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About Dark HelmetTechdirt Insider

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.

https://www.smashwords.com/books/view/112205

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Posted on Techdirt - 28 April 2017 @ 2:58pm

Mac DeMarco Tells Concert Goers To Go Pirate His Music

from the piracy-promo dept

We had just been talking about Ed Sheeran suggesting that piracy actually helped his career rather than hurt it, as well as his decision to go to bat against his label for a fan who covered one of his songs, but he's not the only one out there who doesn't see filesharing as the great music Satan the labels would have us believe. Artist Mac DeMarco announced on stage at Coachella that his latest album had leaked online. The instructions he then gave the concert-goers is not the norm amongst artists, to say the least.

However, instead of begging fans to wait for the official release to come out, DeMarco said that he didn’t give a shit and encouraged them to download it from pirate sites.

“We’re going to play a song we’ve only played twice before. It’s a new song, came out a couple of days ago. But you know what? The album leaked yesterday, so I don’t give a shit anymore.”

“Download it. Pirate Bay, Torrents.to, Soulseek, Napster, Limewire, Kazaa. Just get it, just get it,” DeMarco added.

And, yes, much has been made in reports about this that DeMarco specifically instructed fans to go pirate his music on platforms that no longer exist, like Napster and Limewire, but I'm somewhat sure that this part of the line was done tongue in cheek. It's unlikely that a 26-year-old musician who is aware of The Pirate Bay is somehow not aware of older filesharing platforms no longer being in use. Instead, it seems at least as likely to be a subtle nod to how long the music industry has managed to survive from all of the supposedly dire threats at its doors all these years, but that part is purely speculation.

What's not is that DeMarco doesn't see a threat in filesharing. Telling fans at a concert to go get an album from torrent sites before it has even hit the shelves is a pretty clear message: DeMarco isn't worried about piracy. And why should he be? He was performing in front of paying fans despite the certainty that all of his previously released music is likely available online for free as well. Yet here's DeMarco, making money by making music.

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Posted on Techdirt - 27 April 2017 @ 11:47am

Response To Facebook Video Of Murder Is The Call For An Actual 'Godwin's Law'

from the that-name-is-taken dept

Anyone familiar with internet culture will be familiar with Godwin's law. It goes roughly something like this: the longer a discussion goes on on the internet, the higher the probability that a comparison to Hitler or the Nazis will be made. This axiom enjoys lofty status on the internet -- so often have we seen its claim played out in threads and discussions.

Godwin's Law is, of course, not a real law. But there may soon be a real Godwin's Law on the books, stemming from the murder of Robert Godwin Sr. and the subsequent video upload to Facebook of the murder.

Erie Feinberg, heads a company called GIPEC, specializing in deep Internet searches looking for criminals or terrorists. He is now calling for new federal regulations so what happened in Godwin’s case doesn’t happen again.

“I think it starts in Cleveland, in Ohio right now, where everybody calls their congressman and their senator," Feinberg told the FOX 8 I-Team. He wants new limits on websites posting horrific crimes. "They created this world, and it's not an excuse to say, ‘You can't expect us to police every bit of content post and video.’ Well, you created this. You should secure it."

Feinberg isn't the first person to stamp his or her feet in the wake of Robert Godwin's murder with calls for social media sites to do something, anything, to keep this type of content from ever being shared on the computer screens of the masses. What's frustrating about these types of screeds is how clear it is, at times even to the person screeding, that there is little if anything that can be done by companies like Facebook beyond what they do already to stop any of this. The problem is how tantalizing it is to those grieving, as well as to those of us viewing what happened to Godwin from afar, to try to place blame on a site like Facebook for ever having shown us this type of terrible content. You can hear it in Feinberg's words: "You created this. You should secure it." (And let's not even bother digging into the more cynical take that this kind of "do something!" regulation might benefit Feinberg's own company... )

Facebook already works quite hard to take down violent videos of this kind from its pages. However, there is little it can do to prevent the content from being uploaded initially. The site relies on users to report when images and videos ought to be taken down. The takedowns can only happen after the upload. The fundamental question is: do we want a world where user videos can be uploaded to Facebook? If we do, we need to understand the collateral content that may come with that. No Godwin's Law that would pass constitutional muster is going to solve the problem. And no amount of fist-shaking at this tragedy is going to make Facebook magically able to solve it either.

The calls for something to be done are calls based on emotion. Understandable emotion. You can, again, hear it in Feinberg's words as he pushes for a real-life Godwin's Law.

"There's gotta be some good or some positives out of this heinous act," Feinberg said.

No, there doesn't. This isn't a movie. Bad things happen and there isn't always something that can, or should, be done about it. Certainly, laying blame at the feet of Facebook because a single user uploaded a murder video is wholly inappropriate.

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Posted on Techdirt - 25 April 2017 @ 6:28pm

More IP Attorneys Predict More Craft Beer Trademark Disputes As The Industry Continues To Grow

from the IP,-ay? dept

If you want to take the temperature on where the craft beer brewing industry is on the convergence of an exploding industry and the greater use of trademark law, you need only look at what intellectual property lawyers are saying. We had just discussed a Q&A with several IP attorneys in wine country lamenting on how trademark law is throwing up roadblocks to a likewise expanding wine industry and the need for a more nuanced interpretation of marketplaces within the alcohol industries. Even within the craft beer industry itself, IP attorneys are starting to recognize that the industry has a problem.

The Indiana Lawyer has a post about craft beer trademark issues that's fascinating for several reasons, but we'll start with some short and sweet numbers that will give you an idea of what's going on.

As the number of craft breweries in the United States has skyrocketed 5,234, a 16.2 percent increase from the year before, there has been a rise in trademark disputes. Beermakers are increasingly suing in federal courts to protect their brand names and logos. The uptick in brawls is linked to growing sophistication in the industry. Artisans who just want to brew and give their neighbors something delicious to enjoy are being replaced by business professionals and investors more focused on expansions and profits.

16% growth in a single industry once considered an artisan hobby is insane, but you have to keep in mind that this kind of growth has been an ongoing trend, not a one-off. In the past decade, craft breweries have resembled the most viral of plagues, spreading across the country at a pace that's frankly stunning. Along with that growth spread the culture of craft brewing, with art-heavy labels and creative brewery and brew names (more pun-heavy than I would care for, but distinct in their way). The problem that stems from this growth is that new players are running out of language. Or, at least, language that makes sense for the industry.

At the California law firm, The Craft Beer Attorney, lawyers regularly get calls from brewers wanting to know if the name they picked has been trademarked. Usually the conversations end with the anguished cry that all the good names have been taken. The saturation of brands in the craft beer industry is not surprising. Stacy Hostetter of Craft Beer Attorney explained that not only do the individual breweries have names, the beers also have names.

The restraint becomes even tighter given the limited vocabulary of the industry. Producers want names that distinguish their beverages but yet are closely associated with beer in general so consumers can easily identify what it is. Since beers are primarily made with grain, hops, yeast and water, picking an associated moniker can quickly stir trouble.

