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

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Posted on Techdirt - 11 February 2016 @ 11:23pm

Navajo Nation's Trademark Suit Against Urban Outfitters Proceeds; But Should It?

from the trademark-nation dept

Alright, this one has me more than a bit puzzled. We've written here before about Urban Outfitters, which has previously been on the receiving end of intellectual property disputes in the form of the company's use of famous Obama iconography and for trying to inject a bit of humor into its coffee offerings. This time around, however, the clothing retailer is facing a lawsuit from the Navajo Nation for selling clothing and merchandise with patterns inspired by Native American designs and including the word "Navajo" or "Navaho" in the offerings.

The clothing chain will ask a federal judge in Santa Fe, N.M., on Wednesday to limit how far back in time the tribe can go to seek money over the company's products, which included everything from necklaces, jackets and pants to a flask and underwear with the "Navajo" name.

The tribe's lawsuit alleging trademark violations has been working its way through the courts for more than three years. Efforts to settle the case featuring two unlikely foes have failed as the tribe seeks vast sums of money from the company that also owns the Anthropologie and Free People brands.
The tribe isn't specifying exactly how much it's seeking, but considering it is asking for all the profits from the relevant merchandise on some of the products in question, and $1,000 per day per item on others, we're talking about millions of dollars here. The tribe is arguing that Urban Outfitters is violating the tribe's federal and state trademarks on its name, as well as the Indian Arts and Crafts Act, which was designed to prevent the sale of goods designed to fool customers into thinking that they were actually made by Native Americans. Let's deal with these in reverse order.

Urban Outfitters is the kind of retailer you find commonly in shopping districts all over the place. The company has never attempted to draw any affiliation with Native Americans in the past. Navajo branded clothing is branded as such as an homage to the inspiration for the design. The Navajo Nation has put forth a survey showing that 40% of consumers were confused by the use, but Urban Outfitters is expected to attack the validity of the survey. Keep in mind that the Arts and Crafts Act is entirely about fooling customers into thinking that the goods were made by Native Americans, rather than having anything to do with appropriating the name of the tribe. It's the kind of thing that, even if this were an actual valid problem, could be fixed by Urban Outfitters putting up a sign that said, "These products were not made by Native Americans," or something of that nature. But that isn't what the tribe actually wants. They want licensing from the trademark of their name.

As for the trademark in question, Urban Outfitters claims that "Navajo" is generic and that the tribe has abandoned the trademark first granted in the 1940s. The Navajo Nation pushed back with some history of the term Navajo, which was apparently a derogatory term invented by Spanish settlers. The claim is that the inventive nature of the word is a rebuttal on it being generic.
The Nation disputes the allegation of genericness. It asserts that the NAVAJO® mark is inherently distinctive as either fanciful, arbitrary or suggestive. According to the Nation, the mark is a fanciful because the term “Navajo” is an archaic, invented name, and fanciful when applied to the classes of goods of jewelry, clothing and accessories. Ironically, the Nation explained that the term was originally a derogative term used by the Spanish when referring to members of the Nation. The Nation members themselves refer to themselves as Diné. Accordingly, NAVAJO® is an invented term and fanciful when applied to the goods sold by the Nation.

In the alternative, the mark is arbitrary when used to describe these goods. Finally, the Nation contends that the mark is at the very least suggestive, because it suggests or requires an extra inference that goods sold are associated with the Nation.
I'm just not sure how a trademark on "Navajo" is substantively different than allowing for a trademark on "American", "Mexican" or "Canadian." It's the name of a people, nationality, or ethnicity. I'm struggling to see how such terms on their own are not generic.

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Posted on Techdirt - 11 February 2016 @ 3:30pm

Apple Rejects Game Based On Bible Story Due To Content Including Violence Against Children

from the oh-god dept

Apple has a long and annoying history of trying to keep the content within its app store as pure as the driven snow. To do this, Apple employs an arbitrary and downright stupid sense of morality. That's how you end up with Apple banning a VR representation of the Ferguson shooting, for instance, despite the fact that it was non-graphic. Or that time the company killed off a Civil War simulation because the game contained historically accurate representations of the Confederate flag. Or when it removed an image-searching app from the store because, hey, somebody somewhere might use it to see naughty-bits.

But to really see Apple's morality turned on its head, we can now point to its rejection of a mobile version of the popular game The Binding of Isaac because it contains violence towards children. And, on the face of it, you can see Apple's point. The game, after all, does indeed have some themes that would normally raise eyebrows over at Apple.

The Binding of Isaac: Rebirth's console and platform editions are rated M by the ESRB. Promotional images for The Binding of Isaac: Rebirth have frequently shown cartoon representations of children, including the protagonist, naked and weeping, curled up on the floor in a dungeon, or otherwise mistreated.

The game itself is a procedurally generated dungeon crawler that does feature violence, but only in the sense of basic gameplay where combat is an option. Some of the dungeon's inhabitants are deformed, but again, they're rendered in a stylized, cartoonish way.
The reason the player is crawling through those dungeons is because the mother in the story is attempting to capture him and sacrifice him as an offering to the God she is hearing in her head. And, if that particular bit sounds incredibly familiar to you, it's because it's a variance on the age-old biblical story on which the game is based.
The Binding of Isaac: Rebirth is inspired by the Old Testament story of Isaac, the son of Abraham, whom God had asked to sacrifice on Mount Moriah. He is stopped at the last moment by an angel. Interpretations of it among the Abrahamic faiths vary but it is, broadly speaking, a test-of-faith story that in the United States has been taught in Sunday school for decades.
Truth be told, it's a horrible story that I'm not and never was particularly fond of, even when I was in Sunday School. Still, Apple's rejection of the app on the grounds that it contains "violence against children" would be on much more solid ground if the god damn source material, known as the various iterations of the Bible, didn't have an entire section on Apple's book store dedicated to it. Anyone really want to suggest that those holy books don't also contain violence against children?

The point, of course, isn't that Apple should also take down the bible from the app store. That would be stupid. As stupid as, say, Apple's arbitrary application of Apple Morality in a way that is equally ham-fisted and incoherent. It would be better if Apple tempted fate by taking down Eden's walls to let the public apply its own morality, whatever serpents might be found in wait.

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Posted on Techdirt - 11 February 2016 @ 8:32am

Techdirt Crowdsourcing: How Will The TSA Idiotically Respond To The Laptop Terror Bomb?

from the giving-them-ideas dept

The terrorism arms race marches on, apparently. You may have heard of the recent attack on a passenger plane taking off from Somalia. By all accounts, the attacker managed to get onto the plane with a laptop that contained a bomb, which he detonated during takeoff. The result? The bomber was sucked out of the hole he created in the plane and died, while a couple of other passengers were mildly wounded. The universe, it seems, is not without either a sense of justice or humor.

