Posted on Techdirt - 3 September 2015 @ 10:31am
There's an old saying that those that lie down with dogs will get back up with fleas. One modern derivative of that maxim might be: if you bend over backwards for copyright censors you will become censors yourself. No better example of this can be found than YouTube's ContentID system, the automated platform that scours YouTube videos looking for uploads of identical audio or video content and proactively takes them down in favor of the original content owner. That's how it works in theory, that is. In practice, ContentID appears to be most useful in taking down fair use content, trolling legitimate creators, and even silencing political speech, supposedly the most revered thing in this great Republic of ours. It's typical in these cases for the automation to be blamed, but that's a mistake. The real blame lies with Google for implementing such a flawed system, with the entertainment industry and trolls for abusing it, and with all of us for simply accepting it. Everyone, in other words, is to blame.
I came to that conclusion recently, when Hugh Hefner used Mario Bros. to show me how silly all of this is. The whole thing started when a Kotaku writer uploaded a video of some Mario Maker levels that play themselves.
Two days ago, I uploaded a video to YouTube. It featured some awesome automatic Mario Maker levels that basically play themselves. Today, I was dinged with a copyright notice for that same video. The claimant was none other than...Playboy? I’m serious. I didn’t get flagged by Nintendo. Rather, I got flagged by Hugh Hefner’s operation.
Playboy, obviously, does not own Mario. It did not create Mario Maker. It did not build the level on display in my video. And yet my video was still flagged. What gives?
What gave was that Playboy had uploaded a video that contained one of the same levels in the other video. Because these levels play by themselves, rather than being played by a human, the videos have the exact same content. So, faster than a Mario Brother running with the 'B' button mashed down, ContentID flagged Kotaku's video as infringing and sent out a notice. Other users likewise had videos of that Mario Maker level flagged in favor of Playboy, which I am very much certain doesn't own any of the IP surrounding Nintendo's center-piece franchise. Most, like the Kotaku writer, submitted disputes which were resolved quickly. Playboy, for its part, has been active in getting all of the claims dismissed...
...which is entirely besides the goddamn point. ContentID was dinging uploaders for copyright violations in an automated fashion, with no checks, on content owned by an unrelated party. That doesn't make any sense
. And, in some cases, there can be actual harm done.
When you get flagged, the claimant has a whole 30 days to review your dispute, during which your video typically stays up while also making money for the claimant. Sometimes, the claimant will even be able to block the video from being viewed entirely. Even if the dispute gets dismissed, it might mean waiting days if not an entire month for the motion to actually get through. In the meantime, any YouTuber who supports themselves with ads and just wanted to show off the level to their subscribers, or perhaps added some good commentary to the footage, will lose revenue (as well as gain an unnecessary headache.)
Personally, I'd love to see "An unnecessary headache" as the epitaph on ContentID's gravestone.
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Posted on Techdirt - 2 September 2015 @ 11:03pm
They say that a picture is worth a thousand words. Yes, we've all heard that maxim before, but rarely does it ring so true as it does regarding the trademark case between Nestle, the candy giant, and FortiFX, much smaller makers of Fit Crunch bars. Fit Crunch bars appear to be marketed as a healthier option compared with traditional candybars. Nestle took notice of the name of the Fit Crunch bars and has claimed the name and, more importantly and central to their claim, the packaging in which they're sold, is trademark and trade dress infringement.
According to Nestle USA, which claims that Pervine's "remarkably similar packaging in combination with the confusingly similar trademark" is causing the world's biggest food company "irreparable harm", the likelihood that consumers will confuse the two products is heightened by the fact that the products are being sold to "the same consumers, in the same stores".
as always, I want to thank Food Navigator USA for forcing me to type these pull-quotes out, because simply trying to copy/paste the relevant text generates a popup telling me all about how the text on the site is copyrighted and I may not make use of it. Except that I can, because my use falls under fair use, so Food Navigator USA can suck it.
Anyway, the fact that both bars contain the word "crunch" seems in and of itself to fail to meet the bar for trademark infringement. After all, the term is simply referring to the descriptive nature of the foodstuffs of the product, in that they crunch when eaten. Instead, the trademark infringement claim therefore has to be considererd alongside the trade dress infringement claim. And that
claim rests on Nestle's description of the packaging of both products. According to Nestle's filing, "Pervine appears to have outright copied every key element of Nestle's CRUNCH Trade Dress."
As I said, a picture is worth a thousand words. Here are your outright copied packages and trade dress:
If those are identical, I am in sore need of glasses and/or new brain-matter, because those are absolutely not identical. In fact, far from being copied, I'm struggling to see what about Fit Crunch's branding is in any way similar to Nestle's beyond the use of the word "CRUNCH" and the color blue. The background images are different, the information on the packaging is different, and both packages clearly identify the source companies. Even the two candy bars themselves look completely different.
Sorry, Nestle, but this one doesn't pass the smell test.
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Posted on Techdirt - 31 August 2015 @ 10:36am
DRM, or digital rights management, can be said to have been effective in practice at accomplishing many different things. It makes products less useful, for instance. It also serves as chaff to distract the technically proficient into disabling it instead of doing any number of actually useful things. DRM is also actually quite good at making our lives just a bit less safe. What's interesting is that none of those things are the stated reason companies use DRM. Instead, DRM is explained by companies as the only way they can protect themselves from damned dirty pirates and, without it, these companies would simply not be able to make enough money to sustain themselves.
The proper counter-argument to this assertion, as it turns out, is: "Shut up, because The Witcher 3."
The Witcher 3: Wild Hunt has proven to be incredibly successful for CD Projekt RED, having sold a whopping six million copies within its first six weeks on store shelves. According to CD Projekt's latest financial results (via NeoGAF), the company earned 237 million PLN ($63.3 million USD) in net profit for the first half of 2015. The publisher also noted its open-world RPG has performed well both at retail and digitally.
Yes, a game publisher, one which released its game both in retail and in the scary, scary digital realm, has spent six weeks selling an insane amount of copies of its latest game. But how is this possible? After all, CD Projekt RED long ago promised that the game would be shipped completely sans
DRM. On top of that, the company also made every last tiny drop of DLC for the game...completely free
. In other words, CD Projekt RED decided bucking one modern trend in gaming was too easy so it decided to go for an exacta. Were the theory that lies behind every other instance of DRM in gaming existence to be true, the game should have been a failure everywhere other than on dastardly pirate sites. Instead, the game sold six million copies in six weeks. How is this possible?
It's actually quite simple: CD Projekt RED made a fantastic and well-reviewed game, didn't hamper customers with annoying DRM or pushy microtransactions, and then went about its victory lap with about as classy and gracious an open-letter
from its studio head that I can remember seeing.