First, let it sink in for a moment that there is a legal organization that calls itself Craft Beer Attorney. That alone should tell you that there is at least something of a problem in the industry. But if it doesn't, please recognize that having IP attorneys essentially acknowledging that the industry has run or is running out of appropriate language for branding signals that there is a very real issue here. It's chiefly an issue because expanding the marketplace and the creation of new businesses should be a macro-goal for pretty much everyone. It's the sign of a healthy industry, where innovation and job creation can happen with speed. But if that growth is hampered by ever-increasing trademark disputes, then trademark law is no longer chiefly serving the public good in the way it was intended.

One thing that is keeping this real problem from being an inescapable hindrance thus far has been the culture within the industry.

However, before an infringement case reaches court, the culture of the craft beer industry dictates that brewers first make a phone call or write a nice letter. Charlie Meyer, partner at Woodard Emhardt Moriarty McNett & Henry LLP, noted small beermakers tend to be a collegial group who want to reach an amicable agreement.

“Generally, I find most companies are reasonable if both sides are willing to work together,” Meyer said.

That's largely true, but it's trending in the wrong direction for several reasons. First, craft brewing is becoming big business, and once-small breweries are expanding their brands and their reach to new marketplaces. Second, once they become larger, breweries that used to abide by the craft culture often let loose the legal dogs instead. We report on these cases time and time again. Finally, social media and the internet is playing a role, with breweries large and small worried that their brews will be mistaken for others' on beer-rating sites and on social media.

How this problem is corrected is a tough nut to crack. But Hostetter seems to think that the culture of creativity will slough away, replaced by industry players that choose to remain generic and not play the trademark game at all.

Going forward, Hostetter expects trademark litigation to increase. Brewers will turn to the courts to protect their brands for a while but eventually, they will find all the work that goes into applying for trademarks, fending off litigation and preventing infringement is too much trouble.

At that point, the industry will shift. Hostetter believes brewers will turn from giving their beers creative names to generic labels.

Which, when viewed from the original purpose of trademark law, would be fairly incredible. The idea behind trademarks is to encourage distinctive branding to keep the public informed as to the origin of a product. If trademark law becomes such an impenetrable barrier to business that a chunk of the industry decides to proactively go generic, then trademark law has done the opposite of that.

And that would be too bad. Trademark law has a valid purpose, but it can't be such a barrier to entry for new businesses that an entire industry chooses to shirk it instead.

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Posted on Techdirt - 25 April 2017 @ 2:56pm

Dutch Court Rules That Freely Given Fan-Subtitles Are Copyright Infringement

from the can-you-translate-that? dept

For some reason, there has been a sub-war raging for more than a decade between anti-piracy groups and fans who create free subtitles for content so other regions can enjoy that same content. While much of this war has been fought for years on the anime front of all places, the conflict has spread to mainstream movies and television as well. And it is a painfully dumb war to fight at all for the content creators, whose publishers have failed to provide the subtitle translations that are obviously in demand, and which would open up new markets at no cost for them. Instead, they typically choose to scream "Copyright infringement!" at these fans instead.

In the Netherlands, one group of fans that creates free subtitles in this way took BREIN to court to have its work declared kosher. Unfortunately, the Dutch court appears to have drunk the BREIN kool-aid on how fan subtitles are the bane of the entertainment industry and used only by pirate-y pirate types.

The Free Subtitles Foundation, after coming under fire from the Netherlands' anti-piracy association BREIN, decided to raise some money and take BREIN to court. The Foundation's lawyer told TorrentFreak that the lawsuit sought to clarify whether the creators of a TV show or movie can reserve the right to create and distribute subtitles.

And indeed, that's exactly what the court ruled: that subtitles can only be created and distributed with permission from the rights holders. Doing so without permission is copyright infringement, and thus punishable with either jail time or a fine, depending on where you live.

Now, FSF took this to court because BREIN has a habit of threatening fans who create these free subtitles. It's important to draw the distinction that this is about copyright here, because the key point in all of this is that BREIN does not have to threaten fansubbers at all. This isn't trademark law. There is no requirement to police this sort of thing. This kind of action only makes sense if either fansubs are a true danger to the entertainment industry or if BREIN and other anti-piracy groups are in the habit of seeing dangers everywhere they look and picking unneccesary fights.

One of those is certainly true. Fansubs, long vilified by the content industries, have actually been shown to open up entire new markets for content where the creator or publisher didn't bother to create subtitles for those markets. And, taking a step back, the very, very simple fact is that fansubs wouldn't be needed at all if those same subtitles were offered up by the publishers themselves.

Much like file sharing websites themselves, actually policing subtitle sites will be difficult. Just look at the world of anime fansubbing, which has been under fire for more than a decade but is still going strong—or, in some cases, has shifted to just straight-up anime streaming websites with baked-in English subtitles. A better solution might be for content creators and distributors to release officially subtitled content simultaneously worldwide, much in the same way that some big American TV shows and movies are now being released in Europe and Asia at the same time, rather than a few months or years later.

What fansubs actually do is serve as free market research for content publishers to determine where additional demand for their content is geographically. A freely given fanmade subtitle to a movie or show is only necessary when content providers don't provide it first. The product is not serving the market in which the subtitles will be used, which makes targeting them for copyright infringement all sorts of silly.

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Posted on Techdirt - 24 April 2017 @ 1:21pm

New Survey: Most Millennials Both Pay For Streaming Services And Use Pirate Streams When Content Isn't Legally Available

from the fulfilling-customer-demands dept

For any of the entrenched entertainment players seated comfortably in their lofty offices, quite used to counting stacks of money and calling it a profession, they likely already know this fearful mantra: the millennials are coming. Millennials, and even more so the generations younger than them, are driving changes in the entertainment industry. These younger consumers are largely responsible for the cord-cutting trend winding its way through the cable industry, not to mention being the force behind ever-expanding streaming options for everything from movies to television shows and live sports. These are the customers of the future. Customers that will outlive a public that became used to having bloated cable television packages filled with channels and content fit to be ignored.

And those customers are both great customers for streaming services and they are customers perfectly happy to get the streaming they want if legitimate methods for it aren't available. A recent survey conducted specifically with millennials finds that more than half of them regularly use pirate streaming sites to watch movies or shows, but would prefer to use legitimate streaming sites had they been available.

This is one of the main conclusions of a new survey conducted by Launchleap. The data come from a survey among millennials between 18 and 35, and zooms in on pirate streaming preferences in this age group. The results show that more than half of the respondents, a whopping 53%, admit to having used illegal services to stream movies or TV-shows over the past month. Legal streaming services remain on top with 70%, but interest in more traditional platforms such as TV, DVDs or Blu-Ray is clearly lagging behind. The respondents don’t appear to be particularly bothered by their habit. Only 7% of the people questioned say they feel guilty when they watch a pirated movie, the remaining 93% experience no guilt.

You can disagree with the moral calculation of these young people all you like, but the numbers here are both stark and illuminating. If nothing else, this survey should signal to the entertainment industry that however many days are left of customers being willing to live in walled off gardens where content is enjoyed only in the manner approved by a cable company or movie studio, rather than being determined by consumer demand, that number of days is on a short timeline. It's also worth noting that the respondents that said they used pirate streaming sites also paid for content via subscriptions to Netflix and the like. The issue is that there is both a content war currently, with movies and shows available only on one streaming site at a time, as well as the long-entrenched protectionism that has kept some content off of any streaming site at all. The attitude of these respondents seems pretty clear by the numbers: hey, we tried to pay for the content, but you wouldn't let us, so we went and got it from a place that had it.