Still, you absolutely know that this will create a typical shitstorm at the TSA. Security theater stops for nobody, after all, and this latest attempt is sure to put a focus on any computer devices passengers are bringing with them on flights. Laptops and tablets are already screened by the TSA, of course, but somehow this guy got on the plane with his bomb-filled notebook. Even though it happened outside the US (so not directly a TSA failing), it's not difficult to expect that things are predictably and stupidly going to get more strict on the rest of us. We thought it might be fun to engage in a little crowdsourcing of predictions as to what the TSA reaction will be. In our writing room, your esteemed Techdirt writers came up with some ideas to help you get started:

  • If you have not upgraded to Windows 10, passengers will be forced to do so at the security checkpoint.
  • If you run a machine using Linux, yeah, you're not getting on the damn plane.
  • The TSA will have a special USB key that it will plug into every computer. It won't actually detect explosives, but it will download any nude photos you have of yourself on the machine for TSA employees to enjoy. They love that shit, after all.
  • All laptops must be in a vaccuum sealed plastic bag and cannot be opened until the plane has landed.
  • Any laptop over a certain weight will immediately be tossed in the same bin as all of the breast milk, insulin, and contact solution.
  • If your machine contains a copy of Minesweeper, you are shot on sight.
We know our community can do much better than the above, however, so feel free to comment with your own predictions for how the TSA will battle the scourge of laptop explosives that probably don't actually exist. As a side note, one wonders how useless all of that in-flight WiFi equipment is going to be in the near future.

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Posted on Techdirt - 10 February 2016 @ 3:45pm

Honda Tried To Get Jalopnik To Dox Commenter, Delete Posts, Meets The Streisand Effect Instead

from the hi-honda dept

Criticism is part of life, of course, and I tend to believe that people show their true selves most transparently when they show how they deal with criticism. Unfortunately, we've covered entirely too many stories involving people and companies responding to online criticism poorly here at Techdirt. Typically, these unfortunate responses amount to trying to censor the criticism, but it can more dangerously involve the attempted silencing of journalism as well as threats of legal action against those making the critical comments.

Too many times, websites and web services cave to this sort of censorship. But not everyone. Gawker Media, about whom I could fill these pages with criticism, appears to be pushing back on once such attempt levied against its site Jalopnik. Apparently, car-maker Honda took a negative view of some comments made at the site, purportedly by a Honda employee. For some reason, Honda decided that this distinction meant that it could not only silence the comments, but that it should receive help from the site in outing the commenter. The whole thing starts off, as seems so often the case, with some rather mild criticism in the form of a comment.

In December, a commenter calling him or herself HondAnonymous, posted a string of comments on these posts claiming to be a technician at Honda’s research and development facility. People on the Internet make claims like that all the time, but HondAnonymous seemed able to back them up with actual information about the development of the NSX and other cars. The most interesting bits were complaints about the NSX’s Continental tires (“they are garbage”) and how newer Honda engines have an issue “with the studs on the cat either backing out of the head or snapping altogether.”

Interesting, if not earth-shattering. A lot of it sounds like normal car development. The first one is a complaint we’ve seen in various early NSX tests, and the last is probably a recall waiting to happen. But earlier this month, Honda’s lawyers contacted us to say that information posted by HondAnonymous “is confidential information owned by Honda R&D Americas, Inc., and posts by that user of such confidential information breaches a contractual obligation of confidentiality owed to Honda R&D Americas, Inc.”
As Jalopnik notes, it wasn't them that posted the information. Instead, it was a commenter within the open commenting system Gawker Media uses. Regardless, apparently Honda's attorneys requested not only that all comments by the user be taken down immediately, but they also requested that the site turn over all identifying information about the user to them so that they could hunt down the leak. Think about this for just a moment and you'll see the problem: Honda wants Jalopnik's help in figuring out who this commenter is, while also demanding that the content be taken down because it violates a contractual confidentiality agreement. However, Jalopnik isn't obligated in any way to help Honda, regardless of what private contracts may or may not have been violated.

In typical Gawker fashion, Jalopnik gleefully is posting about all this, Streisanding the issue back into the news when it might otherwise have died off quickly.
It’s pretty egregious for a corporation to try to bully a news organization into deep-sixing comments from its own readers. It’s far more egregious to threaten to subpoena us if we don’t dox one of those readers. The good news is we couldn't dox HondAnonymous even if we somehow wanted to. He or she used an anonymous burner account, and we don’t track passwords, logins, or IP addresses for any of our users. HondAnonymous’ posts will stay up.

To Honda, or any other automaker: If you would like us to delete the comments of our readers or expose their identities (which, again, we can’t do anyway) again, please let me know! I am more than happy to drag your intimidation tactics into the public eye for all your customers and prospective buyers to see. Govern yourselves accordingly.
So, in trying to silence and out a critic, Honda instead finds themselves the subject of reports about the attempted silencing of the critic, whose criticism is once more in the public light. Bang up job, lawyers!

19 Comments | Leave a Comment..

Posted on Techdirt - 10 February 2016 @ 12:50pm

Facebook Prude-Patrol Nixes Another Work Of Art By A Feminist, Entirely Proving Her Decades-Old Point

from the get-licked dept

We're still fresh on the heels of Facebook's overly broad and prudish decency rules resulting in the takedown of a bronze piece of artwork in the form of a mermaid statue that features bare metal breasts. Womens' breasts, as we all know, are shameful things to be hidden from view, lest they corrupt the minds of the young children that were so nourished by them in their youth. Sigh.

Still, as dumb as that story was, and as indicative as it was of the problem of overly broad censorship guidelines employed in the name of decency, at least there were breasts. Metallic breasts, but breasts nonetheless. I have no idea how Facebook keeps this recent story from looking even more silly, in which it takes down a piece of artwork shared by Philidelphia Museum of Art that was constructed specifically to show how objectified women were in the 1960s.


The piece was created in 1964 by artist Evelyne Axell and is entitled "Ice Cream," because it is a stylized painting of a woman enjoying an ice cream cone. The entire point of the piece was to challenge society on how it views women as sexual objects before anything else, such that this image of an everyday occurrence appears tantalizing when it should not.

The museum's new post includes more details on the artwork: " 'Ice Cream' (1964) was painted by Evelyne Axell, one of the first female Pop artists. Her work can be understood as a critique of mainstream Pop Art, in which women were often depicted as passive, decorative objects. In contrast, Axell sought to depict active, confident women who pursue satisfaction on their own terms—such as the protagonist of "Ice Cream," who unabashedly enjoys her dessert. Axell’s provocative paintings challenge artistic conventions while also exhibiting a liberated, playful spirit characteristic of the sexual revolution of the 1960s."
Ironically, Facebook's removal of the original post with the image of the painting, due to it "containing excessive amounts of skin or suggestive content", exemplifies the entire point of the painting. Not only is there nothing in terms of skin to view in the painting, the "suggestive content" that Facebook is reacting to is only suggestive by way of society's myopic view on women as sexual objects. It's a woman enjoying an ice cream, not a woman performing the sex act that immediately leaps to mind. I'll admit I had the same reaction as Facebook at first, because I'm part of the exact society upon which the piece is commenting. That's the point.