One could think we have six million reasons to be happy and that’s it. We do, but that number is also a big responsibility and I want everyone to know that we, as a studio, realize that. For us, all your high praise, all the positive reviews, are also an obligation -- we’ve made a really good game but there’s still a long road ahead of us. Everyone here in CD PROJEKT RED is really attached to their work and how you, the gamers, perceive it. RED is full of artists, wild dreamers and people crazy about what they do (and sometimes just plain crazy). We lose sleep over that particular colour the sun has when it sets over Velen, and argue over arranging the furniture in a house the majority of gamers will probably never see. We’re not the kind of people who are easily satisfied and we always strive for more. I’d like you to know that.
Yes, six million copies is a great achievement for a company making RPGs, but this business is not only about that. If our games are a gallery of sound, picture and text - you are the visitors of this gallery. To an artist, there’s no sweeter sight than people enjoying their work. That’s why, in the name of all the devs in the studio, I’d like to say thanks to each and every one of you.
Head of Studio
CD PROJEKT RED
This is how CwF+RtB is done. In fact, the studio has always had a reputation for being open and awesome to its customers. The release of this game, the lack of DRM, the free DLC, and the gracious attitude is merely a continuation of a culture that fans and gamers are naturally going to gravitate towards. And so they buy. Of course they buy
. That they buy isn't the surprise. Instead, the surprise is how difficult to understand this all apparently is for the other gaming studios still traveling a different road.
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Posted on Techdirt - 28 August 2015 @ 6:25pm
I guess at this point that most people already know that Pokemon Company guards its intellectual property with the same dedication that a dog guards its food bowl after it's been filled with a rare-cooked bone-in ribeye (am I the only one that enjoys giving dogs good food?). Between going after a woman who made some planters inspired by Pokemon and suing someone for making a phone app for collecting Pokemon cards, the message is clear: don't use our stuff! Even though, as is almost inevitably the case, this kind of strict control prevents uses that actually do more to promote the Pokemon brand than anything else, and even when these cases are against true fans of Pokemon, it doesn't matter. Control is what they are interested in. Control for the sake of control.
But even knowing that, I'm still surprised that Pokemon Company has decided to shut down a Pokemon-themed PAX party in Seattle over some posters and themed-drinks.
The Pokémon Company International (TPCi) filed a lawsuit against two Seattle residents on Wednesday, claiming that the Pokémon-themed party they were organizing allegedly infringed upon TPCi's copyright.
Seattle residents Ramar Larking Jones and Zach Shore attempted to organize the "5th Annual Unofficial Pokémon PAX Kickoff Party." The party would have taken place in the 500 East restaurant and bar on Thursday, on the eve of the local Penny Arcade Expo (PAX) Prime convention on Friday.
As always, the copyright complaints are real but predictably trivial. The filing's chief concerns seem to be over the promotion of the party on Facebook, the inclusion of Pokemon characters on posters for the party, and Pokemon (and other games) themed drinks to be served. To be served, mind you, almost certainly to hardcore Pokemon fans
. Indeed, there were prizes to be given away for cosplay, dancing, giveaways. You know, a good damned time
. And for the crime of organizing a party around a franchise so beloved by its fans, the company shut it down.
TPCi's complaint notes that it aims to "put an end to and obtain redress for [Jones and Shore's] blatant and willful infringement of TPCi's copyrights." Ruckus Productions, a business entity that Jones and Shore run, is also listed as a defendant beside both individuals. TPCi is seeking damages, attorney's fees, and an order to stop future instances of the event. TPCi's complaint notes that the event had been organized annually since 2011.
Anyone want to actually suggest that the first four Poke-Parties did any kind of real harm to the Pokemon Company? Of course not, which is why the sudden hammer-drop makes absolutely no sense. As always, if there are concerns about setting precedent or protecting trademarks, handshake agreements and cheap licenses could easily be handed out to keep the party on. That way, Pokemon gets to save face on protecting its intellectual property, and the party goes on for its fans. Instead, the company specifically is looking to end the party as a primary goal of the lawsuit.
Because Pokemon isn't about fun, apparently.
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Posted on Techdirt - 28 August 2015 @ 1:07pm
The very existence of copyright collection societies, those organizations that try to find any way to squeeze any amount of money of any businesses that in any way do anything with any music, is predicated on one excuse: they do all of this for the artists. Yes, throughout the world, benevolent money-changers are digging through the pockets of mostly small business owners, just trying to get some coin for song-writers and musicians. Nevermind that they'll occasionally jack up the fees they collect when they find they actually have to do the job of protecting artists. Nevermind that the disease of corruption appears to find these collection societies to be particularly good hosts. It's for the artists, maaaan.
Except it never really is. People who aren't paid to say nice things about these collection groups seem to know this intrinsically, the same way a child somehow knows not to reach to scratch the underside of a wasp's chin in order to make a friend. Here to serve as one good example of just how not-about-the-artists these collection societies are is the Music Copyright Society of Kenya (MCSK), which is being given a stern talking to by the Kenyan government for paying artists less than a third of the money it collects on their behalf.
The MCSK boss, Maurice Okoth, is said to have appointed Nasratech as a Premium Rate Service Provider to licence and collect royalties from ring tones. His wife Shamillah Kiptoo has controlling shares at Nasratech.
The licence allows Nasratech to exploit the catalogue on any platforms as ring tones and ringback tones or any other tones required by a client. Attempts to reach Okoth for comment were futile as he did not answer calls or reply to text messages. The board says it has noted the ratio of royalties to expenditure from MCSK's audited accounts amounts to 58.9 per cent of collected revenue. Only 29.2 per cent is left, or is spared, for royalties. The other 21.9 per cent is used for other activities.
I humbly suggest that we refer to this as the Kenyan Collection Society Trifecta. You take equal parts nuptial nepotism, money-grubbing, and money-hiding -- and you have the kind of story that makes one wonder why any artist would want to be associated with these people at all. Kenya, by the by, has established guidelines for the ratio of royalties to expenses these collection groups are supposed to follow. Those guidelines require 70 percent royalties to artists and 30 percent expenditures. In other words, MCSK isn't even remotely close. In fact, it almost looks like MCSK misunderstood the ratios, in the reverse. Except that wouldn't explain the ongoing trend at MCSK.
The amount of royalties to artistes has been decreasing every year. Royalties paid in June 2014 were less than those paid in June 2013, according to Kecobo executive director Marisella Ouma. The MCSK has ignored Kecobo's requests to provide a breakdown of expenses.
In other words, MCSK isn't confused. It would simply like to keep more money, please, because this isn't about the artists and never was. This was about taking copyright law and converting it into a skimming scheme. Anyone really want to suggest that the collection societies in North America and Europe are any different?