Money is still a factor in the survey, of course. After all, consumers could get most of the content they demand legitimately by subscribing to, say, three or four different streaming sites at once and switching between them. But that doesn't change the fact that television and movie studios are going to have to contend with the reality that the public doesn't want to, or can't afford to, do that. The question then becomes whether these exclusive streaming deals and content protection continue to be good business, given that these younger customers are finding illegitimate ways around them anyway.

The millennials are coming. And they don't think about entertainment content in the same complacent way the last generation has.

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Posted on Techdirt - 21 April 2017 @ 4:12pm

British Columbia Winery Has Trademark Opposed By Pre-Packaged Foods Company For Some Reason

from the wine-isn't-food dept

I have personally made something of a crusade as of late out of my position that the world's trademark offices need to be more nuanced when it comes to the alcohol industry. Far too many disputes have arisen recently between beer breweries, wineries, and spirit-makers, when anyone with a base understanding of those industries realizes how separate they actually are, rendering the potential for customer confusion a moot argument. To the layperson less familiar with both the purpose and nuanced aspects of trademark law, however, this position can require some convincing.

That shouldn't be the case for a recent dispute between a winery and a pre-packaged foods maker, however, because this dispute is between two completely different marketplaces.

The 40 Knots Winery in Comox, B.C., first applied to trademark Ziggy — named both for the German grapes from which it's made and for the family's whippet dog — in March 2015. The trademark was approved by the Canadian Intellectual Property Office in December 2015, and 40 Knots started rolling out its advertising campaign soon after.

But late last year, Loblaw Inc. officially opposed the trademark, noting that Ziggy's is the brand name of several Loblaw products, most notably deli meats and prepackaged meals, since 1971.

Herman-Craig goes on to note the time and capital she spent in naming and branding her winery. A Loblaw spokesperson, meanwhile, trotted out every protectionist's favorite excuse for these types of overbearing actions, claiming that the company had no choice but to oppose the trademark if there was a chance of customer confusion.

But that's not true, as is so often the case. Wine and pre-packaged foods operate in different marketplaces, even if they are both sold in actual food markets. Customers, for one, are unlikely to be confused by the packaging of the other due to the shared name, particularly given that the trade dress of these two companies are otherwise vastly distinct. It seems that Herman-Craig actually did everything right when naming her winery, including researching the name to make sure her actual competition wasn't already using it.

"We researched to make sure nobody was using Ziggy as a wine," she said. "And for trademarks, you trademark your product that you're manufacturing and selling."

She said her lawyer is confident 40 Knots has a solid case, and she plans to fight the supermarket giant for the rights to the name.

In that case, here's hoping the courts can knock this softball out of the park, because it's pretty obvious that there is little if any chance of confusion between a winery and a packaged food maker.

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Posted on Techdirt - 21 April 2017 @ 1:05pm

Singapore Court Tosses Copyright Troll Cases Because IP Addresses Aren't Good Enough Evidence

from the preach dept

We've been saying this for years, but IP addresses are not good enough evidence on which to base copyright infringement lawsuits. At some level, everyone already knows this to be true. You can tell that's the case because the typical pretenders stating otherwise are the copyright trolls with a business model that relies on gathering large numbers of supposedly infringing IP addresses, mailing out settlement demands to the supposed pirates that own the accounts of those IP addresses, and then collecting very real money from some percentage of the recipients. On top of that, even these trolls will often claim that the onus is on the account holder of an internet connection to police their own pipe, which is a delightful end-around to the common concept of punishing true infringers as opposed to innocent third parties.

There are places with legal systems that have had enough of this practice and we can now add Singapore's to the list. The High Court in Singapore recently threw out requests from several copyright trolls made to ISPs there to produce account information for IP addresses they claim were used to infringe on two movies, Fathers & Daughters and Queen Of The Desert.

The oral decision delivered at a closed-door hearing on Monday was on the grounds of "insufficient evidence", the Attorney-General's Chambers (AGC) told The Straits Times yesterday. In a rare move, the AGC intervened in civil applications made in the High Court in July last year by Samuel Seow Law Corp (SSLC), the local law firm that represents the two studios.

Last year, SSLC again served papers on Singtel, StarHub and M1 to get details of alleged pirates of Fathers & Daughters and Queen Of The Desert, with a list of over 500 offending Internet Protocol (IP) addresses. The AGC and the Intellectual Property Office of Singapore (Ipos) said they highlighted to the court that SSLC did not submit "sufficient evidence" to show a link between the IP addresses and alleged illegal downloaders. It was on such grounds that the case was dismissed.

It's an important decision in the country, with the High Court cementing the position that IP addresses are not sufficient evidence with which to demand account information over infringement issues. That the practical use for that account information would have been the type of sleazy settlement demands that have become the norm in copyright trolling circles may have played a role in the decision, but it need not have. Viewed solely on its merits, there are any number of ways an internet connection might be used for copyright infringement by someone other than the owner of the internet account: shared WiFi, brute force break-ins into the connection, etc. The simple fact is that knowing an IP address that was used for infringement doesn't tell anyone who did the actual infringing. Viewed that way, compelling ISPs to turn over personal account information based solely on IP addresses is crazy.

Some IP attorneys are already whining about the decision.

Mr Lau Kok Keng, an IP lawyer at Rajah & Tann Singapore, said requiring the rights owner to link the IP address to the actual infringer is akin to "putting the cart before the horse" - copyright holders need to know who the account holder is to ascertain if he is the actual pirate.

"So it could mean that individuals who illegally download copyright content will be able to get off scot-free because their identities will never be known, short of being caught in the act," said Mr Lau.

Which is much to do about nothing, given that, again, the infringing party might not be the IP address owner to begin with. What the copyright trolls are really looking for are essentially lead lists for settlement letters. They don't really care if the recipient of those letters is the infringer or not, they care if they can scare enough people into paying settlements to make money.

In that light, it's nice to see a government get it right on this question about IP addresses as evidence, even if we have to look all the way to Singapore to see it.

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Posted on Techdirt - 18 April 2017 @ 3:14pm

Microsoft Follows Valve Down The Road Of Refunds On Digital Game Purchases

from the follow-the-leader dept

With Steam's policy for providing refunds on digital game purchases being roughly two years old, many people forget the context of the time when Valve began offering those refunds. It's worth being reminded that at that time nobody in the neighborhood of the Steam client's popularity was offering any real avenue for getting refunds on digital game purchases. Those that did mostly did so under the most restrictive conditions, with insane single-digit day windows in which a refund could be had, and only for certain reasons, of which the game being shitty was not included. Steam's criteria was that you could request a refund during a two-week period for any reason, be it the game not living up to expectations, the gamer's machine not being able to run it properly, or anything else. The other contextual aspect to keep in mind was that Steam had endured several weeks of absolutely brutal PR, with awful customer service ratings and the whole fiasco over its attempt at creating a paid-mod system.

Still, Valve broke the mold in some respects with the new policy, forcing the competition to keep up. It took two years, but Microsoft recently announced that both its Xbox and Windows 10 marketplaces will likewise offer refunds on digital purchases, with the same fourteen-day window and the same requirement that the game not have been played for more than two hours.