For Facebook to take that down says nothing about its view on decency, but everything about how prudish censorship programs are too often employed to the detriment of much-needed culture.

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Posted on Techdirt - 9 February 2016 @ 11:23pm

NHL Streaming Service Descends Into Blackout Hell; NHL Threatens Anyone Trying To Circumvent Blackouts

from the puck-that dept

While we have written quite a bit about major professional sports leagues marching towards expanded streaming options for viewers, and while each league is making progress in that direction, not all of the leagues are equal in how they're going about it. The NHL has been by far the least progressive in this arena, which is somewhat strange given how much more progressive it has been on other issues of modernity. On streaming, however, there seems to be some flip-flopping, with the league banning the use of services like Periscope by journalists, but then seeking to piggyback on baseball's fantastic MLB Advanced Media product to get better streaming to its viewers. The entire point of increased streaming options is to get the product out to as many people as possible, grow the fanbase, and ultimately rake in more money via increased viewership.

Which is what makes is supremely odd to see the NHL fail so hard recently with its streaming product and react to that failure by menacing anyone who might try to route around it. If you weren't already aware, a recent upgrade to the league's NHL.tv product appears to have instituted a refreshed round of blackout rules for games at the exact time when other leagues are attempting to minimize the impact of blackouts. Per Deadspin:

We’ve been getting tips all week from frustrated NHL.tv customers who installed NHL.tv’s new upgrade this week, only to see the entire service dissolve into an malfunctioning mess of blackouts. At pretty much any time when games are on, the @NHLTVSupport account’s mentions are full of hordes of complainers and angry people trying fruitlessly to be able to watch games on the platform they paid $160 for.
In addition to the surprise blackouts suddenly rearing their ugly heads, it appears that NHL.tv is having trouble working across certain devices for whatever reason. Chromebooks in particular appear to be affected, but other devices render the stream into a pixelated hell-scape. This is particularly problematic for a sport that relies so heavily on high-res viewing in order to follow the puck and the action in an arena where color differentiation is much more limited than with other sports.

But adding insult to injury is the all-caps threat clause the NHL slid into the update.
IF YOU CIRCUMVENT OR ATTEMPT TO CIRCUMVENT ANY BLACKOUT RESTRICTION OR OTHER USE RESTRICTION: YOUR SUBSCRIPTION WILL BE SUBJECT TO IMMEDIATE TERMINATION AND A CHARGE OF ONE HUNDRED DOLLARS ($100.00) FOR EARLY TERMINATION WILL BE APPLIED TO YOUR CREDIT OR DEBIT CARD; YOU MAY BE SUBJECT TO LEGAL ACTION; AND THE NHL RESERVES THE RIGHT TO REPORT SUCH MISCONDUCT TO APPROPRIATE LAW ENFORCEMENT AUTHORITIES.
Lovely. So a product that doesn't appear to work as advertised, served up to a customer base that appears to have been ill-informed about the blackout rules subsequently put in place for the product, is now on notice that doing anything to address this beyond waiting for the NHL to get their shit together will lose their subscription, be charged a fine, and be reported to the authorities for legal action.

Not exactly the best way to win over existing and new customers, NHL, particularly given that you're the league that can least afford to lose any fans.

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Posted on Techdirt - 9 February 2016 @ 11:40am

Judge Blocks Release Of Anti-Abortion Videos As The Arbiter Of Journalism

from the prior-restraint dept

Abortion is one of those issues that infuriates me chiefly because it causes everyone to retreat to whichever camp they call home while throwing nuanced discussions out the window. In case I'm not being clear: that's stupid. Around these parts, however, we love a good moral stand, and we love a moral stand all the more when it forces us to stand up for a person or group we don't particularly like. That's what a moral stand is, after all. Take the Center for Medical Progress, for instance. These are the folks that propelled the abortion issue back into the public consiousness through sheer force of will and by publishing videos of their interactions with Planned Parenthood staff that was equal parts subterfuge and crass editing. Even as political candidates continue to slam Planned Parenthood as a result of these videos, state investigation after state investigation has found that the carefully edited work done by CMP portrayed a lie and that no criminal wrongdoing was uncovered. In fact, CMP has found itself indicted in Texas (!), rather than Planned Parenthood.

In other words, whatever your opinion on abortion might be, these people suck. Editing videos to make it seem like something that isn't happening is happening isn't virtuous. It's called lying, and it's a no-no.

And yet it's also at least questionable to attempt to silence these people. Echoing a judge in California who tried to suppress the original videos, a federal judge has now issued an injunction on CMP from releasing further videos it has produced of undercover interactions with abortion providers.

The ruling, by US district judge William Orrick, also details for the first time how members of the group, the Center for Medical Progress, pursued their targets and tailored their footage to maximize political damage. At the annual meeting, hosted by the National Abortion Federation, activists operated off a “mark list” and, in one case, waited to approach a particular doctor until after she had been drinking.

Before releasing its first videos of Planned Parenthood employees, the center circulated a press release with “messaging guidelines”, Orrick wrote. The goal, the release said, was to inspire “Congressional hearings/investigation and political consequences” for Planned Parenthood, and increase “political pressure”.

Orrick previously blocked the center from releasing any footage taken at the NAF meeting. On Friday, he rejected claims by the Center for Medical Progress and its founder, David Daleiden, that its activities were a form of investigative journalism protected by the first amendment.
Again, operating under the stipulation that the CMP is disingenuous at best and that its videos are the worst kind of biased journalism, it's difficult to see exactly on what grounds Judge Orrick has deemed himself the arbiter of journalism standards. And he better have some hefty ground on which to stand, because prior restraint of speech isn't the sort of thing entered into lightly in America. Garbage journalism is still journalism, after all, and if we're really going to consider stripping speech rights from those that selectively edit content in order to make their point, then we're going to have to cull a great deal of the journalism out there as well.

Orrick focuses on how misleading the videos are and then claims them to not qualify as journalism. But, should these new videos indeed constitute defamation by being so egregiously edited, there are legal remedies for that. That's what the courts are for, after all. But to proactively attempt to restrain speech on the evaluation of a single judge?

For what it's worth, reports seem to suggest that the CMP has decided to ignore the judge's orders and has released at least some of the new videos anyway. That will likely lead to more legal action against the group. But it shouldn't. Speech is to be protected as a moral stance, even bad speech.

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Posted on Techdirt - 5 February 2016 @ 3:43pm

Moosehead Vs. Mus Knuckle: The Most Canadian Trademark Spat Ever

from the eh? dept

We've been talking about the insanity occurring in the beer industry regarding trademark for quite some time now. If you haven't been following along, the short version of this is that as the craft beer revolution has exploded the number of breweries taking part in the industry, so too has it exploded the number of trademark spats within it. In some senses, we should have seen this coming. Given the number of new players in the market with the limited linguistic resources available with which those players could name their companies and products, perhaps it was somewhat inevitable that some of the companies involved would try to lean on trademark law to fend off what they saw as impeding competition with too-close brand names. That said, many of these conflicts fail to live up to the purpose of trademark law, many of them giving barely even a nod towards an actual concern over customer confusion. Instead, protectionism reigns.