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Posted on Techdirt - 28 August 2015 @ 11:48am
It was really only a matter of time. As cord-cutting continues as a trend and the cable TV market as we know it today struggles to stay relevant by grasping at major pro and college sports broadcast deals, the injection of a tech-industry giant into the sports ownership arena meant that the chance of streaming for sports could only increase. Truthfully, When Steve Ballmer bought the Los Angeles Clippers for $2 billion, he wasn't the first tech celebrity to own an NBA team. Mark Cuban, after all, has owned the Dallas Mavericks for some time now. But Ballmer has been quite progressive in a traditionally conservative league in pushing the Clippers forward into modernity. Given the state of the team's business practices when he made his purchase, there was always going to be a lot of heavy lifting to do. Still, it seems that Ballmer isn't going to let that keep him from considering some very big ideas.
And one of those ideas appears to be transitioning the broadcast of games away from the television model to a streaming model. The New York Post reports that Ballmer has turned down a $60 million per year contract offer from Fox and is mulling over plans for an over-the-top streaming network instead.
If he follows through on the plan, Ballmer, the former CEO of Microsoft, would be the first owner of a major US sports team to deliver games direct-to-consumer via a Web-based service and not through traditional cable or satellite companies, sources said.
Clippers games are now aired to roughly 5 million Los Angeles-area homes through Fox Sports’ Prime Ticket regional sports network in a deal that runs through the 2015-16 season. Prime Ticket currently pays the team a rights fee of $25 million a year — and offered a 140 percent increase, to $60 million, but the billionaire Ballmer turned it aside.
There are hurdles to be jumped over to make this work, of course. Production of the games is a job currently done by the networks, meaning Ballmer's service would need to come up with its own crews, commentators, and production values. That said, it feels silly to suggest that he isn't capable of that jump. More difficult would be creating a subscription model for the broadcasts, which is what the link above seems to think is the plan.
While he may have the technological smarts to pull it off, Ballmer may find it hard to earn more than $60 million in revenue a year from a single sport streaming RSN, experts said. The Clippers would have to sign up around 10 percent of LA’s 5 million households and get a pretty high price for the service, those people said.
“If it costs $12 per month, multiply that by 12 months in 500,000 homes, it would add up to $72 million — but then you’d have to produce the games and market the product,” said one.
And that’s if Ballmer can give fans a reason to subscribe during the five-month off-season. If he can’t, revenue would only come to $42 million.
And? The Clippers' deal with Fox currently stands at $25 million per year. Even under the notion that a $12/month subscription is the model, surely some percentage of fans would sign up. But, actually, I don't particularly understand why a subscription should be necessary to start with. Instead, free the product and let it grow in a streaming service that would be watchable on any internet-connected device. This means smart TVs, devices hooked up to regular TVs that can stream content, phones, computers, tablets, etc. If the accessibility of the games means that more viewers and fans can get the stream for more games than they could under the broadcast product, the advertising premium should see a correlative jump as well.
That extra revenue ought to make up for the lack of a subscription, I think. Meanwhile, you become the team with the most accessible product on the market, allowing the fanbase to grow. They might end up being America's
basketball team, leading to even more revenue. Either way, streaming might be a win for Ballmer's Clippers.
And another nail in the cable coffin.
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Posted on Techdirt - 27 August 2015 @ 6:19am
If anyone needed the perfect example of the giant waste, fraud, and abuse a government emboldened by fear and ineptitude can achieve, that example absolutely has to be the TSA's body scanners. These glorious devices that didn't work in catching weapons or explosives but did let TSA agents see you naked, and which are administered by the TSA, an agency so perfectly unable to do its job properly that all us Techdirt writers now have carpel tunnel syndrome from writing up posts on its exploits, now have a detailed price tag associated with them. So, what did the public pay for all of this fail?
Oh, only $160 million of taxpayer money, according to Politico.
The cost breakdown, which the TSA recently turned over to some members of Congress, provides the latest look at the agency’s investment in body imaging technology since it decided to make the scanners the centerpiece of the checkpoint screening process. The price tag averages more than $150,000 per unit since the agency bought the first batch of 45 devices in 2008.
And for that money, lawmakers privy to classified reports say, the TSA has gotten a woeful failure rate. Senate Homeland Security Chairman Ron Johnson has such low confidence in the scanners’ ability to catch explosives and weapons that he says the agency should make fliers walk through metal detectors after passing through the body imaging machines.
Yes, dear sirs and madams, full body scanners, so inept that esteemed government officials are suggesting people exiting them should immediately go through a traditional metal detector, come at a $150k/ea price tag. But the danger of a program like body scanners, when it comes to government malfeasance, isn't solely in the primary failure of the program. Rather, the danger is in the way the failure then begins to infect everyone around it, like some kind of IQ-deteriorating brain bacteria. For example, the esteemed SHS Chairman mentioned above, who suggested metal detectors be used immediately after the body scanner, begged pardon if you had thought he meant that the body scanners weren't still needed
“If you really want to keep using those, and I’m not saying we shouldn’t, at a minimum we should put a metal detector on the other side,” the Wisconsin Republican said in an interview. “Why not go through two? You’ve just gotta use common sense.”
Ah, yes, common sense. Well, Senator, let me try some of this common sense thing you speak of for myself. My common sense suggests that any procedure about which the following can be written ought be permanently done away with:
A recent security audit found that TSA had failed to find fake explosives and weapons in 96 percent of covert tests. And members of Congress familiar with the classified details say the body scanners are to blame for much of the problem.
Common sense does not
inform me that, rather than removal of these devices, our best bet is to simply stack devices upon devices through which we should walk, all while being uncertain of their efficacy. The problem isn't a lack
of devices to walk through; the problem is there are too many.
Homeland Security Secretary Jeh Johnson has said he has received assurances from L-3’s CEO that the company will work with the department to improve the technology.
Ah, yes, an assurance that this next go 'round they'll get it right, from a company that screwed it up the first time. You'll excuse me, sirs, if I am laughing. The point is that it's time to give up the game. The security we get at our airports is mere theater and we know it. The devices that didn't work the first time around while costing American taxpayers a hundred and sixty million dollars shouldn't get another bite at the apple. 9/11 is far enough in the rearview mirror that we can't use fear as an excuse any longer. It's time to end the masquerade and get on with it.
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Posted on Techdirt - 26 August 2015 @ 11:14pm
Normally, when we find two breweries involved in a trademark dispute, as has become common these past few years, the dispute tends to be over the extravagant artwork on the label or the equally extravagant names of specific beers. Is this Zombie-Death Murder-Gasm IPA too close in name to Vampire-Orgy Bloodpool Belgium Wheat? Who can tell?