Microsoft's self-service refunds work much like returns do on PC game-download service Steam. Shoppers have up to 14 days after purchasing a game or app to request a refund, and that will only work if the software in question has not been used for more than two hours while owned. Similar to Steam, Xbox and Windows 10 users will have to navigate to an "order history" section of their account to request such a refund, rather than any obvious tabs or buttons within a given game or app's landing page. However, this can only be done through a Web browser pointed to account.microsoft.com, as opposed to the Xbox One or Windows Store dashboards.

It's Microsoft, so of course it would have to be more complicated than it should be, but this is still a good and important step. For far too long, digital purchases for all kinds of goods -- video games included -- were viewed as somehow different from a consumer rights standpoint than a physical product. This sense of difference propagates itself in many directions, but the ability to get refunds on products was certainly one of them. It's far past time that the fake wall that's been erected between digital goods in terms of consumer rights had some bricks pulled from it, and these refund policies are a good start.

They also serve to show how the competition will respond when one company begins treating its customers well, which is essentially to play follow the leader. You can bet that all eyes are now on the PlayStation Network to see exactly how long it will take for Sony to keep up with the competition.

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Posted on Techdirt - 17 April 2017 @ 2:53pm

Nintendo Ended Up Creating A Competitor After DMCAing Fan-Game It Decided It Didn't Want To Make Itself

from the real-nice-guys dept

In the wake of the success of Nintendo's Mario Maker game, Nintendo fans almost immediately began clamoring for similar versions of other classic Nintendo properties. The obvious choice for the next franchise to get the treatment was the Zelda series, of course. The desire for a Zelda Maker title reached enough of a pitch that Game Informer asked Nintendo reps in 2015 about whether the company would be producing such a game.

If Super Mario Maker is a success, will it open the door for a comparable Zelda Maker?

Zelda Maker might be a challenge to make I think. Personally, making Super Mario Maker that was a challenge in itself, and we hope that it's a success, so thank you for saying that, but I think that might be a difficult task.

In other words, Zelda Maker would be too difficult to make, no matter the desires of Nintendo fans. Those comments, by the way, are from a producer and director of Mario Maker.

So, fine, Nintendo doesn't want to tackle the task of creating a game that its fans are screaming for. But this herculean task didn't pass by without someone taking it on. Justin Sink, who created games as a hobby, decided to give it a go.

So in 2015, Sink got to work within Game Maker to craft a design suite that anybody could use to make a Zelda game. Just like Mario Maker, you could place elements such as enemies and landscape sprites anywhere on the digital canvas. Sink released an early version of the tool as “Zelda Maker” online, Link included, and the game blew up. People wanted to play something like Zelda Maker, they loved the idea of it.

Because we're talking about Nintendo here, you already know where this is going next. The company sent DMCA notices for all of the videos showing off Sink's creation in action. Then it sent a DMCA notice to MediaFire, which Sink used to make his fan-made game available to the public. That was back in 2015. Nintendo likely thought that the assassination of a game it didn't want to make had been completed.

Not so much, as it turns out.

But Zelda Maker did not die in 2015, not entirely. Instead of shuttering the entire project, Sink decided to rebrand and expand on it to make it his own—that was the plan all along, he claimed. He set out to create his own engine suited for the purposes of easy level design, even if it meant scrapping some of the work he had already done. Beyond the expanded functionality, Sink also had to come up with a new aesthetic for the game that, while still inspired by Zelda, couldn’t be mistaken for it.

Despite those troubles, “Zelda Maker” was eventually reborn as “Legend Maker,” but that, in of itself, was not the product Sink wanted share with the world. Instead, Sink used Legend Maker to create a game of his own, Runiya, an action-RPG.

Sink has set up a Patreon page where people can support his efforts. Runiya comes packaged with Legend Maker, which pretty much everyone knows is actually Zelda Maker slightly modified. In other words, what started off as a single fan and hobbyist looking to prove to fans and Nintendo alike that a Zelda Maker game could indeed be made has now morphed into a competitor for Nintendo. Legend Maker isn't going to run afoul of the intellectual property of Nintendo any longer, yet it still exists, and Sink is now collecting money for his efforts. Meanwhile, if Nintendo does want to try giving Zelda Maker a go, someone basically already was first to market with that kind of product. The company didn't listen to its fans, so another fan did. And the bullying didn't really stop the project, it just made sure that the project -- that, again, Nintendo didn't want to do itself -- no longer gets the brand recognition of having Zelda attached to it.

Nintendo has long been amongst the masters at pissing off its fans, but turning them into competitors is a bold new step for the company.

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Posted on Techdirt - 14 April 2017 @ 1:39pm

That Was Fast: Denuvo's Version 3 Update Has Been Cracked

from the fast-and-furious dept

It's seems like just yesterday that I was writing about how Denuvo's DRM, the once-vaunted but since defeated DRM unicorn, had been patched to Version 4 with the company proclaiming that it was once again out ahead of the pirate groups that had cracked its previous versions. Oh, wait. That actually was yesterday.

Anywho, the latest version of Denuvo is being used on several recently released games, out since January, with much made about how those games were once again taking quite a bit of time before cracks for them appeared in the wild. With the company pushing the narrative that protecting the first few weeks of a game's release was where the value of Denuvo really stood, companies using the DRM likely cheered. This week, however, things took a familiar turn for the DRM unicorn.


The same cracking group that has pained Denuvo these past several months managed to crack a game using the updated version of Denuvo, 2Dark.

With all eyes primed for a release of a game using the new technology (the cracking scene has labeled it Denuvo v4), earlier this month Mass Effect Andromeda was cracked by CPY, the group behind most of Denuvo’s recent pain. Despite some early claims, the title was actually protected by v3, so the big test was yet to arrive.

Yesterday it did so, in some style.

With its usual fanfare, cracking group CPY announced that it had defeated Denuvo v4 protection on 2Dark, a lesser-known stealth adventure game from the creator of Alone in the Dark.

Now, it isn't just those looking to pirate the game that looked favorably on this crack of 2Dark. In fact, the game itself hasn't received a great deal of attention, compared with other games using Denuvo v4, such as the latest release in the Mass Effect franchise. No, 2Dark had a special target painted on its back for breaking its word. The developers of the game had insisted during the crowdfunding process that the game would be released sans DRM, before going back on that promise and using Denuvo at the request of its publisher.

On the game’s Steam page, the truth later emerged with a note confirming that the title would incorporate “3rd-party DRM: Denuvo Antitamper.” According to a subsequent interview with Techraptor, that was a result of Gloomywood having to team up with publisher Bigben Interactive who insisted on the protection.

It makes it hard to garner that much sympathy, even among those that see piracy as the evil of all evils. After all, all the crack did was keep Gloomywood's promise for them.

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Posted on Techdirt - 13 April 2017 @ 3:17pm

Trademark Bullying Works: Mooselick Brewing Co. Becomes Granite Roots Brewing Out Of Fear Of Moosehead Breweries

from the the-moose-is-loose dept

I will occasionally get a common question when discussing stories about trademark bullies: why do these bullies actually do this? The easy answer is, of course, because it works. And it works on many levels. For example, the primary targets in actual lawsuits can be bullied out of using names and terms for their businesses or brands, so it works on that level. But that's really just the tip of the iceberg. Where being a trademark bully really works is when it makes lawsuits unnecessary, because other businesses and people are so fearful of the bully tactic.