That seems to be the case in a spat between two Canadian breweries, with Moosehead Brewery claiming that the much smaller District Brewing Company's Müs Knuckle brew is too close in name and therefore infringing of the former's trademark.

Moosehead and Müs Knuckle are two breweries in a battle over trademarks. Short version, Moosehead says that Müs Knuckle is too close to their trademark for beer. The idea is that Müs Knuckle could be confused for a Moosehead product, or at least that’s what Moosehead thinks, and that’s why they are going after the smaller, Saskatchewan-based brewery.

The case is a bit of a stretch, largely due to a lot of the specific choices that Müs Knuckle has made. The packaging is not very similar outside of the glass used, the Regina company going with a predominantly blue label design in a diamond shape, whereas Moosehead is oval, green, and has a moose as part of the logo itself. The fact that Müs is also deliberately misspelled is another aesthetic choice that works to the advantage of the smaller company, it can be argued that they are trying to distance themselves from their more established competitor by stylizing their name.
Left out of the analysis above is the, um, colorful connotation of the term "moose knuckle", the explanation of which I'll allow you to discover for yourself should you need to. What the above should indicate to you is that this trademark action is all about the word "moose", including variations of the word that are entirely made up, such as "müs", which isn't a real word. Beyond that word, nearly everything else to do with the packaging and trade dress is different, save for them both being in a green bottle. Which, you know, how many types of bottles can you use for a beer? So, the question to be answered here is whether customers will find themselves confused into thinking two different breweries selling beer that incorporate differently spelled versions of the word "moose" are actually the same, despite everything else to do with the packaging of the products.

Looking at the trade dress of both side by side, I would say the question is easily answered.



Confused? Yeah, I didn't think so. In addition to having different fonts, colors, label shapes, names, and spellings, Moosehead includes and image of a moose's head, while Müs Knuckle doesn't include any images of a moose knuckle, because that would be porn. The original post appears to agree.

It’s our natural inclination to go for the underdog in cases like this, but in this case it’s the right instinct. The reason is that the Müs Knuckle brand is far enough out from the design and image of Moosehead that it’s clear this is a very flimsy case, as well as a case that is meant to push just how far the larger brand can take their trademark. It’s also a case where the intended purpose of the trademark – reducing consumer confusion – is being used to push competition in the sidelines. A smaller company, Müs Knuckle would have difficulty paying for a massive re-branding, especially as it would have to spend a great deal of effort trying to get their audience to recognize the new name and package. It could be a death blow to a brand that is quietly establishing itself, and a blow caused by a brand that is not substantially similar to the new product.
Expect this dispute to meet a quick demise. If not, then good luck to the Canadian brewery industry in developing new brands.

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Posted on Techdirt - 4 February 2016 @ 2:00pm

NBC, Filthy Pirates, Sued Over Use Of Photographer's Work Without Permission

from the live-by-the-copyright,-die-by-the-copyrigfht dept

NBC has made its views on piracy quite well-known over the years. For instance, we all know that it thinks that piracy is the most horrible damned thing that exists on this planet, so much so that it would please like ISPs to act as its personal police force. Oh, and because NBC also just cares so much -- could we all just have our kids take a break from learning about stuff to listen to how awesome copyright is for a while? Also, however, piracy is pretty sweet when it's convenient for NBC, or when it doesn't want to bother coming up with its own images for its websites.

And so it goes, with NBC recently on the receiving end of a copyright suit over The Today Show's use of a photographer's work, not only without permission, but while happily giving credit to the wrong party on top of it.

Photographer Alexander Stross filed a lawsuit at a Texas federal court accusing the Today Show of infringing his work through multiple venues. In the complaint (pdf) Stross explains that a series of photos he took of micro houses in Texas gained mainstream new attention earlier this year. It was also covered in a segment of The Today Show, reaching an audience of millions of people.

However, the photos shown on air were used without permission from the photographer. In addition, one of the photos was posted in a tweet without attribution, which is still online today. A day later this coverage was followed by an article on The Today Show website, again featuring the infringing photos. To make matters worse these were credited to a third party.
The credit on the photograph on the website went to Matt Garcia Design, the architect of the house, which is not of course how copyrights on photographs work. You would think this is something that NBC would know, seeing as how it is the arbiter of all things copyright, to the point that it insists on being consulted on how copyright is taught within our schools. Oh, and The Today Show actually mentioned Stross as the photographer who produced the photos in its segment, so there's that.
When Stross learned of the use, he first attempted to contact NBC, but received no response. Then he tried again, and was likewise ignored. It took Stross hiring a lawyer to get NBC to respond in any way. NBC then attempted to say it had gotten permission to use the photographs from the architect, except its evidence of this seems to indicate it only attempted to do so after the infringing use.

When contacted by counsel, Defendant claimed to have obtained the Photographs - and advance permission to use them - from architect Matt Garcia. Upon information and belief, neither is true. Rather, correspondence provided to Plaintiff by Defendant, reflects the following:

• On May 8, 2012: Amy Eley -- a producer working for Defendant -- requested press materials and photographs from Mr. Garcia, who replied that he had a photo shoot coming up, and asked her to wait until they were finished. There appears to have been no further correspondence between Ms. Eley and Mr. Garcia.

• At 2:17 p.m. on May 12, 2015: after Defendant ran the On-Air Segment; after it posted the Tweet; and after it published the Web Article -- a freelance writer named Julie Pennell contacted Garcia and informed him that she was writing a piece on the houses for Today.com. She asked if new photographs had been taken, and whether she could use them (failing to advise Garcia that Defendant had already used the Photographs). Garcia informed Pennell that the scheduled photo shoot had been cancelled, and asked if she would like copies of other photographs that he had -- which happened to be Stross’ Photographs.
None of that seems to equate to permission to use the photographs offered by Matt Garcia Design, which doesn't really matter since the architect doesn't hold the copyright for the photographs. To be clear, NBC may have a reasonable fair use defense here, but that's not what it claimed when originally approached at all (though it likely will in the lawsuit). And given NBC's past insistence on being purely copyright maximalist (and even fighting back against fair use at times), it's yet another situation in which a company or individual who attacks others screaming copyright infringement may not actually have cleaned up its own house first.

Look, it's quite easy to commit copyright infringement. People do it all the time, often without ever even realizing it, as they go about their days doing their jobs and living their lives. But NBC simply can't put itself out as the copyright police -- or even suggest that it's somehow "easy" for others to properly recognize what's infringing and what's not -- while at the same time finding itself on the defendant end of these kinds of lawsuits. And that's really the key point here. Copyright maximalists like to assume that infringement is a black or white issue, that it's obvious and that it's obviously "bad." But, almost without fail, we find examples of copyright maximalists being accused of infringement themselves. And that's because it's not at all easy to detect, and quite easy to infringe without realizing it. And when you can so easily accidentally break a law that can lead to massive damages, it certainly suggests that perhaps it's time for reform. But, somehow, I'm betting that NBC Universal will continue to push in the other direction, even as it faces down this lawsuit.

