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

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Posted on Techdirt - 18 October 2017 @ 7:33pm

Adidas Opposes Turner Broadcasting's ELEAGUE Logo Trademark Because Of Lines

from the those-damned-lines dept

eSports, the once fledgling video game competition industry, has undergone several milestones in rapid succession as it grows into a true entertainment player. Once relegated to online streaming broadcasts, mostly run out of a few Asian and Pacific Island countries, eSports is now regularly broadcast on American television, including by ESPN. From there, it was a fairly natural progression for universities to take notice and begin organizing school eSports teams, as well as offering scholarships for eAthletes.

But while these milestones are both important to and positive for the eSports industry, not all milestones will always be so happy. I would argue that it's a milestone of sorts that a real-world athletic apparel company, Adidas, is suing an eSports league over its logo. Turner Broadcasting has invested in a venture called ELEAGUE, which has been broadcasting eSports for the better part of two years. Turner registered several trademarks for ELEAGUE, including the following logo.

Regular Techdirt readers will have already guessed why Adidas has opposed the trademark for the logo. Going back for what feels like time immemorial, Adidas has jealously protected the broad but admittedly iconic three-stripes logo it has cultivated for itself. And while even we skeptics can carve out a space for Adidas to have a valid claim on that sort of mark, it's been Adidas' aggression in going after anyone using anything even remotely similar to three-stripes regardless of shared industries, notable variations in branding, or actual customer confusion.

Which doesn't keep the company lawyers from pretending otherwise in oppositions such as this one against ELEAGUE, of course.

The opposition is filed on two counts—confusion and dilution.

The first alleges that the similarity between the two logos, that they consist of three broken lines, and "the fact that their respective goods and services overlap or are otherwise closely related" means that the ELEAGUE logo could create the impression that events are sponsored or endorsed by Adidas. While Adidas acknowledges that it does not do business in esports—although it is the shirt sponsor of Counter-Strike team North—esports is "within the natural zone of expansion of adidas’s business and goods and services".

On the second count, Adidas contends that the similarity between the brands will dilute the strength of the Adidas logo as a hallmark of authentic Adidas goods. That, Adidas say, would damage their brand.

Again, I suppose it's a milestone of sorts that a big player like Adidas files a trademark opposition under the theory that real-world athletic apparel and eSports broadcasts are in related industries. Still, the claim is an obvious stretch. The actual ELEAGUE logo calls to mind the letter "E", not Adidas' stripes, and the associated branding throughout the rest of the logo act as a clear source identifier. Pained concerns about customer confusion on the part of Adidas would seem to be laughable on their face, nevermind the question as to why it took so long for Adidas to undertake this if there is so much customer confusion and dilution.

Turner Sports first filed the trademark application in June 2016, but it took Adidas until Oct. 10 of this year to file the opposition.

It sure seems like the kind of harm Adidas is claiming would have required hastier action than a year and half's worth of waiting. Hopefully those reviewing the opposition will take that into account and grant ELEAGUE its mark.

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Posted on Techdirt - 18 October 2017 @ 12:03pm

Disney: The Only Fun Allowed At Children's Birthday Parties Is Properly Licensed Fun

from the mouse-in-the-house dept

Readers of this site will hear the name Disney and immediately begin rolling their eyes. By virtue of its insanely aggressive and expansionist views on intellectual property matters, Disney manages to find itself on the wrong side of nearly every issue. Disney is in the business of making money and it often looks to do so in the most draconian of manners, but the company also bills itself as being dedicated to children's entertainment, growth, and happiness.

Which is why it's somewhat odd to see the giant media company going to IP war against a company that sends unlicensed, poorly-disguised homage characters to children's birthday parties.

Characters for Hire in New York has been hit with a lawsuit after being accused by Disney of infringing upon "highly valuable intellectual property rights" (via the Hollywood Reporter). This includes Star Wars and Frozen characters, as well as superheroes such as Iron Man.

Except that those characters are altered ever so slightly and renamed in an obvious attempt to get around the exact intellectual property laws -- copyright and trademark -- over which Disney is suing. Darth Vader, for instance, is listed as Dark Lord, while Chewbacca has been rebranded as Big Hairy Guy. No, that's not a joke. On the company's homepage, it displays the following disclaimer:

DISCLAIMER: ALL COSTUMED CHARACTERS ARE GENERIC/INSPIRED AND ARE NOT AFFILIATED, LICENSED OR ASSOCIATED WITH ANY CORPORATION OR TRADEMARK. It is not our intention to violate any copyright laws. The characters that we offer are NOT name brand copyrighted characters, and Characters for Hire, LLC. costumed characters are named of our own creation. Any resemblance to nationally known copyrighted characters is strictly coincidental. Should you have the need for a licensed, copyrighted mascot or character at your event, we encourage you to contact the company/copyright holders for your specific targeted character. If you have any questions regarding this issue, we encourage you to contact us. We DO NOT offer nor do we present any licensed and/or copyrighted characters.

For that reason, Characters For Hire is claiming that both the copyright and trademark claims from Disney aren't valid. The characters are altered and renamed in an effort to gain protection from the idea/expression dichotomy, with those same changes and the disclaimer making it clear to the public that the company has no affiliation with the IP owners of the original characters from which these generics are inspired.

That said... yeah, but no. The point made in the disclaimer that the likenesses are strictly coincidental is laughable at best. It's very likely that the copyright portion of Disney's claims will hold up in court. The trademark claims have less a chance of success, as it's abundantly clear that these are not licensed characters or associated in any way with companies like Disney. But, still, the so-called generic characters of Characters For Hire appear to be more than merely "inspired" by the originals and are instead near identical characters with alterations made only to get around copyright law.

But the larger point is: hey, Disney, why? Given that the copyright claims are the most substantive, there was nothing requiring Disney to take this action. Certainly it is laughable for Disney to claim any serious harm from a copyright perspective due to Characters For Hire's actions. All this is really doing is keeping some fun, if unoriginal, characters from entertaining kids and people at birthdays and related events. Is giving up the stated aim to make children happy really worth smacking around a relatively small company that works these sorts of parties?

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Posted on Techdirt - 17 October 2017 @ 7:55pm

New Copyright Trolling Operation Lowers The Settlement Demands And Calls Them Fines To Improve Conversion Rate

from the devious-trolls dept

As much more attention has been brought to copyright trolls and the unethical manner in which they operate, it was inevitable that the tactics of the trolls would begin to shift. For some of us, it was immediately obvious what a PR problem these trolling operations faced. It all comes down to the "settlements" offered in a copyright troll's letters. The amounts, while designed to look small compared with the threat of a lawsuit, still tend to be quite high. Certainly the amounts make no sense when compared with the costs of simply viewing a movie or television show, which is the natural standard that lay person is likely to set. For that reason, some trolls, such as RightsCorp, have already started down the path of lowering settlement offers to levels that are more likely to cause the accused to simply pay up. Also, the fact that these letters, with all of their threatening language, even refer to the offers as "settlements" rings much closer to extra-judicial extortion than anything resembling justice.