To see that in practice, one need only look at the brewery formerly named Mooselick Brewing Co., which is now rebranding itself as Granite Roots Brewing without putting up a fight against, you guessed it, Moosehead Breweries.

Mooselick started selling beer in July 2015 and opened its tap room on Route 12 in Troy soon after with a name that honored their local heritage.

“We thought it was fun, interesting and it kind of paid homage to the moose,” Oliver Levick said Monday. “We thought it was one of the coolest of animals in New Hampshire, and that we could have fun and play with and have some moose themes.”

It wasn't long before the lawyers for Moosehead Breweries came calling. Levick mentions in the article that he was shocked that trademarks could be so broad as to cover everything using anything moose-related in the alcohol industry. It's a notion familiar to many, with the mind naturally recoiling at the idea that so broad a thing could be locked up by a singular player for a massive marketplace. The actual test for trademark, as you will know, is whether there is potential for confusion by consumers. As with many of the legal threats levied by Moosehead Breweries, that seems as though it would have been unlikely in this case.

Except we'll never see that question adjudicated in court, because Mooselick chose to take on the substantial costs for rebranding itself instead.

“We didn’t have the resources for a long, drawn-out legal battle,” Levick said. So the owners notified Moosehead of a transition plan and worked on creating a new name and image for the brewery.

Levick and his friends Iodice and LoDulce had all grown up in New Hampshire and wanted to pay tribute to their roots and the brewery’s commitment to the state.

The warning shot by Moosehead Breweries was all it needed to fire -- so entrenched is its reputation for trademark bullying and its willingness to engage in costly lawsuits. Startups understandably do the math on whether fighting the fight is more costly than simply rebranding. It's unfortunate that what was once a consumer-protection mechanism has devolved into this kind of sanctioned bullying.

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Posted on Techdirt - 13 April 2017 @ 1:45pm

Court Tosses Company's Bid To Slap Down Olympics Social Media Restrictions Over Jurisdictional Issues

from the get-sued-first,-i-guess? dept

By now everyone should know that the IOC and USOC have completely perverted the concept of trademark law surrounding any mentioning of the Olympic Games. It's gotten so bad that the USOC has taken to threatening businesses that tweet out congratulatory messages to athletes, even when those businesses supported those athletes getting to the Olympics in the first place. The USOC seems to be under the impression that tweeting about the Olympics as a business is trademark infringement. It's not. It never was.

Yet those social media guidelines put forward by the USOC still exist and, coupled with the USOC's appetite for legal threats and lawsuits, that's typically enough to keep companies from challenging it on the matter. But one carpet cleaning business in Minnesota actually sued the USOC over the social media policy and its violation of that and other companies' free speech rights. Sadly that company, Zereorez, has had that suit tossed by the court on jurisdictional grounds, with the court essentially telling the company to come back after it's been sued by the USOC.

Zerorez, based in St. Louis Park, filed suit shortly before the Summer Olympics hoping to clarify whether the USOC could prohibit it from cheering for Minnesota athletes on social media. The company said it wanted to tweet “Congrats to the 11 Minnesotans competing in 10 different sports at the Rio 2016 Olympics!” but could not for fear of a lawsuit by the USOC.

U.S. District Judge Wilhelmina Wright in Minneapolis dismissed the case April 4, ruling that, because the USOC never sued or even threatened to sue Zerorez, the court lacked subject-matter jurisdiction.

Considering this suit was seeking a declaratory judgment that text Zerorez wanted to tweet out, but was afraid to because of the USOC guidelines, was ok, this can be viewed from the outside as a punt by the court. The judge's order goes to great lengths to outline what satisfies the jurisdictional requirements for a declaratory judgment. To anyone familiar with the USOC's antics, Zerorez's suit appears to satisfy them. Where the court disagrees is on the matter of whether or not an actual controversy exists in this case, with that controversy requiring that Zerorez first plan on engaging in what could be viewed as infringing behavior, which its tweet does in the context of the USOC's guidelines, and secondly that Zerorez has reason to expect to be sued by the USOC. Zerorez's filing pointed to other cases in intellectual property law in which declaratory judgment jurisdiction was accepted if the defendant had a prior history of filing or threatening to file infringement suits.

Here the court flatly declines to accept that standard, instead suggesting that Zerorez go ahead and get itself sued by the USOC if it wants to then protect its free speech rights.

If news reports of USOC's letters to other companies warning that only official sponsors of Team USA are permitted to use USOC's trademarks on their corporate social media channels create an actual controversy between USOC and Zerorez, a company with which USOC never communicated before this lawsuit, then any company that is not an official sponsor of Team USA could bring a declaratory-judgement action against USOC by asserting the same facts. Such a conclusion would eviscerate the actual-controversy requirement.

Here you see the catch-22 that small businesses face in light of the chilling effects of the USOC's antics. The USOC gets to bully smaller entities less capable of defending themselves in court, but escapes the court when a company wants to get what is plainly free speech content declared legal and non-infringing. The choice left to companies via this ruling is: don't exercise your free speech rights, or go get sued first and then try to defend yourselves.

Which is beyond unfortunate and trends into being downright sad. If the USOC's guidelines bastardize trademark law, and they do, then that's the reason why so many companies would want to seek declaratory judgment that their free speech is kosher. The problem is the USOC, not the fact that Zerorez hasn't been sued yet.

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Posted on Techdirt - 13 April 2017 @ 3:22am

Denuvo Strikes Back: The DRM Has Been Patched And Is Working... For Now

from the drms-race dept

The recent saga of Denuvo DRM has been fairly fast moving as these things go. Once thought to be the DRM unicorn that video game makers had dreamed of for years, the time it took for cracks to be released for Denuvo-protected games shrunk to months, then weeks, and finally days. It seemed for all the world like Denuvo was destined for the grave.

But these things don't always progress in linear fashion. The recently released Bioware title Mass Effect: Andromeda was patched recently for a variety of gameplay functions. Unheralded in the patch notes was the updated version of Denuvo included within it. That updated version appears to be setting back cracking groups, forcing Mass Effect pirates into using the older, pre-patched version of the game.

The CPY collective released a crack for version 1.04 of Mass Effect: Andromeda just ten days after its release, making it the latest in a long string ofgames to see its previously unbreakable Denuvo anti-tamper technology quickly crumble. But after last week's version 1.05 update to the game, Reddit user NTStatus noticed that the game's executable now includes a new reference to an "InjectableGTPSteam.pdb" file.

That same file path can be found in games like Dead Rising 4, 2Dark, and Nier: Automata, recently released titles known to use a revamped version of Denuvo, which launched in February and has yet to be cracked. Games like For Honor and Sniper Elite 4 are now approaching two months on the market with this new and improved Denuvo protection intact, showing that Denuvo's latest volley in the battle against piracy seems to be holding for now.