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Posted on Techdirt - 4 February 2016 @ 8:26am

Key And Peele To Livestream 'Sports Commentary' During An 'Upcoming Sports Game' That They Can't Name

from the the-game-that-must-not-be-named dept

Every year about this time, it's become a running joke what the NFL tries to do in controlling who says what about the Super Bowl. It's gotten to such absurd levels that I've taken to calling it "The Game That Must Not Be Named." Setting aside the insanity that is having ICE go piracy hunting just prior to the game to make sure that nobody can see the product outside of the official channels, the NFL also enjoys pretending like it can control how advertisers refer to the sporting contest. The key aspect of the NFL's demand is that nobody can use the term "Super Bowl" in advertisements unless the company is an official sponsor. That, of course, isn't even remotely true, but pretty much everyone buying ads bows at the NFL altar. This has also given birth to creative ways for advertisers to poke fun at the NFL for being such asshats, such as the Newcastle Brewing's lovely entry a few years back, when it produced an advertisement about an advertisement it didn't make, in part because the NFL wouldn't allow them to say "Super Bowl."

Well, the tradition continues, it seems, with Key and Peele promoting Squarespace by setting up a website to do "Game Day Live Commentary", called Real Talk, with a timer countdown that appears to coincide with a big sporting event occurring this weekend. Notably absent at their site, with all kinds of information about what they're going to be doing in terms of "sports commentary" on a "football" game, is any mention of the phrase "Super Bowl." Because... the NFL. They even give a shoutout to this insanity in one of their promos.


While it would be easy to let frustration dominate while thinking about how the NFL's overbearing stance has given rise to any of this, instead let the futility of it all sink in and enjoy a laugh at the NFL's expense. Does anyone not know what Key and Peele are referring to? Of course not. Anyone confused as to what the timer at the top of the page is counting down to? Nope. Is there anyone at all that gives even a moment of thought to differentiating which ads feature the term "Super Bowl" and which use some stand-in term to dance around it? No, dear friends, there is not.

Meaning that the NFL has accomplished exactly nothing, other than to create an atmosphere where the advertisers they want to become sponsors choose instead to gain attention for themselves by mocking the NFL's attempt at protectionism instead. That isn't exactly the Streisand Effect, but it's something similar.

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Posted on Techdirt - 3 February 2016 @ 11:23pm

The Wil Wheaton Effect Is Why Video Game Makers Should Embrace Let's Play Videos

from the game-theory dept

We haven't made a secret of our appreciation for Wil Wheaton here at Techdirt, in particular for his forward-thinking approach to digital content and intellectual property. More specifically, I've mentioned in the past that I am hopelessly addicted to Wheaton's YouTube show, Table Top, on which he features a series of table top board games being played by himself and a rotating panel of guests. As I was poking around trying to figure out when the series would resume for its fourth season, after amassing tons of crowdfunded money for the previous season, I came across an interesting thread discussing what had been dubbed "The Wheaton Effect."

This thing is big. This could do a lot for our hobby. It's easy to think that these are existing gamers being introduced to new games, but I had at least two people who were not really gamers start conversations like "So hey, aren't you into board games? Well I just saw this thing on the internet..." after the first episode. All of this being said, I'm getting Tsuro.
Now, we happen to know a thing or two around here about terms that get dubbed an "effect", especially when the revolve around exposure through internet channels. The Wheaton Effect is essentially a noticeable jump in sales for games that are featured on Table Top. As the original Reddit poster implies, the exposure generated by the game being featured on the show is a boon for sales. I would think this is an intuitive idea, in which an otherwise unaware public becomes aware of the fun to be had through these games and then goes out and buys them.

So, if this is a thing, as it appears to be, why in the world do some video game makers take a different approach with "Let's Play" videos, whether it's attempting to claim the monetization of them, control the content within them, or outright take them down via DMCA notice or by using YouTube's ContentID? It doesn't make sense if these types of videos result in exposure that leads to sales.

And, to be fair, much of the gaming industry has come around to this idea. You can see the evolution not only in the stance of the publishers, who often times go so far as to work with sites to unblock Let's Play videos that were automatically nabbed by ContentID, but also in video game hardware itself. The latest generation of consoles, specifically the Playstation 4 and Xbox One, are both designed specifically with ways for gamers to record gameplay and share those recordings. But Nintendo and some other lagging studios are more restrictive and I can't imagine why. Sales are what's important and exposure brings with it sales. The Wheaton Effect is an example of this, but this concept isn't in any way limited to the realm of table top games. Give up just a little bit of control, it seems, and you spur on sales.

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Posted on Techdirt - 3 February 2016 @ 2:07pm

Take-Two Software Sued Over Copyright On NBA Players' Tattoos

from the ink-blot-test dept

Are tattoos covered under copyright law? Yeah, probably. But also, hey, maybe not. But if yes, how much control does the artist get to exert over depictions of the copyrighted tattoo? After all, it's on somebody's skin. And, hey, that somebody might be famous, like an athlete, who might then be depicted in video games about that sport. If so, then we get to find out if depictions in artistic works, such as video games, would fall under fair use and/or First Amendment provisions. It seems nobody is actually sure how to answer these questions, because what few cases have been brought before the court all appear to have ended in settlements and low-level court rulings.

Which, I suppose, is why they seem to keep on a-coming. The latest is a company named Solid Oak Sketches, which claims to own the copyright on the tattoo designs appearing on the bodies of several NBA players, including LeBron James, Kobe Bryant, and DeAndre Jordan. The company has recently filed a copyright infringement suit against Take-Two Software, makers of the NBA2K franchise.

Solid Oak is suing Take-Two Interactive Software and other companies associated with the videogame NBA 2K16 for unauthorized reproductions of those tattoo designs. The question over whether tattoo designs are copyrightable has never been fully decided by a court, as acknowledged in the new lawsuit. Victor Whitmill's lawsuit against Warner Bros. over Hangover 2 settled as has other disputes including one by a tattoo artist, Christopher Escobedo, who inked a UFC fighter and later asked a bankruptcy court to determine the value of his tattoo claim against videogame publisher THQ.

On one hand, copyright law protects original works of expression fixed in a tangible medium. In the Whitmill case, before it settled, the judge commented, "Of course tattoos can be copyrighted. I don't think there is any reasonable dispute about that." An opinion was never issued, however. In the THQ case, Escobedo was awarded $22,500 for his lion tattoo. Then again, it could be argued that tattoo appropriation in an expressive work is de minimus.
Not only that, but when combined with a First Amendment argument, it's difficult to see exactly why tattoo artists should hold any kind of sway in these cases. The depiction of the players has been licensed by the NBA Players Association, after all, and the tattoos faithfully reproduced within the game are a part, albeit a small part, of that image. I'm struggling to understand why Solid Oak's quarrel is with the game-makers and not the NBAPA. But even then, the idea that players' rights to license their own images might be stilted by what is essentially a form of voluntary branding, a la cattle, is insane.