Well, it seems that one copyright troll is attempting to correct against both of these concerns. Rights Enforcement, contracted by the studio behind the movie The Hitman's Bodyguard, is sending out letters to those it claims pirated the film with a much-reduced amount of money requested. And these requests are being called "fines" as opposed to "settlements."

Rights Enforcement sends automated ‘fines’ via DMCA notices, which is cheaper than expensive lawsuits. At the same time, this also makes the settlement process easier to scale, as they can send out tens of thousands of ‘fines’ at once with limited resources, without any oversight from a court.

TorrentFreak has seen several notices targeted at The Hitman’s Bodyguard pirates. While the notices themselves don’t list the settlement fee, recipients are referred to a page that does. Those who admit guilt are asked to pay a $300 settlement fee.

Beyond those changes, the letters are classic copyright trolling dreck. The letters are sent out on the basis of an IP address being associated with the torrenting of the film, with threats of a lawsuit still in the text. It then sends the recipient to a site where the accused offender can pay the fine -- although on that site, it refers to the "fine" as a "settlement" -- and also includes a link to where the accused can find legal representation. Legal representation that will, of course, easily cost more than the $300 fine.

The notice also kindly mentions that the recipients can contact an attorney for legal advice. However, after an hour or two a legal bill will have exceeded the proposed settlement amount, so for many this isn’t really an option.

It’s quite a clever scheme. Although most people probably won’t be sued for ignoring a notice, there’s always the possibility that they will. Especially since Rights Enforcement is linked to some of the most prolific copyright trolls.

It's not so much a reworking of the copyright troll's business model as much as it is one troll attempting to refine its process and fee structure to maximize its conversion rate. While that sounds like any business, it's worth noting that these letters are ostensibly about a harmed party looking for justice. The threats of lawsuits are, if not entirely empty, certainly not the desired outcome for the trolling operation. Any such lawsuit would cost the rights holder far more than it wants to spend.

It's still extra-judicial extortion of a kind, in other words. It's just a cheaper form of it, with a little clever wording thrown in to boot.

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Posted on Techdirt - 16 October 2017 @ 1:50pm

Chicago Alderman's Plan On City Budget Crisis: Let's Just Charge Uber And Lyft More To Fix It

from the that's-not-a-plan dept

Big city budgets are hellaciously complicated affairs. That much is obvious, but the actual level of management of a budget likely goes far beyond what the average member of the public realizes. Even with that stipulated, the city of Chicago's budget is an absolute mess. Budget shortfalls abound for any number of reasons, ranging from bloated payrolls, to pet projects that have missed the mark on cost projections, to a shortage of income related to police and parking activity from our infamous redlight cameras and our equally infamous privatization of parking meters. Anyone looking to solve this budget crisis is likely to begin pulling their hair out immediately, wondering where to even begin.

Except for Alderman Anthony Beale, longtime stooge for the taxi industry, who has suggested an easy fix: just go crazy in taxing the hell out of innovative ride-sharing services like Uber and Lyft.

Beale, who chairs the City Council Transportation Committee, said he hopes Emanuel will revisit the idea of higher fees and tougher regulations on the burgeoning ride share industry as part of budget talks for 2018. He said the move would help even the playing field for cab drivers finding it increasingly difficult to compete. Beale wanted a per-ride charge of $1 on ride share companies as part of Emanuel’s 2016 budget. Instead, Emanuel raised the charge from 30 cents to 52 cents per ride.

“We should have went for the dollar and we negotiated down to the 50-cent (fee),” Beale said Wednesday. “Now here we are again, going for the dollar. And so, I think we could have been much further along if we had just stuck to our guns and gone for the dollar a couple years ago.”

Chicago has been a battleground of sorts in this fight between taxis and ride-sharing services. The per-ride fee instituted in 2016 came on the heels of a city-wide protest by taxis in 2015, where cabs refused to pick up fares in the downtown area and instead just honked their horns a bunch while those of us that work down here tried to actually do our jobs. The protest was designed not so much to rally public support to their side, as the public's voting with their wallets is what got us here in the first place. Rather, it was designed simply to be a pain in the city's ass enough for city officials to write in higher per-ride fees into its licensing legal framework.

And to that extent, it worked. The fee went up by a third or so. For Beale to lament the lack of a 300% increase in fees and, more fallaciously, to frame the desire for that increase as a budget solution when it is nothing of the sort, is fairly laughable. The real reason for Beale's angst is that he is the errand boy of Chicago's taxi companies, plain and simple. This is pure entrenched player protectionism and regulatory capture in reverse, with taxi companies looking to regulate more innovative and useful companies to death, or at least into some sort of insane fairness coma.

That isn't how government is supposed to be done, but it sure is the Chicago way.

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Posted on Techdirt - 16 October 2017 @ 3:09am

Utah Senator Wants To Revive The State's 'Porn Czar' Office To Combat The Threat Of Women's Magazines

from the mortified dept

Todd Weiler, a state Senator in Utah, has appeared on our pages before. When last we checked in with the good senator, he was quite oddly attempting to purge his notoriously prudish state from the dire threat of pornography. His plan was more than a bit heavy-handed in that it centered on mandating porn-filtering software on all smartphones under his stated theory that "A cell phone is basically a vending machine for pornography." This tragic misunderstanding by a sitting state senator of what a phone is and exactly what its primary functions are aside, government mandates that infringe on free and legal expression are kind of a no-no in these here secular United States. Even setting constitutional questions aside, attempts like these are immediately confronted by the obstreperous demands from the public for a definition of exactly what constitutes "pornography."

Well, for Senator Weiler, it appears we may have something of an answer. See, Weiler has more recently decided to try to revive Utah's long-defunct Obscenity and Pornography Complaints Ombudsman position, or "porn czar", that Utah once filled but has left vacant for the better part of two decades.

For the past 14 years, Utah has made do without a "porn czar." The position—officially known as the "Obscenity and Pornography Complaints Ombudsman"—has been vacant since 2003, though it was never officially eliminated. Now state Sen. Todd Weiler (R–Woods Cross) may revive it, even as the Utah attorney general suggests legislators strike it from the books. Weiler suggests that an obscenity ombudsman could focus on things like providing guidance to retailers. But the position also has the power to monitor and punish business owners for daring to display magazines that mention sex.

If all of that seems so broad a mandate that non-pornographic magazines might accidentally be caught up in the fray, you're wrong. Those innocent magazines aren't collateral damage at all, in fact, but rather the primary targets apparently of Weiler's ire.

Weiler's definition of porn is apparently broad enough to encompass mainstream women's magazines. Weiler "says he became convinced that the obscenity and pornography complaints office may be needed because of an ad campaign attacking Cosmopolitan magazine as illegal porn," The Salt Lake Tribune reports.

"I've received some complaints...that stores are selling Cosmo at eye level to a child," he told the Tribune. "There's no blinder rack on it, even though we have some blinder rack language in the state code."