No sane observer expected the Denuvo folks to simply admit defeat and lay down their arms. It was obvious from the outset that the DRM would be updated in an attempt to stave off the cracking groups that had previously turned the security software into so much Swiss cheese. But it's equally obvious that this is an arms race that will continue on the other side as well, making it ultimately a losing proposition. On a long enough timeline, DRM fails. Always. Even game developers and the DRM makers themselves admit as much, with much of the focus and reasoning for using DRM at all turning on the axis of the pivotal early release sales window for games. The reason why the Denuvo stories from months past were so problematic is that a cracking time of mere days destroys that rationale for using DRM. The updated version restores that rationale... for now.

Meanwhile, it's worth repeating that other game developers are embracing better ways to attract both fans and money, typically in the form of fostering bonding connections with fans that keep them from wanting to play great games for free without compensating the creators. It's not as though examples don't abound of DRM-less games raking in huge amounts of money. They do, which makes one shake their head at the DRM arms race all the more.

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Posted on Techdirt - 12 April 2017 @ 5:59pm

Q&A With Wine Country IP Attorneys Shows Just How Problematic Trademark Is Becoming

from the whining-about-wine dept

For several years now, we've put out the steady warning that the alcohol industries have a trademark problem. In some ways, it's one of those kinda sorta good problems to have in a goods industry, in that the reason there is a problem at all is because of how well the alcohol business is doing. Not just well in terms of total sales, but also in terms of being an ecosystem that encourages new businesses, startups, and expansion. Those are all signs of a healthy market, but with that comes the trademark problem. With so many new players and and a finite amount of language with which those players can brand themselves, trademark disputes in what has previously been known to be an IP congenial industry have exploded in number.

It's become bad enough that the North Bay Business Journal in Santa Rosa, California, smack dab in the middle of wine country, conducted a written Q&A with a couple of intellectual property attorneys to get their thoughts. You can practically hear the frustration at how this is all progressing dripping off of their responses.

For instance, when asked about just how many more trademark disputes there are now than there were before, one attorney stated:

Over the past 10 years, the number of trademark disputes in the alcohol beverage business, and the wine business in particular, has increased exponentially. It is a function of the number of new producers and new brands in the marketplace. It also reflects the increased awareness by producers of the value of trademarks and just how important brand strength can be to a company's bottom line and long-term success.

Put another way, you have more players in the industry and more players within that industry that realize what a bludgeoning tool trademark can be if wielded in a protectionist fashion. That's great for established businesses, and their lawyers, but not so great for growing the industry and supporting innovative new businesses. Keep in mind that there is an implied acknowledgement in that response that the industry grew in an era when trademark disputes were limited. Now that they aren't limited, that will likely impede continued growth. That's bad for consumers, who are supposed to be the net beneficiaries of trademark law to begin with. Especially given another attorney's comments on just how likely confusion is in many of these disputes, particularly within the wine industry.

Wine consumers are very sophisticated and spend a lot of time educating themselves by coming to Wine Country and learning about the wines. The wine industry is somewhat unique in that aspect, especially with these higher-priced wines. That’s part of the reason why with so many different brands that are so similar they are able to co-exist.

The big issue we face now is with beer and spirits, with dramatic increase of craft beers and spirits. The [U.S. Patent & Trademark Office] considers all alcoholic beverages comparable goods, so we have to spend a lot of time to research brands. It’s a challenge to get a wine mark through when you have thousands of brands out there.

I've been screaming this for years now, so it's nice to see the problem articulated by an attorney in the field as well. The USPTO can at least stave off some of this trademark dispute deluge by smartly differentiating between the beverage industries. Having a trademark market for alcohol probably never made sense, but it certainly doesn't make sense now and it's also getting in the way of the industries. Nobody is going to confuse wine for beer, wineries for breweries, or spirit-makers for wineries. That just isn't a thing, certainly not to any degree that would require the USPTO to maintain its non-nuanced stance on the alcohol industry.

The attorneys also had advice on sending out C&D notices, which mostly amounted to a Wheatonian mantra: don't be a dick.

My advice is to initially keep [the letters] friendly. Usually, folks aren’t infringing trademarks willingly. They just simply did not conduct a clearance search. Matters can more readily be resolved out of court if we take the attitude that people are doing the best they can do with the knowledge they have.

If there's any takeaway here, it's that the USPTO needs to get out in front of this and create sub-markets for the alcohol industries. Because they really are separate things, with separate customers and a low likelihood of confusion across them. If that doesn't happen, expect the courts to be filled with trademark cases, even more so than they already are.

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Posted on Techdirt - 11 April 2017 @ 5:49pm

eSports Gets An Introduction To Major College Sports At The University Of Utah

from the big-time dept

We've been following the evolutionary milestones for eSports for some time now. What was once an event class considered equal parts fringe and foreign has made impressive strides towards the mainstream in mere years. It started with a small university granting scholarships for eAthletes, progressed into the realm of coverage on sports broadcasting giant ESPN, and made yet another leap with an eSports section of the pie being carved out by the NBA.

Not all progress towards the mainstream needs to be of a new type, of course, and eSports reached another milestone harkening back to its first, with the announcement that the University of Utah, a member of the Pac-12 Conference, has started its own varsity eSports program.

The University of Utah has announced a varsity esports program, starting with League of Legends. Part of the Pac-12 Conference, Utah is the first Power Five school to sponsor this type of program, and it doesn’t plan on stopping at one game.

The team, sponsored by the EAE video game development program, hopes to expand to a total of four games, according to the Salt Lake Tribune. Students from the current campus esports group Crimson Gaming, as well as high school recruits, will be part of the team. Players will receive partial scholarships, with an eventual goal of over 30 student-athletes and coaches to be on scholarship.

There will always be arguments about whether eSports are sports in the traditional sense, as well as how good a thing it is that colleges are getting in on this at all, but from a market and industry standpoint the progression is all about interest and advertising dollars. For a school like the University of Utah to invest in this sort of thing, it's likely it required the broadcasting success ESPN has had and the nod to that success that the NBA showed to push this along. And now that eSports has been formally introduced to one school in a Power Five conference, you should absolutely expect many of the other schools to follow suit.

The growth at this point may tend towards the exponential. Once the broadcasting and advertising revenues really start to kick in, eSports will be here in a very big way.

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Posted on Techdirt - 11 April 2017 @ 11:41am

MPA Gets Ireland To Crack Open The Site-Blocking Door It Plans To Bust Through

from the block-party dept

Give an inch and they will take a mile, as the saying goes. This mantra applies quite nicely to the recent spate of site-blocking efforts that have taken place around the world. Once content owners, chiefly Hollywood and music groups based in America, manage to slightly open the door to having entire sites blocked by order of government, they then barge through and expand the scope of the site-blocking exponentially.

And the groups doing this barging don't even bother to hide their plans. In Ireland, one can see this in the recent news of the Motion Picture Association submitting an order to have several websites blocked by ISPs there.

On behalf of several major Hollywood studios, the group requested Irish Internet providers to block access to three popular streaming sites; movie4k.to, primewire.ag, and onwatchseries.to. In their complaint, the movie studios, including Disney, Twentieth Century Fox, and Warner Bros, described the sites as massive copyright infringement hubs, with each offering thousands of infringing movies.

Monday evening the court approved the request. This means that the three websites will soon be rendered unavailable by Eircom, Sky Ireland, Vodafone Ireland, Virgin Media Ireland, Three Ireland, Digiweb, Imagine Telecommunications, and Magnet Networks.