As it happens, I am a player of this particular franchise. The tattoos add to the ambiance and realism of the player depictions, but they aren't in any way central to the game. Arguing otherwise is silly. Yet, because LeBron James was featured on the cover, the lawyers for the plaintiff argue that the tattoos are "the face" of the game, thus arguing for higher damages than the Escobedo case. Note that the tattoo on LeBron James' arm in question is a portrait of his son. They had previously asked for just over $1.1 million in a demand letter for a perpetual license.

As in most other similar cases, I would expect Take-Two to settle, but I truly hope they do not, because it's way past time that we get some clarity on whether or not tattoo artists can hold hostage likeness rights in this way.

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Posted on Techdirt - 2 February 2016 @ 3:33pm

Hasbro Sued For Font Piracy On My Little Pony Merchandise

from the live-by-the-copyright,-die-by-the-copyright dept

Live by the copyright, die by the copyright, as I've said before. See, copyright protectionism is sort of like taking a moral stand: when someone asserts the importance of their copyright, they assert it for all copyrights. For most of us, this is not a problem, because we don't spend a great deal of time bashing others over the head with the copyright cudgel. But when you're Hasbro? Especially considering all of the many various actions taken by the company to shut down anything having to do with its My Little Pony property? Well, then it would be nice if the company might at least make sure it wasn't committing copyright infringement in selling that property as well.

But that appears to be asking too much. Hasbro is finding itself the subject of a copyright infringement action over the font it uses on basically everything My Little Pony.

According to Font Brothers, American toy multinational Hasbro did so when it started to use the “Generation B” font for its My Little Pony products, without permission. The Generation B font was created by Harold Lohner and is commercially exploited by Font Brothers. One of the best known uses of the font is for the popular My Little Pony toys and videos. However, according to a complaint filed at a New York federal court Hasbro failed to obtain a proper license, so My Little Pony is using a pirated font.
From the complaint itself, it appears Hasbro was not only using the font internally without a license, but was distributing it to third parties as well.
Upon information and belief, Defendant Hasbro has used or instructed others to use unauthorized copies of the GENERATION B Font in the creation of, but not limited to, all products, goods, merchandise, television and film properties, and advertising materials connected with the “My Little Pony” product line and by way of third party vendors authorized to sell “My Little Pony” branded goods bearing the term “My Little Pony” using the GENERATION B Font, showings of which are annexed hereto as Exhibit D.

Upon information and belief, Defendant Hasbro has not purchased the special license from Font Brothers which authorizes the use of the GENERATION B font software as a resource for use on goods for sale and for distribution to third parties or in the creation of its various HASBRO “My Little Pony” branded goods, products, and/or services.
Oops. The complaint goes on to note that Hasbro had repeatedly been made aware of the lack of license and authorization for the font, but that the company had failed to even bother to respond. Keep in mind that the company appears to have used this font on tons of products and merchandise, including on its own site. And distributed it as well. All while being aware that it was unathorized to do so. Sort of puts a couple of fan-made My Little Pony games into perspectrive, doesn't it?

And, lest you think that this is all some misunderstanding in which Hasbro used a different font that was somewhat simliar to GENERATION B:
While small differences can sometimes be tricky to prove that an unauthorized font is used, in this case it is also used on Hasbro’s website. The stylesheet of the website specifically mentions the Generation B and a copy of the font stored and distributed through Hasbro’s servers.
Hasbro has since removed all uses of the font from its website, which rings more as an admission at this point than complying with any requests. And, sure, maybe super-aggressive copyright protection over the use of fonts can be a little silly at times, but it's going to be hard to find any friends to fight in your corner when you've been beating everyone over the head with copyright all these years.

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Posted on Techdirt - 29 January 2016 @ 2:07pm

Pick A Side: Video Of Creepy Girls Singing To Donald Trump Taken Down Over Copyright On WWI Song

from the yuge dept

I really hate stories where there is no one to root for. Unfortunately, this is one of those stories. C'est la vie. If you were ambulatory enough to get to your computer these past few weeks, you likely came across a video from a Donald Trump rally, in which a group of five young girls, only three of which are seen in the video, called the USA Freedom Kids hip-bobbed a serenade to the Trumpster about how awesome America is. It was horrible. It was jingoistic and patronizing with just a dash of discomfort as these young girls were dressed in pleated red, white and blue skirts and tops. So that you don't think I'm exaggerating the level of horror here, see the video of the whole thing below, if you can stomach it.


That video is from the YouTube account for The USA Freedom Kids. I embedded their video instead of this one that was uploaded by a Phoenix, Arizona Fox affiliate, because, well...




Yeah, it was taken down by EMI. But why, you ask? While many of us would thank anyone or anything that could tear the existence of this horror show away from wherever unsuspecting innocents might happen across it, what stake does EMI Music have in this song sung by The USA Freedom Kids?

It’s possible that YouTube’s auto-removal bots finally caught some infringement (real or perceived) on the song, though if that’s the case, it’s odd it took them so long.

The more likely case, though, is that someone realized that “Over There,” the World War I song that Freedom’s Call’s tune is taken from, is still copyrighted. And that the copyright belongs to Sony/ATV Music Publishing, EMI Music Publishing’s parent company. Fox 10 Phoenix didn’t immediately respond to a request for comment, nor has EMI.
Given the autobots haven't gobbled up other versions of the recording, it appears most likely that EMI specifically targeted the one shared by Fox. Now, look, what the hell am I supposed to do here? I don't want that video to exist, but I also don't like EMI being able to disappear content of any kind in favor of protecting their rights to a song that was created before my grandfather graced Earth. It's like trying to decide whether to back Stalin or Pol Pot in a fistfight: I'm just wishing there was a way where everyone could lose.

There are so many reasons why it's ridiculous that EMI could take down this video to begin with: the age of the song, the nature of the use for political speech by these girls, the fact that a news organization did the sharing in its capacity on reporting the news, etc. But this is what you get when you mix silly politics with insanely over-reaching copyright law, I suppose.

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Posted on Techdirt - 29 January 2016 @ 3:26am

Sad Raiders Fan Tries To Keep Team In Oakland By Squatting On Trademark

from the that-won't-work dept

I'm not certain why people think this will work, but there seems to be an idea floating around a few of our fellow citizens that they can simply force their favorite sports teams to do what they want by filing trademarks for things they never intend to use. You may recall the story about a jackass in North Dakota who wanted to prevent the University of North Dakota from changing its name from The Fighting Sioux to, well, anything else that had been suggested by filing for trademarks on all the other things that had been suggested. Such a strategy was doomed to fail from the beginning for any number of reasons, but mostly because you actually have to be using what you're trying to trademark in commerce in order to get it approved, and trolling isn't a commercial enterprise as far as I know.

Now we have another story, though it shifts from one of trolling to one of simple sadness, as a Raiders fan who doesn't want his team to move to San Antonio, as reportedly might soon happen, has decided to launch a preemptive strike by filing for a trademark for "San Antonio Raiders."