Cosmo is and has been the butt of many a joke, but pornography it most certainly is not. And, jokes aside, the magazine is a source and platform for women to discuss and learn about both women's general and sexual health. Painting a porn target on a magazine such as that says everything about why these sorts of efforts must be defeated. No matter how uncomfortable it might make a Utah state senator for women to be real live human beings with body functions about which they need to learn, and no matter how distasteful that senator might find women discussing their health and sex lives in print, it should be plainly obvious that Cosmo is not remotely pornographic by any traditional understanding.

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Posted on Techdirt - 13 October 2017 @ 3:37pm

Monster Energy Loses Trademark Bid To Push Around Japanese Software Company

from the monster-loss dept

There must be something about using the word "monster" in one's business that turns that business into a true monster from a trademark bully perspective. Readers of this site will be familiar with the two largest offenders along these lines, Monster Cable and Monster Energy Corporation. It's the latter that has continued its prolific trademark bullying ways to date, as recently as earlier this year, when it threatened a root beer company with the word "beast" in its name, claiming that this was too close to "monster" for the purposes of trademark law.

Still, as laughable as that spat was, at least it could be said that Monster Energy was going after another beverage company. That isn't the case with Monster Energy's latest failed attempt to block the trademark for a video game company out of Japan.

United States energy drink manufacturer Monster Energy failed to block Japanese mobile-game producer Mixi Inc's move to register its trademark Monster Strike in Singapore for its popular mobile game. A trademark registrar held that Energy's bid to ring-fence the word "monster" for its own use was unjustified as both products operate in different business fields and the marks were more dissimilar than similar.

"Stripped of its legalese, this dispute is, at heart, about one trader's battle to fence off an ordinary English word - monster - for itself, and to exclude others," said assistant registrar of trade marks Gabriel Ong from the Intellectual Property Office of Singapore in decision grounds last month.

It's worth highlighting that the video game company, Mixi Inc., conducts business well outside the realm of the beverage industry. Monster Strike is a mobile game and Mixi Inc. is in the entertainment gaming business. In other words, far from any serious concern over customer confusion, Monster Energy was essentially asserting it could wall off any prominent use of the word "monster" by other, non-competing businesses. Few if any trademark laws in any country allow for this type of language lock, with most trademark provisions necessitating that the offending entity operate in a related industry to that doing the complaining.

Even the complaints about claw marks on some of Mixi's branding failed to persuade, it seems.

Mr Gabriel Ong found both marks to be more dissimilar than similar, noting that the second word in each differentiated the marks. He added that the marks were registered for types of goods that are unlikely to cause confusion among consumers.

There is also no risk of misperception of co-branding nor any likelihood of confusion as the public at large recognise Monster Energy drinks not by reference to the words but the accompanying trademarks above the words, including the "claw" graphics. "It is one thing to describe the goods as Monster Energy, but how they are marketed and sold is another matter," added Mr Gabriel Ong, noting that each can of the Monster Energy drink "invariably bears the claw device", although there were minor variations to each product range.

In a 48-page judgment, he found that the opposition by Monster Energy to Mixi Inc's application failed on all grounds and ordered costs for the game producer.

It's a good result, but one which begs the question: why does Monster Energy continuing wasting everybody's time and its own money with its bullying behavior?

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Posted on Techdirt - 12 October 2017 @ 8:04pm

Real Life Soccer Player Besieged By Requests To Play For Foreign Team Due To Video Game Error

from the irl dept

Video games have been steadily becoming more realistic since their first creation. Conversations about this progress has mostly centered around graphical enhancements and tech such as virtual reality that strive to better immerse the player in the fictional world in which they play. But graphical and visual enhancements aren't the only form of realism in which video games have progressed. More unsung have been the enhancements in pure data and detail in these games. For this type of progress, one need only look to management-style simulations games, such as those of the sports realm. In games centered on managing sports franchises, the depth of detail that has emerged has become somewhat breathtaking. Baseball sims, such as the excellent Out of the Park series, are an example of this as is the equally deep Football Manager series for soccer fans.

So real, in fact, have these simulations become, that they can occasionally create real-world mishaps, as happened with a French soccer player named Ruben Aguilar.

As discussed in this inteview with Goal (in French), there's a mistake in last year's version of the life-destroying management game where Aguilar is incorrectly given dual citizenship of both France and Bolivia.

With tens of thousands of players in the game, mistakes are bound to happen from time to time, but the difference here is that it's turned into an international thing. Bolivian players of Football Manager noticed his supposed South American heritage last season, but a string of strong performances in the real world (especially against French giants PSG) this year have blown up to such an extent that he made the TV in Bolivia, with the country's national team management contacting him to inquire about the possibility of him playing for them.

The error here was such that it indicated that Aguilar was available for signing to the Bolivian team under the rules of international football. How the error came about is an open question, but the fact is that Aguilar's parents were French and Spanish and he holds no citizenship, or indeed even a passport, for Bolivia. Still, the Bolivian team heeded the calls from its fans to inquire about signing Aguilar, only to learn he was not eligible to play for the team. It's worth repeating that this entire episode came about because of a single error in a single popular sports simulation game. Aguilar himself was forced to respond to all of this on his Facebook page.

For the past few weeks, we have received dozens of messages concerning the nationality of Ruben. On Facebook and Twitter many information also circulate. In order to remove doubts; by this communiqué, we affirm that Ruben was born in Grenoble (France), of Spanish father and French mother. As a result, he does not have a Bolivian passport. In any case, we thank you for all messages of support and the enthusiasm aroused to see him wearing the jersey of ‘La Verde’. ¡Muchas Gracias!

It's a funny little story, with many folks now poking fun at both the Bolivian team for not doing its homework and Football Manager for making the seemingly inconsequential error to begin with. More interesting to me, however, is how this serves as an indication of how far video games have come in terms of the realism we expect from them. So sure was the public, and even a professional soccer team, that the information in the game was accurate that all of the above acted on that information.

That's actually kind of cool.

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Posted on Techdirt - 12 October 2017 @ 3:25am

Court To Guy Who Sued News Stations Over His Facebook Live Video: Pay Their Legal Fees... And Maybe Sue Your Lawyers

from the eyebrows-raised dept

If the name Kali Kanongataa doesn't ring a bell, he was the man who sued roughly all of the news for copyright infringement earlier this year. The whole episode stemmed from Kanongataa having put the birth of his child up on Facebook through the site's live streaming function in 2016. Many, many news organizations used snippets of the video in their reporting on the viral nature of the video, which had been viewed over 100,000 times. Kanongataa ultimately lost those suits on obvious Fair Use grounds and the various news organizations subsequently petitioned to be awarded attorney's fees, which the court ultimately granted.

Well, Kanongataa has since petitioned the court to vacate or reduce those attorney's fees awards on two grounds. First, Kanongataa claims his financial situation is such that these awards would bankrupt him. As the court notes however, denying the request, Kanongataa only claimed this and failed to provide any sort of evidence of his financial situation.

The difficulty here, however, is that the plaintiff has submitted no evidence at all as to his financial circumstances only an unsworn statement in a memorandum by his lawyer, which does not cut it. As Judge Chin illustrated in the Muller case, reductions in fee awards based on an unsuccessful party's limited means typically, or at least often, are made in response to evidence rather than airy claims.  And this is not unique to fees under the Copyright Act. A party resisting an award of costs under Rule 54 on the basis of inability to pay, for example, bears the burden of proving the extent of its financial resources.