The blocking of entire websites on the basis of industry complaints should be seen as no small thing. Given how often sites that Hollywood claims are "pirate sites" in fact have completely legitimate uses, wary eyes should be cast at this sort of censorship. These three sites may not fall under that falsely accused designation. The problem is that in the immediate aftermath of the court's decision, the MPA is licking its chops to go after many, many more sites.

The ISP asked the court to put a cap on the number of notifications, limiting it to 50 per month. However, the movie studios objected to a blocking cap, and the judge decided not to add any limitations for now.

No caps, because as we've seen in other European countries, these blocking requests will now be vastly expanded to include all kinds of websites. With that volume increase will come mistakes, overreach, and false accusations. It's what always happens. And at that point, Irish citizens, and perhaps the courts, will realize exactly what kind of Pandora's box has been opened to satiate the folks in Hollywood. The ISPs in Ireland already know this, as they are hedging their support for these blocking efforts in the future.

Irish Times reports that none of the ISPs opposed the blocking request. However, Eir said that the costs involved could become an issue if the number of blocked websites increases drastically in the future.

It's easy money to bet that those drastic increases will come about quite quickly. Hollywood can't seem to keep from barging through a door like this once it's been cracked open.

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Posted on Techdirt - 11 April 2017 @ 3:26am

Dear CD Projekt Red: Please Stop Trying To Get Trademarks On The Common Name Of A Genre

from the cyberpunk-move dept

When it comes to bastions of hope in the video game industry on intellectual property matters, we've been happy to laud CD Projekt Red (CDPR) for getting most things right most of time. The company's stance on keeping its games DRM-free while being immensely successful has been a breath of fresh air, while its tendency towards bucking the DLC trend in gaming by not nickel-and-diming its fanbase for every last little thing. These are generally good folks, in other words, which is why it's a little disheartening to see how the company is handling the backlash over its attempt to trademark the term "Cyberpunk" in the EU.

But first, some background. Cyberpunk 2020 is a pen and paper roleplaying game developed by Mike Pondsmith. CDPR announced in 2014 that it was making a game based on that system, entitled Cyberpunk 2077. To that end, it acquired the already granted US trademarks for the term "Cyberpunk", originally registered in 2011, from Pondsmith's publishing company. Cyberpunk is also, of course, a common genre term for fiction, movies, and video games. If you're asking why the USPTO ever should have granted a trademark on the singular term "Cyberpunk", the answer is obvious: it shouldn't have. The term was coined in the 80s and quickly grew in usage to the point where its an established genre of fiction. Trademarking it for the use in titles within a common medium of fiction is crazy. Yet, in the course of acquiring the rights to make the game, the original granted mark was transferred to CDPR when it began making the game, and the company likewise got a trademark registration for the full name of its game, Cyberpunk 2077.

The recent uproar is because now CDPR is attempting to register the term "cyberpunk" in the EU itself, as opposed to having it transferred from a previous owner. The backlash was quite severe.

The trademark actually makes for the biggest public development for the project in recent months. On forums like Reddit, though, the focus was less on what this could portend for the long-gestating Cyberpunk 2077 and more on how one studio owning the word “cyberpunk” could cause trouble for other games in the future.

“I hope they won't be able to push that trademark, it's kind of uncool move,” reads the original Reddit post from last week, which quickly blew up. “We wouldn't be able to have term cyberpunk used just like you can't use terms Banner or Saga without a fear of being sued. Future games like [VA-11 Hall-A: Cyberpunk Bartender Action] would have to dance around the term that's core to their concept and wouldn't be able to use the term in the title.”

Admittedly, some of this uproar has been the result of confusion between trademark and copyright and the differences between the two. Still, a big chunk of the concern out there is whether or not other games can still use the term in their titles and associated branding or marketing. And that concern is perfectly valid. It's also quite logical for the mind to recoil at the idea of a single company locking up rights to use the term for a common genre in its title names. The backlash got loud enough that CDPR had to respond, though the response was somewhat lacking.

Look, the positioning here isn't entirely unreasonable. The US trademark wasn't originally filed for by CDPR, it was transferred to them when it got the rights to produce the Cyberpunk 2077 video game. But the EU application is theirs. Attempting to assuage legitimate fears of overreach by pointing out that the company has never been one to bully on intellectual property matters and promising to only use the trademark defensively are valid points, but they miss the mark for several reasons. First, the fact remains that trademarks ought not be granted on common, indistinct terms, for which a common fiction sub-genre easily qualifies. Second, past history isn't a perfect predictor of future behavior, so CDPR's previous good acts aren't good enough to defeat the principal argument. Angels do fall, however infrequently.

But the most curious part of CDPR's response is the actual remedy to all of this is near the end of its own response. In case you missed it, the response suggested:

The role of the trademark is only to protect words, signs used as titles of games, names of products, etc. If someone names their game "JOHN SMITH: ADVENTURES IN A CYBERPUNK DYSTOPIAN SOCIETY" OR "20 SHORT VIDEO GAMES SET IN CYBERPUNK WORLDS" none of them should be treated as infringement of our rights.

That's exactly correct, which is why CDPR's game never should have been named so generically if the company wanted a trademark on the title. All that was required to avoid all of this was for a more distinctive title and for the trademark application to be for that distinctive title, as opposed to the common term "Cyberpunk." Even for the US mark, there are provisions at the USPTO for surrendering a mark while retaining the trademark registration on the more distinctive associated marks. "Cyberpunk" could be surrendered while retaining a trademark on "Cyberpunk 2077."

Look, when CDPR says it doesn't plan on being a bully with its trademark, I happen to believe them. The company has put too much good will in the bank for me to think otherwise as of now. But that isn't the point. The point is that there ought to be no trademarks on a term like "cyberpunk" to begin with. Excusing holding that trademark away while also applying for a new trademark in the EU isn't a good look.

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Posted on Techdirt - 6 April 2017 @ 11:47am

Italian Court Says Due Process Isn't Necessary For Blocking Sites Over Copyright Infringement

from the zoom-zoom! dept

A years-long fight in Italy between copyright rightsholders (chiefly Hollywood) and consumer groups looking to protect Italian citizens, took a dark turn recently. If you aren't already aware, the Italian government put in place a delightful regulation in 2014 giving the Authority for Comunications Guarantees (AGCOM) the authority to simply block websites deemed infringing outright, without the need for such pesky things as court cases or trials. Consumer groups immediately challenged the regulation, stating that it violated the Italian constitution, specifically suggesting that giving a government body the authority to unilaterally block websites without any sort of judicial review was a violation of the exercise of freedom of expression and economic initiative. Given exactly how often demonized websites are demonstrated to have perfectly legitimate uses, not to mention how absolutely terrible every government everywhere seems to be in understanding and protecting things like Fair Use, it's an easy argument to understand.

Unfortunately, an administrative court in Italy has chosen to take itself out of the judicial review business when it comes to site-blocking.

The case was initially rejected by the Constitutional Court in 2015, which referred it back to the administrative court of Lazio. Last week this court decided that the site blocking procedure is in line with both European and Italian law. According to the court, the site-blocking regulation is compatible with the European Union’s E-Commerce Directive as well as the Italian Copyright Act. In addition, the procedure doesn’t violate the Italian constitution or fundamental rights in general, as opponents had argued.