An Oakland Raiders season-ticket holder who wants the team to remain in the East Bay has filed a trademark application for the name “San Antonio Raiders.”

“I figured if I took over the name, San Antonio Raiders, I could force (the team) to stay in Oakland,” Lane Blue of Fresno, California, said in a phone interview.
I'm loathe to heap any real anger upon a Raiders fan, because it seems to me that life as a Raiders fan must be so horrible so as to warp the brain to some degree, but anyone with a bare minimum of knowledge of how trademarks work knows this isn't going to work. Again, you have to use the mark in commerce to get a trademark at all, and Lane Blue would have to show that he's using the mark in a way with which the Raiders would be competing. Also, if the team really is planning on a move to San Antonio, it would be criminal for the team's lawyers not to have already begun the trademark filing process. Regardless, you can expect the application to be reviewed and summarily denied.

But the larger point is that this is a symptom of what permission culture does: it makes the uninformed think that tools like trademark allow for a sort of monopolistic control where it actually doesn't. Why does it do this? Well, because too many times trademark, and other intellectual property laws, skirt or outright cross the line into that exact sort of heavy-handed protectionism, albeit in a less obvious way.

So sorry, Raiders fan. You can't use intellectual property to force your team to stay nearby. Now, maybe if your last name was Disney, on the other hand...

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Posted on Techdirt - 26 January 2016 @ 11:42am

If You Use An Adblocker You Hate Free Speech, Says Internet Ads Guy

from the swing-and-a-miss dept

Mother of God. You may recall that we recently discussed the Interactive Advertising Bureau's (IAB) unfortunate decision to refuse Adblock Plus' registration for its annual conference. At a time when adblocking software is seeing its greatest use, it seemed to us that the IAB and its members might have a great deal to learn from Adblock Plus and that, rather than walling off its conference to them, the IAB could instead try to learn why so many people are using that software and software like it. That is because I had thought at the time that the IAB's refusal had mostly to do with it seeing such software as a threat to its members' business. Well, the conference has begun and in the keynote speech delivered by IAB chief, Randall Rothenberg, we learn that barring Adblock Plus from the conference wasn't about ad revenue at all. It was about freedom of speech, an appreciation of diversity, pushing back on racist Republican presidential candidates, and good old apple pie America.

Yeah. Fucking seriously. Here is a transcript of the speech, but I warn you not to have eaten anything just before reading it, or else be prepared to wear your meal on your shoes. The whole thing starts off with a several-hundred word introduction on the history of the IAB and just how unimaginably awesome it is, at the conclusion of which Rothenberg states with a straight face: "Of course, we are not here, you are not here, to celebrate the past." Well, hey, thanks, how about giving us back the last twenty minutes of our lives then, sir.

But, no, Rothenberg then states that we're all listening to him to discover how online advertising is going to generate "The Next $50 billion", except only moments later we're not really talking about that and we're instead talking about how we're going to create something much more valuable through advertising: altruism.

But if money is your only goal, then you risk falling into relativism – a pernicious trap, for you begin weighing all potential returns based on the single metric of how much more money you can make. Truth, beauty, fairness, justice, honesty, civic pride, neighborliness – they become means to an end, rather than ends in themselves. That is debilitating, and ultimately deadens the soul. I want you to confront that challenge. I want you to remember that there are greater and longer-term values than the mere promise of financial wealth that attracts so many to the digital advertising industry.
Those values are then outlined and explained. Diversity is first up, with Rothenberg decrying Republicans for the statements by some of their presidential candidates. Not sure what that has to do with anything, but okay. Freedom of speech is up next, with Rothenberg declaring that open access to speech is important for the internet and digital advertising. Which, fair enough. He goes on to note that free speech and advertising are linked, in that advertising is a form of content and should not be censored. Keep this notion in mind as Rothenberg pivots his speech jarringly into the following rant.
And this is why I hate the ad-block profiteers.

Now, you may be aware of a kerfuffle that began about 10 days ago, when an unethical, immoral, mendacious coven of techie wannabes at a for-profit German company called AdBlock-Plus took to the digisphere to complain over and over that IAB had “disinvited” them to this convention. That, of course, is as much a lie as the others they routinely try to tell the world. We had never invited them in the first place. They registered for this event online. When we found out, we cancelled the registration and reversed their credit card billing. Why? For the simple reason that they are stealing from publishers, subverting freedom of the press, operating a business model predicated on censorship of content, and ultimately forcing consumers to pay more money for less – and less diverse – information.
He then, hysterically, goes on to deliver a whining anecdote about how Adblock Plus convened a meeting with online publishers to discuss how to improve advertising on the internet -- the very thing we here at Techdirt thought made sense -- and that at the meeting almost nobody showed and those that did felt slighted that Adblock Plus wouldn't hand over every last detail of its business model, centering around its "Acceptable Ads" program. In other words, Adblock Plus wanted to open a conversation with these people, didn't simply allow advertisers to dictate to them how to behave, and as a result the IAB wouldn't let them at its conference...and its Adblock Plus that's against diversity and free expression. Yeesh.

He goes on to complain that these publishers didn't receive follow up calls or messages after Adblock Plus' conference. Gee, maybe they thought they'd be at the IAB conference you won't let them into?

After detailing several other barbarians banging at the IAB gates, he goes on to complain about their business model.
The ad-block profiteers are building for-profit companies whose business models are premised on impeding the movement of commercial, political, and public-service communication between and among producers and consumers. They offer to lift their toll gates for those wealthy enough to pay them off, or who submit to their demands that they constrict their freedom of speech to fit the shackles of their revenue schemes.

They may attempt to dignify their practices with such politically correct phrases as “reasonable advertising,” “responsible advertising,” and “acceptable ads”; and they can claim as loudly as they want that they seek “constructive rapport” with other stakeholders. But in fact, they are engaged in the techniques of The Big Lie, declaring themselves the friends of those whose livelihoods they would destroy, and allies to those whose freedoms they would subvert.
Here's how a free market, another value worth holding onto, actually works. Let's say Adblock Plus or another software provider was blocking useful ads with fun content from a publisher and instead injecting its own advertising to generate revenue. Advertising that wasn't as useful or entertaining as the original publishers. Why would anyone use that software? They wouldn't. It would defeat the entire purpose of using an ad blocker. The problem would solve itself. Or let's say the other practice was employed, with ad blockers getting publishers to pay to let the ads through that users were trying to block by using the software. Why would anyone use that software? The problem would, again, solve itself.

No, this ends up being about what it's always been about: the content and quality of the advertising. Content is advertising and advertising is content and the only way that ad blockers get used is by letting more good content in and keeping more bad content out. And Rothenberg knows it.
But the best news of all is that the ad-block profiteers have done this industry a favor. They have forced us to look inward – at our own relentless self-involvement – and outward, to the men, women, and children who are our actual customers.