While Kanongataa's subsequent claim that NBC specifically inflated the amount of time billed for its defense was also denied, the real gem in the court's written response is in a later portion on the matter of Kanongataa's financial situation. Where the court again highlights that Kanongataa submitted absolutely zero evidence for his financial situation, the court footnotes the following:

The Court expresses no view on whether and to what extent plaintiff may have recourse against his attorney for the attorneys' fees awarded here in View of any attorney advice to pursue this case and the failure to submit evidence of plaintiff's financial condition.

The court can preface this footnote any way it wants, but this sure reads like a heavy-handed hint to Kanongataa that he may want to look into recouping costs through his attorney for even bringing this case before the court in the first place, never mind failing to properly advise him on his claims of financial strife. This pretty clearly reads like a court that knows this is a case that never should have made it past the idea stage in Kanongataa's head, with clear implications that his attorney should have advised him against, or refused to even assist him with, putting any of this in motion.

One wonders exactly what sort of faces Kanongataa's attorney made upon reading this.

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Posted on Techdirt - 10 October 2017 @ 3:40pm

Nintendo Nixes Live Streams For Its Own Creators Program For Some Reason

from the nintendon't dept

In 2014, following nearly a full year of waging an intellectual property war on YouTubers doing "let's play" videos with its games, Nintendo unleashed upon the world what would eventually become its "Creators Program". Through the program, YouTubers would be allowed to put videos including Nintendo IP on their channels in exchange for revenue sharing between the creator and Nintendo itself. For a company like Nintendo, which had built a reputation for exerting strict control in this arena, it felt like a huge step forward. It took only a few months before the whole thing began devolving into a bureaucratic mess, with: language in the affiliate agreement clearly geared towards garnering positive coverage from YouTubers; a mishandling of the influx of interest in the program by creators themselves; and a strange whitelist and blacklist of what games could be covered, which hurt channels with extensive back catalogs of content that might need to be deleted. Some high profile YouTubers swore off covering Nintendo games in revolt, while everyone else was left wondering why this had to be handled so badly.

It doesn't seem to be getting any better. For some reason, in the past few days, Nintendo suddenly nixed live-streams from channels affiliated with the Creators Program.

As of today, YouTubers who are also registered members of the Nintendo Creators Program are no longer allowed to broadcast content on YouTube Live. Nintendo gives partners two options: they can broadcast content on YouTube Live from a channel that isn't registered to the program, or they can cancel their channel's registration to the program, and instead register their videos to the program separately. The changes were announced in an email sent to content creators yesterday evening, although Nintendo didn't officially publish the changes to the program until today.

Some Twitter users have posted the contents of the email, which announces that changes have been made as to how the Nintendo Creators Program will handle revenue generated from live streams. It adds that live streaming falls “outside the scope” of the program.

If that sounds like a confusing mess to you, you aren't alone. YouTubers themselves, who actually have to navigate these waters as professionals, have expressed reactions ranging from outrage to disappointment to downright confusion. Some are calling the move stupid. Others are pointing out that any random person not in the Creators Program is able to live-stream Nintendo games, yet officially sanctioned creators cannot. Most reactions amount to pointing out that this doesn't make any sense. Even those covering the story, such as Kotaku, seem to be at a complete loss.

It's uncertain as to why Nintendo introduced this policy. It's also unclear if Nintendo has similar rules for those live streaming Nintendo-copyrighted content on other sites such as Twitch. Representatives for Nintendo did not respond by press time.

When the two chief reactions to a policy shift from those affected by it amount to anger and confusion as to why the shift was even necessary, that's not a good look. With Nintendo staring blankly at requests for clarification from the press, both YouTubers and the public are left to speculate as they please. Though it seems most are content to rage at Nintendo for this decision.

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Posted on Free Speech - 6 October 2017 @ 10:38am

Salt Lake Comic Con Fights Back Against Judge's 'Unprecedented' Gag Order

from the free-as-in-speech dept

As you will recall, the trademark dispute between the San Diego Comic Convention and the Salt Lake Comic Con is now in full swing. Thus far, the action has been somewhat strange, with the SLCC getting some pushback from the court based on what looks to be a flipflopping of exactly what defense it is claiming. That flipflopping has mostly amounted to varied claims by SLCC, run by Dan Farr Productions, that San Diego Comicon trademark for "comicon" was either generic at the time it was granted the mark or has become generic since being granted the mark. Due to that, Judge Anthony Battaglia has allowed the jury trial to move forward instead of issuing a judgment. But before he did so, Battaglia also issued a somewhat strange gag order on the Salt Lake Comic Con, prohibiting it from putting information about the case on its website, engaging the press regarding the trial, and even requiring Dan Farr Productions to put a disclaimer on its website about the injunction. At the time, we wrote that the gag order seemed strange and likely a violation of First Amendment rights.

And now Dan Farr Productions is arguing the same thing, having petitioned the 9th Circuit to vacate the gag order entirely.

In a writ petition to the 9th Circuit, they suggest that the trial judge's suppression orders be vacated as unconstitutionally vague and coercive. They doubt that the pool of potential jurors in the San Diego area is truly being unduly influenced, and in any event, they argue the judge's gag order is tantamount to a prior restraint in contradiction of the right to free speech.

"Without more, the nearness of trial weighs at least as heavily against prior restraints as in favor, because that is 'the precise time when public interest in the matters discussed would naturally be at its height' and '[n]o suggestion can be found in the Constitution that the freedom there guaranteed for speech...bears an inverse ratio to the timeliness and importance of the ideas seeking expression,'" states the petition. "To conclude otherwise — to allow the nearness of trial, of itself, to justify prior restraints — would be to countenance '[a]n endless series of moratoria on public discussion' about first one case and then another, as they work their way through the system and near trial, which 'could hardly be dismissed as an insignificant abridgment of freedom of expression.'”

In the petition, embedded below, the attorneys go on to point out that this kind of prior restraint on factual information about a case is without precedent. In addition, the requirement to put the disclaimer on their website is argued to put the SLCC in the position of either putting the disclaimer on the site and appearing to bow down before the court's infringement of its speech, or not putting the disclaimer up at all and therefore being unable to inform readers of the site of the infringement of its speech. Either way, through the prior restraint gag order issued by the court, the Salt Lake Comic Con is left unable to simply explain its side of the case.

Fortunately, it looks like the 9th Circuit is more than a bit interested in hashing this out.

A panel of judges say, in a short order issued Tuesday, the petition "raises issues that warrant an answer" and that San Diego Comic-Con has until noon Friday to file an answer. Additionally, in an extremely unusual move, the appellate court is also allowing Judge Battaglia an opportunity to address the petition.

I have to say, being able to hear Judge Battaglia explain his response to the petition will be quite interesting. I'm struggling to come up with what he might say beyond repeating the questionable concerns about jury tampering that might actually move the needle on the gag order being anything other than questionable at best.