Overall the case is seen as a significant victory for copyright holders. Not only can they continue with their site-blocking requests, but the court also clarified that all the blocking costs must be paid by Internet providers.

In other words, it's now open season on sites that rightsholders decide they don't like. No need for a trial in which to prove any actual allegations. No need to prepare a rebuttal from a defendant arguing for their own rights. Instead, rightsholders, such as Hollywood, can petition to have a site blocked and, if AGCOM agrees, the site is blocked without any due process. And, because ISPs are apparently there only to serve failing business models, all the costs associated with these review-less blocks are shouldered by the ISPs.

If you think that the copyright trolls and Hollywood aren't licking their chops to go site-blocking crazy after this decision, you've lost your mind.

“This is a big win for rightsholders,” says Enzo Mazza, chief of the Italian music group FIMI, who says that they have plans to expand the current scope of the blocking efforts.

“Our future goal is now to increase the enforcement of AGCOM to also cover new forms of piracy such as live streaming, stream ripping and similar issues. In addition, we hope AGCOM will extend the blockades to the IP-address level as the Criminal Courts are using now,” Mazza tells TorrentFreak.

And away we go. Licensing groups and rightsholders will now look to slam open the door the court left ajar for them. As the blocks are expanded, you can pretty much count on collateral damage that will harm Italian citizens and restrict their freedom both of speech and access to legitimate internet sites. But no worry, because it's not like there is a court that will oversee all of this. Instead, websites and the surfing public will live only at the pleasure of AGCOM.

That should go well.

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Posted on Techdirt - 5 April 2017 @ 5:04pm

American Division Of Persona 5 Developer Warns That Their 'Masters' Don't Want People Streaming Spoilers

from the uh,-okay? dept

This seems like something we'll need to keep repeating: revealing entertainment spoilers is not copyright infringement. What ought to be common sense is apparently not so for all kinds of content owners in the entertainment space. As such, DMCA notices or threats for DMCA notices have been used to combat spoiler releases in all kinds of forms, from movie predictions, to television show predictions, to video game footage that reveals spoilers. Some of these instances involve actual footage of the copyrighted material while some don't, but the core of the matter is that if you're talking copyright infringement because of spoilers, you're doing copyright wrong.

The latest version of this comes from Atlus, developers of Persona 5. The American division of Atlus put out a notice on its website, in which it starts off with bubbling excitement over the release of the game, but then spills into a lecture on what gamers can stream and what they cannot.

Ok, now let’s talk Persona 5 streaming and videos. Simply put, we don’t want the experience to be spoiled for people who haven’t played the game. Our fans have waited years for the game to come out and we really want to make sure they can experience it fully as a totally new adventure. Please read our video/streaming guidelines below:

Please, PLEASE do not post any specific plot points or story spoilers, and only talk about the game in broad strokes. (Good example: “The game deals with dark themes right off the bat, with a lecherous teacher and other corrupted individuals.” Bad example: “Players immediately run into trouble with the pervy teacher *spoiler*, whose actions go so far as to cause *spoiler*.”)

You’re more than welcome to talk/show Confidants, the new combat, the Velvet Room, the dungeons, etc. Just please keep in mind that as a singular story playthrough, viewers are *highly* wary of spoilers!

In-game Content Limit: Please limit video content through the in-game date of 7/7.

"7/7" refers to a date within the game itself, which means that players of this game who want to stream their playthroughs will apparently have to check their fictitious calendars to make sure they haven't reached the streaming event horizon. That in itself ought to strike you as ridiculous on its face, but reading through the subsequent guidelines about what should be streamed and what shouldn't literally had me chuckling. For example:

No major story spoilers, and I’ll leave that up to your good judgment. If you need some guidelines, avoid showing/spoiling the ending segments of the first three palaces. While you can show initial interactions with Yusuke, avoid his awakening scene, and that whole deal about THE painting. Also, don’t post anything about a certain student investigator.

This obviously takes live streaming out of the equation. How is one to know what in the sweet hell any of this refers to unless they've already played the game? And dictating commentary topics, as opposed to footage, doesn't carry any weight having to do with copyright infringement. Streamers can discuss whatever they want. And if Atlus allows streaming of its game, it's not clear to me that the DMCA or copyright law allows them to dictate the segmentation of what's allowed for streaming and what isn't.

But the stranger part is the American Atlus division's sheepish reason for putting these restrictions out there in the first place. I can't quite tell if some of this is supposed to be taken tongue in cheek or not, but it comes off sounding rather ominous.

This being a Japanese title with a single-playthrough story means our masters in Japan are very wary about it. Sharing is currently blocked through the native PS4 UI. However, if you do plan on streaming, video guidelines above apply except length. If you decide to stream past 7/7 (I HIGHLY RECOMMEND NOT DOING THIS, YOU HAVE BEEN WARNED), you do so at the risk of being issued a content ID claim or worse, a channel strike/account suspension.

Japanese masters? That just sounds creepy. Beyond that, threatening channel suspension with spoilers being the differentiating point between when that threat applies or not doesn't make any sense. I get that spoilers can be annoying for some, but that doesn't fall under the purview of copyright law. Either let people stream or don't.

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Posted on Techdirt - 5 April 2017 @ 2:43pm

German Court Rules Parents Must Out Their Family Members For Copyright Trolls Or Pay Fines Themselves

from the family-first dept

Copyright trolls are a plague spreading across the world, one which has received far too little social medicine for the taste of many. This virulent form of rent-seeking tends to put out some of the more despicable strategies, from flatout falsely accusing people of piracy, lying to international students about the punishment for copyright infringement, and threatening those that expose their actions.

But a case that was winding its way through German courts sees copyright trolls there now going even further, winning the argument over whether parents should have to serve their own children up to the courts for copyright trolls.

In 2011, a family received a letter from Universal Music, demanding cash alongside claims that Rihanna’s album ‘Loud’ had been illegally shared via their Internet connection. The parents, to whom the letter was addressed, indicated that they had no interest whatsoever in the R&B star. However, one of their three children apparently did, and the parents knew which one had committed the infringement. Perhaps understandably, however, the parents didn’t want to throw their child to the lions. It’s a position that’s supported by a local law which protects family members from having to testify against each other.

The case ended up at the Munich Court of First Instance and the parents were held liable for copyright infringement and ordered to pay almost 3,900 euros. From there the case progressed to the Federal Court of Justice (Bundesgerichtshof – BGH), which handed down its ruling Thursday. In a big win for Universal, the BGH upheld the decision of the lower court, holding the parents liable for copyright infringement.

In other words, in the name of copyright trolls that have naught but an IP address to go on, parents in Germany may now face a flavor of Sophie's Choice: give up your children to the copyright troll or pay all fines themselves. Given that we're talking about children here, that likely amounts to the same result, as parents will be the one footing the bill. Still, there is something sadistic about trying to cooerce parents into naming their own children before the court. Keep in mind that this is mere copyright infringement we're talking about, not the typical crimes for which parents have long been expected to be responsible for when their children violate the law. And keep in mind as well how often these copyright trolls are wrong, have faulty or incomplete evidence, and so on.

Levying responsibility for the failure to out one's own family member is almost comically pernicious. That the court saw fit to route around local laws protecting families from this sort of thing in the name of copyright trolls seems doubly so.

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