So it's somewhat refreshing to see a case that rests on simpler claims, even if they are laughably ridiculous, such as Budweiser's inability to determine the difference in the sexes between regal nobility titles.
She Beverage Co. of Lancaster, California, applied in December to register “The Queen of Beer” phrase with the U.S. Patent and Trademark Office. Anheuser-Busch filed a notice of opposition Wednesday, arguing that “Queen of Beer” is too similar to “King of Beers” and that consumers might wrongly believe She Beverage beers are made by Anheuser-Busch.
Now it's been some time since I took sex ed, but even I can tell the difference between a king and a queen, one being male and the other female. Instead, what AB is likely concerned about is that customers will think that the Queen of Beer mark is being used by AB as some kind of counter-marketing. Unfortunately, that worry doesn't a valid trademark concern make. The test is still about the actual likelihood of customer confusion, and it seems like quite a stretch to suggest that a small California craft brewer is going to be somehow confused for the mega-corporation that pumps out Budweiser.
Interestingly, AB's opposition filing notes that the USPTO itself has had he/she confusion in the past.
Anheuser-Busch, in its opposition filing, argued that the patent office’s Trademark Trial and Appeal Board previously ruled in its favor against another company that sought to trademark “Queen of Beers.”
“The Queen of Beer mark is virtually identical to (Anheuser-Busch’s) King of Beers marks with the exception of replacing the word `king’ with the connotatively similar word `queen,”‘ it wrote in its opposition filing.
Right! Other than the key identifier of the mark being the exact opposite, they're exactly the same. Take the king/queen out of each trademark and we're left with "the", "of" and "beers." The first two words are useless as a trademark and the last word identifies the product type. This claim, therefore, must solely rest on whether using "queen" is going to make She Beverage's customers think that it's associated with the "king." The likelihood of that seems small at best. And, given that AB has admitted its run into this situation in the past, it's a bit surprising that the company hasn't even attempted to get a trademark on "the queen of beers" to avoid this very thing in the present.
Rose said she was surprised by the opposition since Anheuser-Busch hasn’t trademarked the “queen” phrase.
“There is no `Queen of Beer,’ and we’re a female-owned company,” she said. She plans to continue to pursue the trademark.
Long live the queen.
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Posted on Techdirt - 25 August 2015 @ 4:03pm
You may recall that several months back we wrote about Major League Baseball getting into a trademark dispute with Evolution Finance, who operates a website called WalletHub. The reason for the dispute was that WalletHub's logo was a white "W" on a green background, which MLB thought was too similar to symbols used by the Washington Nationals and Chicago Cubs teams. That Evolution Finance wasn't in even remotely the same industry as two major league baseball teams is a fact that appeared to escape MLB, as the league actually had the stones to claim that customers might be confused between the "W" symbols. Adding to the silliness of it all was the simple nature of the logos.
The top left image is a registered logo for the Washington Nationals baseball team, the bottom left is the registered "W" flag the Chicago Cubs fly whenever they win a game, and the logo on the right is WalletHub's. Yes they all look somewhat similar...because they're all basically just the letter "w." Similarity or no, the idea that WalletHub's logo might cause a human person with a human brain to think that it was associated with Major League Baseball requires the kind of thinking that I'm not capable of.
But all has ended well, it appears. MLB has agreed to drop its opposition to WalletHub's trademark application after the latter agreed to amend the application to absolutely needlessly clarify that it wasn't a baseball team.
The addition of a single sentence ended a lengthy period of negotiations over trademark infringement allegations over how the letter "W" was used in logos between D.C.-based Evolution Finance's financial information company WalletHub, the Washington Nationals and Major League Baseball. With that, MLB's complaint was dismissed July 14.
Evolution Finance’s original filing said it was “creating an on-line community for users seeking financial information to participate in discussions, get feedback from their peers, read and customize their news” and other services. But the new trademark application also adds “all the foregoing not relating to baseball or softball or to a baseball or softball team, league, mascot or stadium.”
If pettiness were a sport, MLB's lawyers would be winning the pennant. Honestly, this sounds more like a legal team extracting some kind of action out of an opponent simply to justify its own existence rather than an action with any actual legal interest. But, hey, trademark, amirite?
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Posted on Techdirt - 24 August 2015 @ 6:25am
We've been covering stories here about studies and claims linking real-world violence and video games for about as long as I've been a reader/writer. An even cursory review of our own record can only lead a reader to conclude that such links are, at best, nebulous, and are perhaps less likely than likely to exist. When coupled with some recent and fascinating revelations about just how easy it is to get a study to say exactly what you want it to say, and to get that study published and reported in supposedly reputable arenas, we're left with the troubling impression that such studies linking violence and gaming are more back-patting endeavors than they are true intellectual efforts.
With that in mind, you may have heard of a recent American Psychology Association report that strongly affirms the link between gaming and aggression, which is in this context meant to be synonymous with violence. This was the product of the APA's task force for studying the existence of such a link. It might represent a scientific victory for those who have long claimed that such a link exists, were it not for the predictably massive problems associated with the task force, the studies it took into account, and the methodology for the conclusions it drew. These problems are evidenced by the over two hundred academics who have submitted an open letter to the APA sharing their collective concerns over how this all went down.
One of those signees, Stetson University psychology professor Chris Ferguson, spoke with Game Informer, detailing the problems with the task force. Among those problems are details such as the task force being mostly comprised of scholars who have demonstrated in the past a willingness to link violence and aggression, the measures they used for aggression, and task force members having previously publicly supported legislation aimed at keeping games away from children.
Ferguson tells me that of the seven task force members, four had at anti-media leanings, with another that uses aggression measures that have been called into question by some factions of the psychology community. "To some degree, they're really commenting on their own product," he says. "I think people interpret these things as neutral. You have to remember that they are commenting on their own product. These are people looking at their own research and declaring it beyond further debate. All of us would love to do that, but we don't really get that chance, nor should we."
He also notes that all seven members of the task force were over the age of 50, citing a correlation between views on media and age. "I point that out because there is solid evidence that age is a correlate for attitudes about video games, even amongst scholars," Ferguson explains. "Age and negative attitudes toward youth predict anti-game attitudes."
For those of us that worship at the altar of science, this serves as a welcome reminder that science is only as good as those conducting it. Bias is omnipresent and omnidirectional and it is something we must always be vigilant against. For instance, cited in the open letter is the fact that the APA previously stated as a matter of policy that violent games should see a reduced exposure to children and that the APA had already made recommendations to the gaming industry about exactly how violence should be portrayed in games, specifically suggesting that real-world consequences should be visited upon violent actors in digital media.