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Posted on Techdirt - 5 October 2017 @ 10:43am

Iran Cracks Down On Movie Pirates In The Most Inception-Esque Manner Possible

from the pirate-vs.-pirate dept

For those of us that pay attention to copyright matters throughout the world, a story out of Iran has had us riding a strange sort of roller coaster. Late in September, the Iranian government arrested six people it says run the movie-streaming site TinyMoviez. That site is like many others on the web, focusing on the streaming of Hollywood movies in a manner that is pretty clear-cut piracy. Iran does have copyright laws on the books, which include punishments for "anyone who publishes, distributes or broadcasts another person's work without permission," ranging from imprisonment for a few months to three years for violating that law. There are, however, no agreements on copyright between American and Iran, for obvious reasons, so the application of Iranian copyright law tends to be focused on Iranian content. Many were left scratching their heads wondering why the arrest had been made.

Well, it turns out that the government carried this out at the request of several other websites dedicated to pirating Hollywood content in Iran. Iranian pirate sites that are officially licensed, in fact.

However, according to a source cited by the Center for Human Rights in Iran (CHRI), the site was targeted because rival pirate sites (which had been licensed to ‘pirate’ by the Iranian government) complained about its unlicensed status.

“In July and August [2017], there was a meeting between a number of Iranian start-up companies and [current Telecommunications Minister Mohammad Javad Azari] Jahromi, who was asked by film and TV series distributors as well as video game developers to help shut down and monitor unlicensed rivals,” a film distributor in Tehran told CHRI.

“The start-ups made the request because they could not compete with a site like TinyMovies,” the source added.

We live in very strange times, friends. Essentially, the Iranian government licenses websites that stream or upload Hollywood content for pirating, and TinyMoviez wasn't of the licensed variety. The licensed pirate sites complained to the government that they could not compete with an unlicensed pirate site and asked the government to shut them down. If you feel like you're trapped in a showing of Inception at this point, I won't blame you, as the concerns from licensed pirate sites sound almost identical to Hollywood itself. Pirates getting pirate sites taken down is a notable occurrence.

For its part, the Iranian government has suggested it took down TinyMoviez for far more banal reasons in the Iranian tradition.

“Tehran’s prosecutor, after referral of the case to the Cyberspace corruption and prostitution department, said that the defendants in the case, of whom six were currently detained, produced vagabond and pornographic films and sold them in cyberspace,” Tehran Prosecutor Abbas Jafari Dowlatabadi said in an announcement.

“This gang illegally operated the largest source for downloading Hollywood movies and over the past three years, has distributed 18,000 foreign films and series after dubbing, many of which were indecent and immoral, and thus facilitated by illegitimate funds.”

Yet the site's offerings were essentially indistinguishable from that of the licensed pirate sites. This was all about the license, it seems. I'm not sure what it says about the state of copyright or ownership culture when we've reached the stage where pirates are getting pirate sites taken down by governments. Maybe this is the sort of thing that could only happen in a country like Iran. Or maybe the capture of the state through lobbying efforts has reached a new low. Either way, strange times.

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Posted on Techdirt - 4 October 2017 @ 1:22pm

Hacks Are Always Worse Than Reported: All Of Yahoo Email Was Hacked In 2013. All. Of. It.

from the yes-all-of-it dept

Given recent and massive stories about data security breaches by some very, very large players in the technology and financial spaces, we have developed a mantra that you should have on repeat in your head any time you read stories about a breach: however big the breach is reported to be initially, it's always bigger. We formulated that 12 years ago and it has continually held true. We saw it with Equifax. We saw it with Deloitte. And you will also likely recall that 2013 and 2014 were not banner years for data security at a little company called Yahoo. Hacks of Yahoo's email platform were reported initially to be in the hundreds of thousands in terms of the number of accounts compromised. As Verizon began negotiating the purchase of Yahoo, that number crept into the hundreds of millions. Eventually, Yahoo settled on a billion compromised accounts resulting from the hacks.

The Verizon deal went through, with a hefty price reduction as a result of the security breaches. And so it's under the Verizon umbrella that Yahoo informed the public this past week that the need for numerical quantification for the two security breaches has been rendered moot. Because it's much easier to just say, "Yahoo email was compromised." As in: all of it.

In 2016, Yahoo disclosed that more than one billion of about three billion accounts had likely been affected by the hack. In its disclosure Tuesday, the company said all accounts were likely victimized. Yahoo included the finding in a recent update to its Account Security Update page, saying that it found out about the wider breach through new intelligence obtained during the company's integration into Verizon Communications. Outside forensic experts assisted in the discovery, the company said.

"It is important to note that, in connection with Yahoo's December 2016 announcement of the August 2013 theft, Yahoo took action to protect all accounts. The company required all users who had not changed their passwords since the time of the theft to do so. Yahoo also invalidated unencrypted security questions and answers so they cannot be used to access an account," Yahoo said Tuesday.

Also important to note is that the yahoos at Yahoo were only able to correctly inform the public as to the specific number of accounts breached in these attacks once the use of numbers no longer mattered. Tooting its own horn about the actions it took to protect "all accounts" when it didn't even know that "all accounts" had indeed been compromised violates PR rule number 1: don't request praise in the middle of a crisis. The crisis, in this case, is why anyone should have a Yahoo email account at all moving forward, given how laughably bungled this whole mess has been handled.

But the larger point harkens back to the introduction: remember the mantra. These things are always, always way worse than initially reported. Why companies engage in this sort of slow-motion bandaid-pulling is beyond me, but it sure seems to be the playbook.

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Posted on Techdirt - 2 October 2017 @ 6:51pm

Denuvo Game Cracked In Mere Hours

from the the-end dept

Denuvo DRM has graced our pages many times in the past year or so. The DRM once thought to be unbreakable and heralded as the end of piracy has taken a precipitous downward path in reputation. Games using the DRM slowly began being cracked in months, then weeks. The ability to crack Denuvo then sped up, with cracking times dropping to a week, five days, a couple of days. Through it all, Denuvo worked furiously to patch its software, all while proclaiming that a week or so's protection is worth it to game developers as they protect their games during the all important initial release window.

Well, it seems like that ability to make that argument has come to an end, as DRM-"protected" game Total War: Warhammer 2 was cracked in a matter of hours.

Denuvo has suffered its biggest failure yet, with strategy game Total War: Warhammer 2 falling to pirates in less than a day, arguably just a few hours. It was cracked by STEAMPUNKS, a group that’s been dumping cracked games on the Internet at quite a rate for the past few months.

The fall of this game in such a short space of time will be of major concern to Denuvo Software Solutions. After Resident Evil 7 was cracked in days earlier this year, Denuvo Marketing Director Thomas Goebl told Eurogamer that some protection was better than nothing.

That argument is now dead, having been beaten behind the woodshed by the same reality that has faced every other DRM maker out there. DRM doesn't work. On a long enough timeline, DRM is always beaten. That those timelines are shortening to this degree should only drive the point home to game developers: DRM is no way to do business. It disrupts legitimate customers and doesn't stop piracy.

