, hey, are you still confused as to what incident we're talking about here? Maybe this video of the incident will help jog your memory.

What should be readily apparent to you by now is that trying to bury factual if unfortunate history by hiring so-called brand reputation groups works about as well as trying to cover up your inability to cook a decent meal by dumping chocolate icing on everything you make. Sure, icing is good, but you still burnt that bone-in ribeye, you fool.

More importantly, in true Streisand Effect fashion, the attempted coverup of the incident now has us all discussing it again. And not only discussing the incident, but multiplying information about the incident, and footage of it, throughout the internet.

It's probably time for at least our institutions of higher learning to understand that using reputation management companies, paying them thousands of dollars, is the least effective way to respond to a bad PR incident. Even outside PR voices are shaking their heads at UC Davis' actions.

“I would say that it is common for an individual who might be applying for a job or an individual who has been wrongly maligned to go to a company like Reputation.com, but for a public university that is funded through taxpayer funds, who has repeatedly stepped into a vast hole, it is surprising that they thought this could be done without the light of day shining on the act,” said Doug Elmets, a Sacramento public affairs consultant. “It is one more example of how out of touch the leadership at UC Davis is when it comes to their public perspective.”
Interestingly, as a result of some actions taken by Chancellor Linda P.B. Katehi, students are once again protesting, occupying the areas around her office and insisting they won't leave until she has resigned. It should be interesting to see if the school put as much money and effort into reforming campus policing as they did in trying to cleanse the internet of its history.

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Posted on Techdirt - 13 April 2016 @ 11:23pm

How Two Breweries Did What Politicians Can't: Amicably Resolve Dispute Over Convention-Themed Beers

from the four-pours-and-seven-beers-ago dept

It's political season here in America, which means that it's time for everyone to disagree as violently as possible and to such a degree that all conversation is at an impasse. You know, basically just like every other time in America, except now we televise this stuff because the brains of our citizenry might still have a little meat left on the bone that can be melted away through "debates." But two companies are bucking that trend in a way readers here might not expect: two breweries are dealing amicably with having come up with politically-themed beer brews named very similarly to one another.

Thirsty Dog Brewing in Ohio had recently announced its latest beer, Unconventional Ale, named after the RNC convention set to take place in Cleveland. The convention is of course gaining even more attention than usual this presidential cycle, mostly because reports on the machinations of the party suggest it might be exactly the best kind of shit show to watch from the outside. That notoriety explains why Platform Beer Co. too had announced it was releasing a new brew, entitled UnconventionAle. So the names are similar to the point of being nearly identical. I'm sure you're already bracing for the nasty threats and legal filings. But no, these two breweries have managed to do what our politicians won't: talk to each other.

Occasionally, brewers come out with identical or too-similar names for beers, and most of the time a quick call or cease-and-desist letter decides the outcome. Who had it first becomes the arbiter. And in this case, both sides say this was determined in an efficient and friendly manner.

"It is what it is," said Platform's Paul Benner. "John had already planned something with that name and registered it. It's a good example of the brewers taking care of it without having to get dirty. It was a couple of calls and an email. It was amiable."

Najeway agrees. He said he called Platform, saying Thirsty Dog had trademarked the name.

"Unlike politicians we were able to agree to change it," he said. "Maybe we can have a brewers debate about the beers at a beer hall instead of a town hall."
A political event at a beer hall? Sure, what could possibly go wrong? But the lack of historically sensitive phrasing aside, it's worth noting when two companies can work out a trademark issue without having to involve the lawyers, the courts, and any kind of threats. The craft beer industry used to be famous for this kind of business congeniality, but we've seen some of that pleasant facade fall away recently. Seeing two breweries talk to one another and work things out, particularly with the backdrop of a politically-themed beer, is something of a ray of sunshine these days.
When Najeway was asked if he could envision a candidate or supporter touting the beer from the podium, he said: "If they are smart they will."
A drunk RNC convention? Yes, please...

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Posted on Techdirt - 12 April 2016 @ 11:23pm

Brewer Threatens Restaurant For Using The Word 'Hofbrau'

from the sprechen-sie-deutsch? dept

We talk a great deal of the problems that are created when the government approves trademark applications for words that are either common or generic. But does the generic nature of a word change when that word is foreign in nature? We won't have a definitive answer to that question in this case, but we certainly will see some of the problems that could arise.

Hofbrau Steak House and American Grille has been serving up German food in Northern Michigan for over six decades. Staatliches Hofbrauhaus has been brewing beer and operating eateries since the late eighteen-hundreds. Yet it was only recently that the brewer sent letters to Hofbrau demanding it change its name, claiming that it had a trademark on "hofbrau."

Hofbrau Steak House & American Grille shared the news on Facebook Wednesday, along with photos of a letter from Staatliches Hofbräuhaus, HB, that demands the Northern Michigan restaurant change its name.

"Hofbrau NO more?!? Well, after all these years, it's looks like everyone's favorite Interlochen hangout is in need of a NEW Name!!," the owners wrote on Facebook. "..., HOW do you come up with a name?? We are asking for your help!"

The letter from Hofbräu München states the Munich brewery owns the trademark to Hofbrau and has used it since as early as 1894.
Now, we could analyze the likelihood of confusion for eaters in Northern Michigan between a local restaurant and a massive German brewery. Or we could try to parse out whether Hofbrauhaus is actually competing with the restaurant in that market. Those are worthy discussions to have, but I would rather point the finger at the USPTO for approving a trademark on "hofbrau" in the first place.