In other words, as the letter states, the APA task force essentially reached the conclusion that the APA's previous work and recommendations were on point, using a hand-picked team comprised of researchers perfectly biased to reach just that conclusion. Adding to the letter's concern over some of the sloppy methodology for drawing the task force's conclusions is the kind of simple real-world analysis of data that has me wondering just how any of this made it past the APA's review to begin with.
Ferguson and his colleagues also point to data evidencing a decrease in youth violence, which contradicts assertions that media (video games and non-interactive forms) are a public health concern. Ferguson cites colleagues at Oxford, Villanova, Western Michigan University, and more that have presented recent findings in peer-reviewed journals. These studies indicate that there is no connection between violent video games and aggression. A study by Patrick Markey at Villanova indicates that "participants who were not angry tended to be relatively unaffected by exposure to violent video games."
In other words, at the exact moment that the APA suggests violence and video games are linked, and at the exact moment that violent video games have exploded in popularity and dissemination, violence amongst youth (and the general public) is trending downward
. One would think that if a link existed, we might see some evidence of it outside of ham-fisted studies utilizing questionable methodologies.
But, alas, this is the way of things. And you should expect this to continue, probably right up to the point when most of the research of this issue is being done by a generation in which gaming was prevalent in their youth. Then the studies will likely show something more interesting than a self-created echo-chamber of moral outrage.
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Posted on Techdirt - 21 August 2015 @ 6:29pm
Under Armour, the clothing brand built on the idea that my belly fat should be clung to by a shirt while I shoot hoops in my backyard, has built up quite a reputation for itself as a trademark bully. To go along with the fun story of its battle against Ass Armor, Under Armour is notorious for trademarking roughly all the things when it comes to sportswear and equipment, and has always had a liberal idea of just how much control the law allows it to have over the use of the word "armor." Most times, very little public attention is whipped up. But now they're picking a fight with God.
In 2013, a Bible-quoting high school football champ named Terrance Jackson, upset that most of the clothing options for his 3-year-old son were covered in skulls and crossbones, decided to start his own “inspirational apparel” company with a scripture-inspired name, Armor & Glory. It recently received some major attention from America’s second-biggest sportswear empire, Under Armour, which demanded the small Maryland company change its name or face all-out legal war.
“It’s trademark bullying at its finest. I’m the little kid in the group and they’re trying to kick dirt on my new shoes,” said Jackson, 37, who said the name came to him one morning, from “the full armor of God” cited in Ephesians 6:11. “When God gave this [name] to me, I never thought once about those guys. We don’t even spell it like them.”
Indeed, much as Ass Armor did, Armor & Glory's name doesn't include the "u," unlike Under Armour. Which is only a minor point, actually, because the chief test here is customer confusion and brand identity, and it takes a more imaginative mind than mine to think up exactly how a company selling a few hundred shirts is going to be mistaken for the clothing company currently chasing Nike for the sportswear crown. More troubling still is the nature of Under Armour's request. The company's legal representation requested not only that all of Armor & Glory's inventory be destroyed, but that it would also have to hand over its domain, profits, and $100k in damages and attorneys' fees.
That would equate to about every last dollar the company has ever made, since its 2013 inception. More interesting, for me at least, is that the company's core audience is Christian athletes wearing the gear in part due to the Christianity-inspired names and slogans. Lawyers for Under Armour have gone so far as to state that if Armor & Glory refuses to cease using the bible-inspired name, the result will be "an expensive and time-consuming legal battle." A more bullying statement is difficult to compose. But Jackson, thus far at least, isn't backing down. Why, you ask?
Ed Tomlin, Jackson’s partner and a former director of football development for Under Armour (who says he left on good terms), says “it’s a matter of principle and a matter of faith.” The name, he added, “was inspired by God. … To turn our backs now would be like we were being disobedient.”
How about that
for a fun First Amendment test? If anything can whip up public support in a David v. Goliath legal battle, it's the injection of some honest to goodness bible-thumping. In fact, Armor & Glory has reportedly increased sales and brand-awareness due to the threat from Under Armour, making it all the more silly for the larger company to have engaged in this silly bit of bullying to begin with.
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Posted on Techdirt - 20 August 2015 @ 10:38am
Here at Techdirt, we've had a great deal of fun at the expense of the TSA and the agency's wonderful brand of security theater masquerading as actual airport security. Yes, the government putting on a kind of clinic in the simultaneous overreach into civil liberties for false security and the kind of wasteful government spending that makes the conservative talkshow hosts of the world dip back into the Oxy has been an ongoing source of entertainment. But the TSA can take the same kind of heart that thousands of purported UFO abductees do: you are not alone.
No, as it turns out, foreign airport security agencies can be just as laughable as we can be. Witness the Irish, for instance, and the way they bravely disarmed a three year old of a toy fart-gun.
Well, I do
want a kid wielding one of these delightful toys on an airplane, sirs. The very idea of a three year old tumbling down the aisle spraying a bunch of uptight, too-stiff adults with insufficient senses of humor in the face with banana-farts is exactly the kind of life, liberty and happiness no government ought be denying my right to pursue. What's far less funny - kind of - was the Irish authorities' insistence that they confiscated the "weapon" because it violated the rules against replica guns. Replica guns typically refer to realistic representations of actual firearms that don't work. The fart gun is not a representation of a real gun at all. And it most certainly works as intended.
The spokesperson noted that the toy was "being kept safe at the airport" so the child can get it back when the family returns, so that's nice.
It's not nice; it's exceptionally stupid. The Irish authorities are sitting on a children's toy that they absolutely know is not a weapon over a ham-fisted attempt to play by bureaucratic rules. I think it's time these lads went and had a Guinness and let the kid have his toy back.
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Posted on Techdirt - 19 August 2015 @ 10:53pm
It's been a while since we last checked in on PRS, a collection group in the UK that generally goes around acting as a kind of collection of prosthetic assbags for the musical artists it purports to represent. Actions like demanding money from a grocery store employee who happened to sing a song at work, demanding money from a woman who played some music for her horses, and demanding payment from small businesses it calls up on the off chance it might hear some music being played far off in the background are all taken under the theory that PRS has the best interests of the musical artists at heart. The problem with this theory is two-fold. First, it appears that, for a collection society, PRS is very terrible at collecting money, seeing as it has come to light that it doesn't have enough money for a copyright tribunal hearing over licensing with a television station. Second, in order to support that legal effort, PRS has decided to do what it always decides to do: slurp just a little bit more money away from the artists it represents.
When rights owners choose to licence as one through a collecting society, all deal making is subject to extra rules and regulations in order to satisfy competition law. If the society and a licensee cannot reach an agreement, the matter can be taken to a special court, which in the UK is called copyright tribunal. Which is what ITV is now doing having failed to agree a new deal with PRS covering broadcasts from the start of this year.