It's worth noting again that Denuvo has publicly stated in the past that it does not offer refunds to its customers. If anything, that stance should make the choice for game developers as to whether or not to use Denuvo on their products all the more clear. Developers certainly can simply throw money away, with no method for retrieving it, if they wish. But I would think that money could be better spent incorporating business models that actually make money and connect with customers.

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Posted on Techdirt - 2 October 2017 @ 11:55am

King's College Football Coach Sued For Copyright Infringement For Retweeting A Book Page 2 Years Ago

from the flag-on-the-play dept

We cover many petty intellectual property lawsuits here at Techdirt. After a while, you kind of become somewhat numb to them and the only mildly ridiculous lawsuits seem sort of... meh. But every once in a while you run into a real doozy, the sort of lawsuit that really gets the anger juices flowing. The copyright infringement lawsuit brought by author Dr. Keith Bell against King's College and its football coach, Jeff Knar, is one of those lawsuits.

A timeline is required here, for reasons that will become readily apparent. In 1982, the year I happen to have been born (skypoint for myself), Bell published a 72 page book called Winning Isn't Normal. The book is supposed to be of motivational nature, prodding the reader to win at sports, games and life, or something. Fast forward to 2015, when the Twitter account for Northeastern State University's baseball team tweeted out an image of a single page from the book. Also in 2015, King's College coach Knarr retweeted that tweet. Now fast forward to late 2017, when Knarr and the school are being sued by Bell for that retweet.

Almost two years after the retweet, Knarr and his employer were sued for copyright infringement over the retweet. Seems more than petty to sue over this so there has to be something else motivating this lawsuit. Actual damages can't equate to much and will be almost impossible to prove. Knarr does have a fair use defense since he did only retweet one page of a much larger work. Bell seeks damages and his attorneys' fees associated with the lawsuit.

It should be plain that lawsuits of this kind are plainly ridiculous. It's not direct copyright infringement. It's almost certainly not contributory infringement. Regardless, Knarr and the school have all kinds of Fair Use arguments that they can make at court. That said, it's likely that Bell has no interest in actually going to court, and is instead looking for a quick settlement, which I assume is the reason for including Knarr's employer in the legal action.

Now, Bell sent a cease and desist letter to NSU in 2016, the original tweeter, which took the tweet and image down. While that likewise broke the retweet by Knarr, Bell's lawsuit says it had been available for nearly a year. On top of that, Bell holds the trademark to the phrase "Winning isn't normal", and so is suing for trademark infringement as well. Over a retweet, where the phrase appeared on the same image that is supposedly infringing his copyrights.

Describing what appears to be a casual retweet as "willful, intentional and purposeful" infringement carried out "in disregard of and with indifference to Plaintiff's rights," Bell demands damages and attorneys fees from Knarr and his employer.

It should be clear that this is nonsense. Retweeting is not the same as republishing and holding individual members of the public responsible for copyright infringement, even if they happen to work for a college that has money, over retweets of content that maybe kinda sorta is copyright infringement is the kind of legal action that practically begs for a reprimand.

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Posted on Techdirt - 29 September 2017 @ 9:38am

Copyright Troll Carl Crowell Ups The Ante: Now Demands Accused Pirates Hand Over Their Hard Drives

from the nope dept

Carl Crowell is a special kind of copyright troll who has graced our pages in the past. The lawyer who worked with Voltage Pictures and whose tactics were underhanded enough to warrant a lawsuit from his former business partner and for a federal judge to setup a pro bono legal team for the targets of his trolling threat letters, Crowell has always operated at the far end of the spectrum when it comes to copyright trolls. That said, a recent demand he made of someone he accused of pirating the film Mechanic: Resurrection takes things a step further by simply demanding the accused turn over his computer upon accusation.

Bill Sheldon mostly uses his personal computer, a Hewlett-Packard Envy laptop, to watch how-to videos for car repairs so he can make an extra buck now and then by fixing a neighbor's radiator. So Sheldon, a 55-year-old Portlander, was surprised in early April when he was sued for copyright infringement for allegedly using BitTorrent software to illegally download a movie called Mechanic: Resurrection—a Jason Statham flick he says he'd never heard of before seeing the title on the court papers. He soon received an even bigger surprise. On April 28, a second letter arrived, asking Sheldon to hand over his computer's hard drive for testing.

Sheldon refused and adamantly insisted he's never heard of either the film or the term "bittorrent" before. Instead, he was afforded a pro bono lawyer, who was mandated to only work for three hours on his case, but who instead chose to stay on once he saw that Crowell had demanded that Sheldon turn over his personal and private property for review.

"There's no judicial oversight of what [Crowell] can and cannot do with the hard drives," says Perriguey. "There's no order to destroy the data or to keep it safe. He's getting access to people's highly private and personal information, including legally protected health information."

Crowell says he asked for Sheldon's computer only to make sure he had stopped illegally downloading movies.

"I have neither the time nor the interest to review the personal information that might be on a party's computer," Crowell says.

Which is, of course, entirely besides the point. And, it should be noted, taking Crowell at his word after he has spent the better part of the decade being a factory for settlement threat letters built on flimsy evidence and fear doesn't seem like a reasonable course of action, either. Whatever you think of Crowell and his copyright trolling ways, there are proper and improper tactics to use in a copyright infringement case. Demanding the receipt of private property that almost certainly contains highly private information about what is merely an accused copyright infringer is plainly bonkers. It's worth repeating at this point that it isn't only Crowell's victims crying foul, but also those on the other side who have worked with him on his copyright efforts.

James S. Davis, a former law school classmate of Crowell's who helped him bring dozens of copyright cases in California, sued Crowell in July for allegedly misleading him about the legitimacy of his cases. His suit alleges Crowell has not done enough to prove the cases have merit or even that his clients own the right to sue for copyright infringement.

Nicholas Ranallo, Davis' attorney, says Crowell's cases use scare tactics to drive defendants into settlements.

It seems to me that when every side of an issue thinks you're doing something wrong, you probably are. For Sheldon's case, Crowell attempted to drop the case, suddenly proclaiming that he believed Sheldon was telling the truth. But he refused to pay Sheldon's legal fees for what was apparently a self-admitted frivolous case. And so the case goes on as Sheldon tries to get his piece of justice.

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

Idea v. Expression: Game Studio Bluehole Gets Its Fur Up Over Epic Games Putting 100 Vs. 100 Player Battle Royale Into Game

from the needless-anger dept

Of all the things that most people get wrong about copyright law, the idea/expression dichotomy has to rank near the top. The confusion over this is easily explained by the pervasive ownership culture that has emerged organically from an intellectual property ecosystem that only moves in the direction of more protectionism. Because of that culture, most people simply assume that the creation of the idea is itself a copyrightable thing, rather than the reality which is that copyright only applies to specific expression. The useful example at hand is that one cannot copyright a superhero named after an animal that wears a mask and a cape, but one can copyright Batman, particularly any books, comics, or movies in which Batman is depicted.