The word "hofbrau" is a shortened version of the longer German word "hofbrauhaus", from which the brewery takes its name. You might think that this would strengthen the brewery's claim, except that looking into the definition of the word brings with it questions about why the trademark was ever approved in the first place.
1. an informal, German-style restaurant or tavern.
In other words, the word means German restaurant or tavern. If that isn't the very definition of a generic mark, then I don't know what would be. It's like trademarking "cafeteria", but in Spanish. Does a foreign language version of an ultra-generic trademark suddenly render it permissible for trademark enforcement? Every reasonable intuition screams "no", particularly in America, the cultural and national melting pot that we are.

So, whose fault is it that a small eatery in Northern Michigan is now going to change its name after sixty years of use? The brewery, yes, but the trademark office first.

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Posted on Techdirt - 12 April 2016 @ 3:42pm

Game Studio's Plan To Deal With Critic Of Games: Sue Him To Hell

from the waaaaaah dept

There are lots of dumb ways for companies to combat online critics. You can simply claim copyright over the criticism as a way to try to silence it, although that tends to end poorly for the silencer thanks to public backlash. You can go to the court to ask for an injunction against the critic as a way to try to silence it, although that tends to end poorly for the silencer thanks to the Streisand Effect. Or you can ask the courts to test whether the criticism amounts to defamation, although, again, The Streisand Effect, the public backlash, and the fact that those types of suits are rarely successful.

This story is an extended example of the last of those, with game developer Digital Homicide deciding to file suit against game critic Jim Sterling to the tune of ten million dollars, all because Sterling's shtick is to post online reviews mocking what he considers to be crappy video games.

Digital Homicide claims Sterling, whose real name is James Stanton, has "falsely accused [Digital Homicide] and caused damage" to the company. According to court documents, the company is asking for $2.26 million in direct product damage; $4.3 million in emotional, reputational, and financial distress; and $5 million in punitive damage requests. That adds up to $10.76 million, and it's nothing to scoff at.
The claims are, frankly, ludicrous, but they're the kind you occasionally see leveled against an online critic. As most of you will know, the claims being made will typically need to be shown to have been willfully fallacious to get past what will surely be Sterling's defense, that his criticism is either his opinion or that it is valid, or both. The monetary damages asked for are equally silly. The only real potential meat to this whole thing is the accusation that Sterling falsely accused Digital Homicide of committing offenses or crimes.
In an article titled "Digital Homicide And The Case Of The Sockpuppet Developers," Sterling remarked that another Digital Homicide game, Galactic Hitman, had artwork taken from elsewhere. Specifically, it may have been lifted from an artist on DeviantArt. Sterling later edited the piece to say it "may" have been purchased from Shutterstock, an online repository of media. In the lawsuit, Digital Homicide presented a July 2015 receipt for a Shutterstock subscription.

As Sterling dug into other companies Digital Homicide was connected to, he discovered that the people behind the studio had also started a company called ECC Games, which seemed to take its name from a different game publisher in Poland. Digital Homicide points to a line in Sterling's article where he argued it could lead to "potential legal trouble for folks who rebranded and accidentally defamed a completely different studio." In the piece, Sterling spoke with the Polish publisher, who said it had "already taken legal actions."
In other words, you have a commentator or critic raising the issue of potential legal issues, while not directly claiming them to exist as a matter of certainty. That couching language is likely going to mean that the false accusation portion of the suit will fail, as there's very little difference between how Sterling discusses this and how any media outlet deals with the existence of potential criminal or civil actions.

And that's really all a side show, because the fact is that Digital Homicide appears to be chiefly angry about the criticism of its games as leveled by Sterling.
The drama began when Sterling published a 10-minute video of Digital Homicide's first-person shooter Slaughtering Grounds in November 2014, dubbing it the "new" worst game of 2014 "contender" and a game where "the awfulness just doesn't stop." The game did not get much attention outside of Sterling's videos; in fact, one of Sterling's critical videos is the second Google result for Slaughtering Grounds and the first result when you do a search on YouTube. In response to this criticism, Digital Homicide published two videos — both removed, though archived on Sterling's channel — where the developers call Sterling "a fucking idiot" and accuse him of not playing the game correctly.

In another — again, now deleted — post, Digital Homicide explained its position.

"In the sole instance of Jim Sterling's 'Squirty Play' video," said the developer, "We find the usage of the terms 'WORST GAME OF 2014 CONTENDER!' and 'Absolute Failure' to describe the entirety of our product while not actually evaluating it in its entirety unfair and unreasonable use of our copyright material. While the reader may disagree with our claim, we believe the unbiased perspective of a court will agree there has been a violation of our copyright and for this reason we will be pursuing an attorney and proceeding with our complaint."
That last bit had originally come along with a DMCA takedown of Sterling's review, but Sterling appealed the takedown to YouTube, which put the video back up, because the claim that this kind of criticism is copyright infringement is insane.

So, how's everyone in the public reacting to the DMCA takedowns and the lawsuit? Well, Digital Homicide had put up a crowdsourcing site to fund its legal efforts against Sterling, but had to take it down because of the sheer number of people trolling the page. The press, meanwhile, is reporting on this issue, and not in a manner favorable to Digital Homicide. In true Streisand Effect form, Sterling's reviews are spreading as a result, and Digital Homicide comes off looking petty.

In other words, they had better win that ten million dollars, because it doesn't sound like the public is going to be happily buying their games at the same volume as they did before all this nonsense began.

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