In the letter to its members, posted by the Music Law Updates website, the PRS executive board says that: “We feel it is vital that we fully participate and vigorously defend this referral to secure a fair return for the use of our members’ work. Copyright tribunals are costly but it’s important to protect and champion your work and ensure you are fairly remunerated whenever it is used."
And, with that supposed goal in mind, PRS announces that it will increase admin fees by 1 percent on all revenue it generates from music on television
. Not just artists whose music is played on ITV, but all music on television. For those of you keeping score at home, that means a collection society that bills itself as a protector of artists' rights has unilaterally announced an increase in its fees because it actually has to do that job
, and it's collecting those increased fees from members who do not stand to directly benefit from this legal action. That, my friends, is quite an operation they have going over there at PRS.
“The Executive Board has approved a proposal for a one percent increase in our TV admin rates for a period of one year, this being the fairest way of covering the expected costs in defending this referral. While the tribunal will only rule on the ITV licence, it is an important decision for all members whose music is played on TV, meaning we are sharing the cost across all our TV revenues”.
Yes, we're taking more money from you artists who will not be affected by this legal action over this license with this television station because it's extremely important to you, because we said it is. And, keep in mind, we alone have your best interests at heart, which is why we're taking more of your money.
It's always been this way. Collection societies serve as skimming operations, gently whisking away some percentage of revenue from artists under the guise of good intentions. But what else could you expect? Given how PRS treats the general public, why would artists expect to be treated any better?
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Posted on Techdirt - 18 August 2015 @ 11:08pm
And away we go. Techdirt (myself specifically) has been talking for some time about the impending expansion of major sports streaming options as the cord-cutting trend has continued. It only makes sense: leagues and marketers will go where the audience is. The most recent trend started slowly with the FCC voting to end its blackout rule. That decision was important for streaming, because one of the dumbest ideas that migrated over from broadcast and cable television was the idea that local blackouts of broadcasts and streams were in any way a good idea. Even as the NFL, NBA, NHL and MLB all have incrementally increased streaming options, those efforts have continued to be hampered by local blackout restrictions.
Well, Major League Baseball just took a giant step over the blackout line and is now effectively straddling it, announcing that local streaming will be available in fifteen markets in the 2016 season.
There is no specific timetable for a potential announcement of a deal between FOX and MLB. The two sides hope to complete the agreement around the end of this season, which would give the league and RSNs a full offseason to market the availability of the new local streams before Opening Day 2016. MLB Commissioner Rob Manfred, working with the league's president of business and media, Bob Bowman, has made in-market baseball streaming a key league priority, including personally participating in several negotiating sessions.
Per the above, this specific deal is going to be done with MLB teams that have broadcasting deals with Fox. But don't think for a single moment that that's where it ends. Even if MLB can't get similar deals in place for the other half of teams in the league, which would fully free up the fantastic MLB.TV product for local streaming, any modicum of success that Fox has with this program will be immediately adopted by the other broadcasters. They really don't have a choice. Cord-cutting isn't going away and it's been professional and college sports that have long kept subscribers tethered. The trickle of streaming options in sports has been turning into more of a deluge, and the cable industry should be expecting some tough times ahead in the next, oh, say three to five years. Because if Manfred has this on his priority list for MLB, please believe that the commissioners in the other leagues have it on theirs as well.
And when sports streaming really
gets going, it's the end of cable as we currently know it.
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Posted on Techdirt - 17 August 2015 @ 3:53pm
We've all heard it before: [industry X] can't compete in the marketplace because the public just wants everything for free. It's a mantra taken up by the film industry, the recording industry, the literary industry, and the video game industry. And, almost always, we've found that the mantra is complete nonsense. Instead, it's been clear that the public is more than willing to purchase that which is scarce and valued. It's just that those scarce and valued things are often times not the content itself.
The retro-gaming industry is instructive in this for two reasons. Piracy is typically much easier for retro games than modern titles. Most of the older consoles have been fully emulated at this point, with ROMs and games readily available for them online. For older PC titles, retro games often have no DRM or have been cracked so long ago that the cracked files are also readily available. In addition, retro titles aren't policed the same way that modern releases are. And, yet, despite all of that, or perhaps because of it, the retro-gaming industry is exploding.
Sites like GOG.com and Steam's client offer old games with smaller pricetags. The major console-makers like Nintendo, Sony, and Microsoft all have their own marketplaces for digital downloads of retro games. Those marketplaces must be doing quite well, considering that the consoles and publishers continue to support them and expand the retro-game catalogs. And, for the actual old products, the interest and prices for retro-game pieces are skyrocketing.
Giulio Graziani says it makes him feel a bit like a drug dealer, even though he's not buying anything illegal. It's part of his job digging up a steady supply of video games from the 1980s and 1990s for his store, VideoGamesNewYork, which specializes in everything from Atari and Gameboy to rare prototype NES cartridges.
Graziani, 50, has been in business since 2003, but says the market only recently began to spike. "Five years ago, I could drive through Texas and stop in little towns and buy everything," he says. "Now they're selling games out there for more than I do!" Even simple pieces, like The Legend of Zelda Ocarina of Time, which cost $12 in 2010, now go for $25. More coveted games, like Nintendo's Earthbound, can fetch hundreds of dollars, even thousands if they're in the original box.
It's always been this way. Collectors of art will always pay for original pieces, or for the items that go along with the actual content. If the public simply wanted everything for free when it came to gaming, anyone could go on the internet and get an emulator and a copy of The Legend of Zelda and have at it. But, of course, there are scarce items that go along with the collectables that can't
be downloaded, and so the prices are paid, even as they rise. And it's not peanuts we're talking about here. Estimates for how big the retro-gaming market is come in at something like $200 million per year.
For those who aren't collectors, however, there's still a reason to buy.
Luckily, for a casual retro gamer, there are some cheap solutions to get a quick dose of nostalgia. Nintendo's Virtual Console allows you to download classic titles to play on the Wii U or Nintendo 3DS. The Retron 5 console by Hyperkin sells for $159.99 and supports games for 10 systems, including NES, SNES, Famicom, SENES, Genesis and Game Boy.
Add to that GOG and Steam, along with the old-game marketplace Sony and Microsoft offer, and the RtB here should be clear: ease of purchase and the platform. Much like it is understood that iTunes is attractive because of the platform, rather than the music catalog that is also available via piracy, so do gamers appreciate the convenience offered by these marketplaces. Which is why they're growing and selling more and more.
If anything should signal the end of the "everyone wants everything for free" myth, let it be retro-gaming.