As already stated, this reality evades many people. But it probably shouldn't evade those in industries dominated by copyright, such as the video game industry. Despite that, Bluehole, developers of the wildly popular PlayerUnknown's Battlegrounds developer, appears to have its fur up over another studio, Epic Games, releasing a "battle royale" game mode for its Fortnite title.

In a press release this morning, PlayerUnknown's Battlegrounds developer Bluehole took a shot at Epic Games, calling out Fortnite for cloning the 100-man PVP gameplay style with its upcoming free update ‘Battle Royale.’

“We’ve had an ongoing relationship with Epic Games throughout PUBG’s development as they are the creators of [Unreal Engine 4], the engine we licensed for the game,” Bluehole vice president Chang Han Kim said in the press release. “After listening to the growing feedback from our community and reviewing the gameplay for ourselves, we are concerned that Fortnite may be replicating the experience for which PUBG is known.”

This is a game studio getting upset over what is purely an idea, not an expression. Having 100 players face off against another 100 players in a game mode is not expression and is no more unique than, say, first-person shooter games, itself a genre with innumerable entrants. Bluehole goes on to note that it is going to "contemplate further action", but whatever that action would be would not include a successful legal action against Epic Games. There is simply nothing remotely like copyright infringement here.

Strangely, Bluehole also makes much of its claim that Epic Games referenced PlayerUnknown Battlegrounds to promote Fortnite, which sort of sounds like trademark law territory. The problem, both from a legal standpoint and from a public relations standpoint, is that this claim appears to amount to Epic Games applauding Bluehole on the Playstation Blog.

This may be a reference to Epic creative director Donald Mustard’s note on the PlayStation Blog, in which he wrote: “We love Battle Royale games like PUBG and thought Fortnite would make a great foundation for our own version.”

But that's neither trademark infringement nor evidence for copyright infringement. Even as Epic gives a full-throated acknowledgement that it is seeking to emulate a game mode from Bluehole's game, it's just a game mode, not a specific expression. That simply isn't copyright infringement, any more so than someone saying, "Doom was great, so now I want to make a first-person shooter game like it."

Idea/expression dichotomy: learn it, folks. It will keep you from paying lawyers to lose a case for you.

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Posted on Techdirt - 28 September 2017 @ 11:56am

Never Enough: EU Demands Social Media Companies Do The Impossible Even Faster

from the give-them-an-inch dept

The road to this story has been paved with absolutely dreadful decisions made in Europe over the past few years. As several courts and governments adopting the general idea that social media sites are somehow responsible for content posted by individual users, they likewise developed the stance that these sites must somehow review and remove "hate speech" — as vague and amorphous a term as there could possibly be. As such, the EU essentially demanded that sites like Twitter and Facebook act as content police for their platforms, with nary a care given to the insurmountable nature of the request, nor the actual moral viability of vicarious assignment of guilt. In what some describe as a no-choice situation, Google, Facebook and Twitter — among others — agreed to an equally vague notice and takedown regime for hate speech in the EU.

Choice or not, it was never going to work. Monitoring and responding to hate speech designations, while affording those accused of hate speech anything resembling a fair and honest review, is laughably beyond these companies' ability. Likewise, whatever those sites were actually able to accomplish in removing truly vile speech from their platforms was never going to be enough for the EU. Now that this door has been opened, rather than these sites standing firm and making the argument for why opening that door was ridiculous, we're too far down the road. It was therefore perfectly predictable that the EU was going to come back at these very same sites with more demands, in this case that these companies fulfill the EU's request for the impossible even faster.

Facebook, Twitter, Microsoft and Google have all pledged to do more. In May 2016, they promised to review a majority of hate speech flagged by users within 24 hours and to remove any illegal content. But the European Commission, EU's top regulator, said Thursday they are still failing to act fast enough. It said it would pass laws allowing the EU to impose punishments on companies that fail to act.

"The situation is not sustainable: in more than 28% of cases, it takes more than one week for online platforms to take down illegal content," said Mariya Gabriel, the EU's top official in charge of the digital economy and society.

Look, maybe I'm the weird one here, but I'm supremely impressed that these sites are able to respond to the vast majority of these takedown requests in under a week. Having only 28% of these requests be honored in a timespan of more than a week surpasses how effective I thought the sites would be at all of this. The question appears to be this: exactly how quickly does the EU want these sites to respond?

Because if a week or so, often less, isn't enough, what will be? You can bet that if these sites got it down to 3 days, the EU would demand it be done in 2. If 2, then 1. If 1? Well, then perhaps internet companies should become proficient in censoring speech the EU doesn't like before it ever appears. That's already being suggested, by the way.

The Commission said it will consider implementing new laws to tackle the problem if the online platforms fail to "take swift action over the coming months." It said it wants the companies to invest more in detecting of hate speech, and work with trusted reviewers who are trained to know what constitutes hate speech.

So much for these social media companies placating the EU. Once they opened that door, it should have been obvious the EU would come barging through it.

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Posted on Techdirt - 28 September 2017 @ 3:39am

Republican Governors Association Sets Up Partisan News Site & Forgets To Tell Anyone As It Pumps Out 'News'

from the that's-not-news dept

I like to assume that everyone is as tired as I am of the term "fake news." The term, which once seemed to have a fairly coherent meaning, has since been co-opted by pretty much everyone to mean any number of things that mostly amount to "news I don't like." That's incredibly annoying, as is all of the partisan mold that has grown upon this now dead and useless term.

That said, one does struggle to find different terminology to use when referring to a very strange thing the Republican Governors Association did when it set up a site that purported to be a "news site", but which only served as a GOP governors propaganda outfit, while forgetting to tell anyone who was behind it all.

The Republican Governors Association has quietly launched an online publication that looks like a media outlet and is branded as such on social media. The Free Telegraph blares headlines about the virtues of GOP governors, while framing Democrats negatively. It asks readers to sign up for breaking news alerts. It launched in the summer bearing no acknowledgement that it was a product of an official party committee whose sole purpose is to get more Republicans elected.

Only after The Associated Press inquired about the site last week was a disclosure added to The Free Telegraph's pages identifying the publication's partisan source.

It should be noted that this source identification was not some simple omission, but rather a calculated effort to fool people into thinking the site was some objective source of journalism. The evidence for that is rather plain. Over the summer, the site was registered through Domains By Proxy, a service solely useful for its ability to hide the identities of those registering websites. The social media accounts for The Free Telegraph projected the site as everything from an "outside Washington perspective" to putting the site in the "Media/News Company" category on Facebook. The site was, of course, absolutely none of these things, instead being a GOP operation run squarely from inside Washington that was engaged in obvious partisan messaging as opposed to anything resembling news or journalism.

And, just so some of you don't think we obvious pinko commie Antichrists here at Techdirt are slanting this, Republicans themselves made sure it was known how itchy all of this made them.

"It's propaganda for sure, even if they have objective standards and all the reporting is 100 percent accurate," said Republican communications veteran Rick Tyler, whose resume includes Ted Cruz's 2016 presidential campaign.

Democrats, meanwhile, rightly point out that a site like this can serve two purposes, neither of them in the category of honest. The site can fool readers themselves into thinking they are reading objective or even slanted "journalism", when instead they are drinking from the hose of one of the country's major parties. Perhaps equally important, however, is how the "news" and "headlines" on the site could be used in future campaigns.

Democrats say Republicans are laying the groundwork with headlines that will appear in future digital and television ads, while also providing individual voters with fodder to distribute across social media.

"They're just seeding the ground," said Angelo Carusone, who runs Media Matters, a liberal watchdog group. "They are repackaging their opposition research so it's there as 'news,' and at any moment that publication could become the defining moment of the narrative" in some state's campaign for governor.

Again, I really want to call all of this something other than "fake news" because of what that term has become, but it's hard to find an appropriate substitute. What I wonder is how anyone could trust this particular governors association again, given this fairly bald-faced attempt at this offshoot of gaslighting voters.

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Posted on Techdirt - 27 September 2017 @ 1:29pm

Google Pulls YouTube From Amazon Echo: All About Control Or Just More Corporation On Corporation Violence?

from the mytube-not-yourtube dept

If you haven't heard, something slightly strange happened in the tech world a few days ago. Suddenly, and seemingly without warning, Google decided to break YouTube for the Amazon Echo Show product. The Show is the Echo product that comes with a small display screen where you can... you know... watch videos. YouTube used to work on the product, and was even showcased by Amazon when it demonstrated the product at tech shows, but now all you get is Alexa's monotone voice letting you know "Currently, Google is not supporting YouTube on Echo Show."

Exactly why this is happening is something of an open question, since nobody at either company is offering up any details. Amazon's response to the press puts the onus for this flatly on Google, but doesn't detail why it happened.

Google made a change today at around 3 pm. YouTube used to be available to our shared customers on Echo Show. As of this afternoon, Google has chosen to no longer make YouTube available on Echo Show, without explanation and without notification to customers. There is no technical reason for that decision, which is disappointing and hurts both of our customers.

The two primary theories center on Google wanting more control of how the Echo handles its videos or that Google is basically pitching a fit over it and Amazon's long-running competition. For the theory about control, there is speculation that Google wants the Echo to handle YouTube videos in ways it currently doesn't, including playing subsequent videos and offering subscription services.

Reading between the lines, I'd guess Google very much wants features that it thinks are essential for YouTube's future growth included, stuff like subscriptions, next video recommendations, autoplay, and so on. But who knows! Only the negotiators at the table.

Google has a history of being particular about how YouTube gets displayed on apps made by other companies, citing the terms of service on its API. Way back in 2013, it got in a tiff with Microsoft over the YouTube app on Windows Phone, blocking the app and leading Microsoft to just revert to a web player for YouTube.

Let's call this what it actually is: Google has occasionally been hamfisted and stupid on how it handles YouTube on third party devices chiefly in order to exert a greater level of control it rarely actually achieves. In some ways this has all the hallmarks of a Sony-style way of doing business, which is an odd look for Google. The first thing I thought of when reading this story was Playstation 4's Remote Play feature, available in the smartphone and tablet markets only on Sony phones and tablets, which have sold about as well as a pig roast at a vegan convention. Sony too made all the same noises about wanting to control the experience to make sure customers enjoyed Remote Play, but mostly ended up simply not having those customers at all. For Google, this is not a flattering comparison.

But if this is just more shots fired in a corporate tiff, it likely has to do with Amazon's refusal to offer Google's products on its site.

If nothing else, it's clear that Google and Amazon are not doing a very good job working out that deal. (And hey look, the Google Chromecast still isn't officially available to buy on Amazon.)

If that is what this is, then it's even more stupid. Cutting out potential eyeballs for YouTube in order to slap around a competitor is about as misguided as it gets. After all, people have already bought these Echo Shows, and it's going to be tough to frame this in terms of PR as anything beyond a giant corporation throwing a tantrum to the detriment of the public.

And so we'll wait to see if this whole nonsense gets settled somehow. Given how long Amazon and Google have locked horns on other issues, some still ongoing, I won't be holding my breath.

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Posted on Techdirt - 27 September 2017 @ 6:22am

Deloitte Hit By Cyberattack That Compromised Client Information & Decided To Basically Tell Nobody At All

from the ostrich-style dept

In the wake of the Equifax breach, there has been some discussion about just how quickly companies should publicly disclose when they have been victims of security breaches that reveal client information. In the case of Equifax, the company had essentially been sitting on the knowledge that it was attacked since July before going public in early September. Something like two months, in other words. While most people agree that victim companies should have some time to get their houses in order before opening the window shades, two months seemed like a lot, given the severity of the attack and the number of potential victims among Equifax's clients.

But two months is nearly lightning quick compared with Deloitte, the enormous accounting firm that discovered it was the victim of an attack in March and only bothered to tell the public, along with most of its clients, this week.

One of the largest private firms in the US, which reported a record $37bn (£27.3bn) revenue last year, Deloitte provides auditing, tax consultancy and high-end cybersecurity advice to some of the world’s biggest banks, multinational companies, media enterprises, pharmaceutical firms and government agencies.

The Guardian understands Deloitte clients across all of these sectors had material in the company email system that was breached. The companies include household names as well as US government departments. So far, six of Deloitte’s clients have been told their information was “impacted” by the hack. Deloitte’s internal review into the incident is ongoing.

Now, Deloitte may have discovered the breach in March, but there have been whispers that the attackers may actually have pulled all this off in October of last year. The attack was pulled off by accessing an administrator account that lacked anything resembling two-factor authentication, all hosted on Microsoft's Azure cloud service, and potentially exposing every sort of client data ranging from passwords and IP addresses to health information. The decision was made within Deloitte to only inform a few partners and legal staff within the company and a total of six Deloitte clients that the breach had even occurred. Most Deloitte staff and customers had no idea until these past few days.

And that decision could amount to a very real problem for the company, given that most US states and territories have security breach notification laws mandating when companies must tell clients when these sorts of attacks occur. If Deloitte has customers outside of the six it has informed in any of those states or territories, which is a virtual certainty, and those clients' information was exposed by this attack, Deloitte could be in violation of all kinds of state laws for failing to inform those customers what had happened. Most of these laws frustratingly rely on ambiguous language as to how quickly clients or residents of the state should be informed of the breach -- there is all kinds of "in the most expedient time possible" and "without unreasonable delay" language in these laws --, but it would be patently absurd for Deloitte to suggest that 6 months time meets any of those requirements.

In fact, Deloitte won't even acknowledge if it has ever contacted law enforcement about the breach.

Deloitte declined to say which government authorities and regulators it had informed, or when, or whether it had contacted law enforcement agencies.

Now, for its part, Deloitte is making much of its ability to perform an internal review of the breach and the contracted security firms its engaged, all while stating that it has allowed them to pinpoint exactly what data was accessed and what wasn't, and that the amount actually accessed is very small. Except it's hard to take on faith the cyber-sleuthing capabilities when the firm has been so opaque about the breach thus far, and at least some of the notification laws require notification upon breach, not upon actual data acquisition.

If nothing else, it should be clear that covering this stuff up and trying to pretend it never happened is no way to do security.

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