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Posted on Techdirt - 14 August 2015 @ 7:39pm
It's been quite clear over the past two years or so that the alcohol industry, and specifically the craft beer industry, has a massive trademark problem. The simultaneous and wholly related explosions of both the sheer number of craft brewers in existence and the unprecedented interest in craft brews has resulted in more threatened legal action than anyone could have anticipated. At the heart of the issue is the cultural practice of giving specific brews funky, funny, derivative and pop-culture-based names. Because of the number of brews being developed, these names often are met with concern by a secondary party who holds a trademark on something similar. Most often, these disputes come from other breweries.
But not always. Sometimes, indeed, they come from the strangest of places. Take the case of Pigeon Hill Brewing Co.'s latest offering, the LMFAO Stout. You already know where this is headed, don't you?
The latest case in a string of trademark disputes involving West Michigan craft beverage producers didn't come from a company in the industry, but rather from a pop music group.
The band, which bills itself as an “entertainment phenomenon,” alleges that Muskegon-based Pigeon Hill Brewing Co.’s LMFAO Stout infringes on its trademarked name, according to a cease-and-desist letter sent on Aug. 11. The letter caught executives at Pigeon Hill off guard as the brewery had researched potential trademark violations in the craft beverage space prior to labeling its beer, said Michael Brower, a co-founder at the brewery.
Yes, LMFAO, the band, sent a cease and desist to the brewery over LMFAO, the beer, claiming that consumers might somehow think that the band was now in the brewing business. You see, in today's permission culture, that the brewery actually took the step of searching to see if anyone had a trademark on LMFAO for alcoholic drinks doesn't really matter. Because LMFAO, the band, saw an opportunity for relevancy and jumped on it.
“We have a very famous mark,” Thilo Agthe, the attorney representing LMFAO, told MiBiz. “We have to be very careful in policing how that trademark is used and by whom. It’s possible that customers that purchase (LMFAO Stout) might associate that with the band.”
Agthe declined to comment on whether the group had specific evidence of customer confusion related to Pigeon Hill’s beer, citing the attorney-client privilege.
I can't honestly say that I've ever heard of attorney-client privilege being used as a shield for providing evidence of a trademark dispute in this way. Probably because it makes about as much sense as me putting my dog in front of a computer and shouting at her to make me a pizza. The whole point of a trademark dispute of this kind rests on customer confusion, real or possible. The proper answer to the question of "Why the hell are you bothering with this?" isn't "Haha I can't tell you because I'm a lawyer."
And we've seen more than enough of this "We must protect our trademark" excuse used in these types of disputes. A mark owner is bound to police the use of their mark within the industry
and within the bounds of trademark law
. It is most certainly not bound to police every instance of the words or phrases being used by anyone in any commerce forever and ever amen. Especially when it's been demonstrated clearly that the use by the brewery, in this case, has literally nothing to do with the band.
Pigeon Hill settled on the name for its LMFAO Stout, which stands for “Let Me Fetch An Oatmeal Stout,” after soliciting input from social media to crowdsource the beer’s name, Brower said.
Yeah, that isn't what LMFAO stands for and they know it. That said, what LMFAO does
stand for has been around long before the pop band decided to utilize it for their name. I would expect any action brought by the band to be dismissed with haste.
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Posted on Techdirt - 13 August 2015 @ 11:34pm
Sometimes you try really hard at something and you still fail. Such is the case with Mad Dogg Athletics' attempt to keep its "spinning" trademarks from becoming generic. We wrote about the company's marks on stationary bike classes nearly five years ago, when it was busy suing several gyms in Denmark for offering spinning classes. In fact, both before and after those legal actions, MDA has been incredibly active in trying to enforce its trademarks. They tried really, really hard.
But the company failed. Much like other types of workout classes, nobody sees spinning as a source identifier any longer. Nobody thinks of Mad Dogg Athletics. Hell, most people haven't even heard of MDA. But the company hasn't given up, as shown by how it got eBay to remove a listing for an exercise bike for using the term "spin."
VeRO is ebay’s Verified Rights Owner program. VeRO allows a right’s owner (someone who has a verified trademark, copyright, etc.) to request removal of an item. This action, of course, is not without controversy. Business owners have claimed that this process is often abused and overreaching. I will leave that discussion for another day. For now, you should know that a company by the name of Mad Dogg Athletics, Inc. (MDA) is a member of the eBay VeRO Program and uses this program to enforce the nearly one hundred trademarks it owns, which include: spin, spinning, spinner, spin yoga, spinfitness, and spin daddy. With that said, only MDA’s Spin® bike can be called that, and so my client’s “spin bike” listing was removed due to use of the word spin.
Actually going after eBay listings for using a word like "spin" would be ridiculous in its own right, but this is about something much deeper for MDA: the term spinning is generic. It just is. And it's not like this kind of trademark-to-generic evolution is without precedent. Yoga and Pilates went through a similar transition, having been source-identifiers for consumers but soon turning into descriptions of a particular process or type of class, rather than any kind of brand. Keep in mind, as the link above notes, the test for whether a term is generic is the wider public's perception, not the individual purchasers' perception. Go ask someone on the street whether "spinning" is associated with any particular brand and see what reaction you get. It's generic.
I know I am not a professional cycler by any stretch, but as someone who at least recreationally partakes in indoor cycling, I had never even heard of the MDA. I bet you if I polled the people at my class, most haven’t either. It’s also important mention that on its page for “indoor cycling,” Wikipedia states, “[i]t is commonly called spinning.” Yelp allows you to search for “spin” and “spinning studio.” ABC News refers to SoulCycle as a spin studio. For the record, they are not. I dare you to search any cycling studio’s reviews for the word “spin.” Almost every review I found seemed to use the word interchangeably.
This is a good thing. And, actually, it's something that MDA could take advantage of, if it so desired. After all, MDA was
indeed the originator of the term and it would be good business to make a marketing campaign out of its expertise with spinning. Instead, MDA appears to want to rage against the inevitable with legal action after legal action. Sadly, despite all of that effort, it isn't going to work -- and the company is just, well... spinning its wheels.
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Posted on Techdirt - 13 August 2015 @ 3:48pm
Before I started paying attention to trademark issues as a part-time living, I'm pretty sure I would have thought that it would take quite a bit to get a big company's lawyers firing off threat letters and legal actions. You know, like an actual threat, or a violation of trademark that had been brought to the company's attention by confused members of the public. Instead, it too often appears that the lawyers for large companies scour the world for any-might-be-possible trademark issue that can be acted upon, like a schizophrenic pouring over the newspapers in search of that secret code the government is using to control our minds.
How else do you explain when Paramount Pictures decides to fire off a cease and desist letter to The Codfather Takeaways fish and chips restaurant in New Zealand because their sign includes a cartoon fish that resembles Marlon Brando?
As part of its signage, The Codfather Takeaways has adopted Brando's Don Corleone character in the style of a fish. Paramount, owner of the trademark The Godfather, is not impressed and through lawyers has instructed the shop to stop. But Danielle Stuart, co-owner of The Codfather, reckons Paramount is being mean spirited and says both the name and insignia are staying. Stuart was in the final stages of registering The Codfather trademark when she received a letter from Paramount Pictures' lawyers opposing the application and also asking them to stop using "The Godfather stylisation".
You can see the signage in the background of this picture of the owners.
When asked, the owners admit to the inspiration the film provided for the name and the signage, but say they're confused why Paramount is targeting them because they sell goddamn fish and not movies.
Stuart said she could understand Paramount being grumpy if she was planning to open a world-wide chain of Codfather Takeaways, but she was not.
"We are just a little fish and chip shop in a small corner of the world."
Not small enough, my dear, because the beautiful minds at Paramount are always searching for any violation. Now, there are a couple issues here. First, nobody anywhere at any time is going to think a New Zealand fish and chips shop is somehow affiliated with a Hollywood movie studio. Sorry, ain't gonna happen. Second, I defy anyone to draw a fish without it looking like Marlon Brando. It can't be done.
And finally, why the hell is Paramount bothering with this to begin with? There are any number of restaurants
and chains called "The Codfather." A fish that looks like Brando really makes this one a priority?
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Posted on Techdirt - 13 August 2015 @ 1:35pm
Let's say you're a leader in an association for NYPD sergeants. Now let's say you're, like, super aware of some of the changes and backlash against the NYPD that has occurred recently, chiefly concerning policies for policing the public, charges of racist and violent practices, and the insistance that the city government find ways to keep officers accountable for their actions. You know the city is looking into NYPD officials deleting information on illegal summons quotas. You know of the concern over the fact that the NYPD has pissed off so many black men that black men kind of don't want to join their ranks. And you're especially aware of the trend of greater protections for the public filming police doing their jobs and the crackdown on the crackdown of the photographers. What do you do?
Psshh, start a Flickr account solely for the purpose of poor-shaming the homeless to try and embarrass the Mayor, right?
The Sergeants Benevolent Association is spearheading the effort, emailing a letter to members Monday urging them and their families and friends to take pictures to document the decline of the city.
“As you travel about the city of New York, please utilize your smartphones to photograph the homeless lying in our streets, aggressive panhandlers, people urinating in public or engaging in open-air drug activity, and quality-of-life offenses of every type,” says the letter from SBA President Ed Mullins, a major critic of Mayor Bill de Blasio.
Yes, Mullins (and the ironically named Sergeants Benevolent Association) then takes those photographs and uploads them to its Flickr account
, because apparently the best way to make a political point to a political opponent is to publicly shame the least able to defend themselves. Should you not wish to view this material, something for which I wouldn't blame you, the pictures almost uniformly show homeless and vagrant folk in their own misery, often captioned with such wonderfully sympathetic thoughts as "Quality Of Life For The Mayor" and "Peek A Boo" and "Homeless Takeover NYC." The idea of shaming the homeless, who might be homeless for any number of reasons, is deplorable. As are Mullins' excuses for doing so.
Noting that more cops are being recorded on the job, Mullins wrote, “Shouldn’t accountability go both ways? We, the ‘Good Guys,’ are sworn to protect our citizens. Shouldn’t our public officials be held to the same standard?” he said.
Except the two things aren't remotely equivalent. The public photographing the police performing their duties while serving that very same public isn't the same as snapshotting a 3rd party whose lives are already miserable to take political shots against the Mayor. Frankly, these are the kinds of things said by those with head injuries, not those leading a police association. More specifically, Mullins claims this is being done in response to pending city legislation that would require police to obtain permission to search a suspect if they don't have probable cause for an arrest. You know, that thing that's already in the goddamn Constitution
? Yeah, that's
why he's encouraging police to publicly shame the homeless.
Get a grip, guys...
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Posted on Techdirt - 13 August 2015 @ 5:29am
As anyone who pays attention to technology and social trends knows, selfies have been a thing for a while now, for some reason. These testaments to the massive inflation of our own egos have occasionally created pushback in a variety of forms, from the banning of selfie sticks from roughly all the places to, sigh, intrusions into intellectual property matters as they relate to damn dirty monkeys. And, in a bit of news that missed my radar for some reason, last year New Hampshire updated its laws prohibiting the photography of voting booths and records to include criminalizing individual voters taking so-called "ballot selfies", in which they proudly tweet out a picture of a completed ballot.
The original laws against this type of thing, most of which were codified in the 1970s, typically were put in place to stave off influencing the public in voting matters by a show of votes and warding off the possibility of paid-for votes being carried out with the photograph being used to confirm the vote was completed. These goals, while seemingly laudible, are misguided for any number of reasons, including the limitation on expression for fear of a might-be-possible-future-crime and the fact that all manner of people discuss their voting habits all the freaking time anyway, such that a photograph doesn't really add much to the discussion. When my friend tells me he writes in Bear Grylls for President every four years because, hey, that dude drinks his own urine, imagine what crazy shit he'll do as President, I don't shout "Pics or it didn't happen!" at him.
And, in a moment of legal beauty, a federal judge in New Hampshire agrees and has declared ballot selfies to be free and protected speech.
In his ruling, U.S. District Court Judge Paul Barbadoro said it's speculation to think people will be coerced into selling votes if they can post the image online. During arguments in June, lawyers for the state acknowledged there are no known cases of vote-buying or coercion in New Hampshire.
"You think people are going to post a photo on Facebook?" he said [during oral arguments]. "'I'm a proud seller of my vote! I just sold my vote for $25!' At some level, you have to use common sense."
The ACLU argued successfully in favor of three voters who had been investigated after posting pictures of completed ballots on social media. Included amongst those three individuals was one gentleman whose photo showed that he had written in his own dog's name because he hated all the legitimate candidates. And before anyone in our government runs off to start investigating whether Fido in fact bribed this man to vote this way, you should know that Fido was dead at the time. Dead dogs go to heaven, they don't commit federal election fraud. Cats might, pending my further study of the possibility.
In any case, the point is that political expression is perhaps the most sacred form of free speech in our republic. A law outlawing a form of that speech in favor of concern for something that hasn't ever happened probably isn't the best way to govern.
"Today's decision is a victory for the First Amendment," Gilles Bissonnette, legal director of the ACLU-NH, said in a prepared statement. "Political speech is essential to a functioning democracy. The First Amendment does not allow the state to, as it was doing here, broadly ban innocent political speech with the hope that such a sweeping ban would address underlying criminal conduct."
Indeed. Selfies are many things, and not all of them good. But they are
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