IAB Senior Vice President and Tech Lab General Manager Scott Cunningham put it best and most succinctly in an October IABlog post: “We messed up. As technologists, tasked with delivering content and services to users, we lost track of the user experience.”
It goes on from there, noting just how shitty digital advertising has become. So then why in the sweet hell are you putting ad blocking software, for profit or otherwise, in the crosshairs at all? They're the symptom of the very disease you yourself have properly identified: shitty ads. You fix that and you fix everything.

But, no, instead we get a speech all about how awesome the IAB is and, strangely, how ad blocking software is in favor of racism and speech censorship, so long as it makes any money. We're here, after all, to talk about the next fifty-billion dollars we're going to make. But not because of the money. Because of our altruistic values.

Please.

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Posted on Techdirt - 25 January 2016 @ 8:31am

When You Crack Open The Surveillance Door, The Food Police Will Want Your Metadata

from the food-for-thought dept

As you may recall, late last year Australia put into effect a wonderfully ambitious data retention law that required ISPs in the country to do... well... something involving data retention. The problems began immediately, with ISPs unsure of exactly when they were supposed to start collecting all of this data, as the law allowed for some to petition to delay implementing the data collection, but the government hadn't bothered to get back to many of them. Never mind what would happen once this same inept government actually received the mountains of data it had requested.

But those concerns are all about the practical utility of such a law, not the larger concerns over whether this kind of data collection ought to be happening to begin with. To see an example of why a free people shouldn't allow the government to crack open this door, however, one needs only look again at the law in Australia. What was supposed to be collection chiefly to combat major criminal actions is now a collection that even the food police are trying to get in on. And, yes, I really do mean the food police.

If you are in the business of selling lamb chops, make sure you are weighing them properly: the National Measurement Institute wants warrantless access to Australians’ metadata to help them hunt down supermarkets skimping on portions. The NMI is one of 61 agencies that has applied to the attorney general, George Brandis, to be classed as a “criminal law-enforcement agency” in order to gain warrantless access to telecommunications data.

As part of the government’s assurances that there would be sufficient privacy safeguards, it reduced the number of agencies that could access the data. But agencies could reapply, with the permission of the attorney general, if they were involved in enforcing “serious contraventions” of criminal laws.
Now, this is still in the application phase, so the NMI, a government group tasked with investigating retailers to make sure they're packaging their goods properly, doesn't yet have access to Australian's metadata, but its petition did have to be approved by the attorney general as being relevant to even get that far. This is what happens when you crack open the door: the bulk of government will try to force its way in. Keep in mind that the efficacy of bulk collection practices for combating even terrorism and serious criminal actions is debatable, but now we're dealing with the food and retail packaging police wanting in on the action? This really should tell you everything you need to know.
Greens senator Scott Ludlam said: “The only saving grace the government was able to claim when they passed it was that they were narrowing the range of agencies that could access the data. On the face of it that was true, and obviously that’s just been blown to pieces.”
Just because slippery slope arguments are almost always lame, that doesn't mean they don't occasionally apply. It seems on bulk surveillance, they certainly do.

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Posted on Techdirt - 22 January 2016 @ 3:46pm

UK Police Deny Misspelling Led To Investigation, Say It Was Other Schoolwork Instead

from the still-a-problem dept

We had just relayed a story via the BBC about an elementary school kid in the UK earning a visit to his home from the authorities after writing in an English assignment that he lived in a "terrorist house", when he reportedly was trying to say he lived in a "terraced house." The crux of this story was that the UK's Anti-Terrorism law, which requires that school teachers act as surveillance agents for the state in an attempt to weed out future-radicalized will-be-terrorists is a policy built for unintended chaos, given that teachers are neither trained nor properly equipped to fulfill this role. The resulting visit to the boy's home by the authorities from a misspelled word was billed as an example of this overreach by government.

But, as some in the comments pointed out, Lancashire police have pushed back on the BBC's story, saying that it wasn't the misspelled words that triggered the visit and ultimately resulted in the authorities determining there was no need for an investigation, but was instead other schoolwork the boy had done that triggered the visit and ultimately resulted in the authorities determining there was no need for an investigation.

In a statement, police and the county council said it was "untrue to suggest that this situation was brought about by a simple spelling mistake. The school and the police have acted responsibly and proportionately in looking into a number of potential concerns using a low-key, local approach," it said. "No concerns were identified and no further action was required by any agency."
For some reason, there are those that think this vindicates both law enforcement and the UK's law because police say the spelling error had nothing to do with any of this. I can't quite figure out the logic of those people, because this is still a story about a teacher using schoolwork to identify a Muslim boy possibly being dangerous that triggered a visit to the boy's home from the authorities. While the BBC has pulled its original post as a result of the pushback, the fundamentals of the story haven't really changed at all. We still have a scared child and an annoyed family stemming from law enforcement action built on the back of a teacher picking through the child's schoolwork. That isn't a sustainable model for combating terrorism, but it is a sustainable model for alienating an entire subsection of a nation's population.
Miqdaad Versi, assistant secretary-general of the Muslim Council of Britain, the UK's largest umbrella group for Islamic associations, said he was aware of dozens of cases similar to that of the schoolboy.

"There are huge concerns that individuals going about their daily life are being seen through the lens of security and are being seen as potential terrorists rather than students," he said. "This is a natural consequence of the extension of the 'Prevent Duty' to schools."
Regardless of the police pushback, which was extremely light on details, that hasn't changed.

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Posted on Techdirt - 22 January 2016 @ 1:40pm

The Academy Bullied CNN Into Including Trademark Icon For 'Oscars' On Its Crawl For Some Reason

from the and-the-award-for-dumbest-fight-goes-to... dept

Usually when we talk about the Oscars behaving badly about intellectual property, it has to do with either its combat against film piracy or its rather stunning tradition of facilitating it. What's clear in most of those stories, though, is that when the Motion Picture Academy decides to sink its collective teeth into something, it is bulldog-ish in its unwillingness to let it go. It seems that this is the case on matters of trademark, as well. Unimaginably petty trademark matters.

As CNN was covering a boycott by some actors of the Oscars ceremony, it appears someone in PR for the Academy had pestered CNN to the point that the news channel, contrary to how just about everyone else does it, agreed to include a trademark registration symbol when discussing the Oscars on its crawl. To get an idea of how jarring doing this is to the viewer, see the following screen-cap.


Now, is this the hugest deal of anything ever? Obviously not, but that's what makes this so annoying: why does the Academy care if CNN's crawl about the Oscars has a trademark registration mark? Television and print news organizations all over the place omit it all the time, because including it both serves no purpose and annoys basically everyone. Why is this the hill on which the Academy chose to fight?

While the name “Oscars” is certainly a registered trademark of the Academy of Motion Picture Arts and Sciences (so CNN is correct on that count), most style manuals, including the AP Stylebook, forgo the use of it or the non-registered trademark symbol (™).

Not only does the use of it clutter up pages and graphics, but back in the old days when news was literally distributed via wires, such symbols couldn’t be transmitted.
It's only useful quality is as an insight into the minds of employees at an organization that has gone IP-crazy. Because they must be the only ones that actually care about this. Still, it's disappointing that CNN's apathy led to capitulation to the silliest of demands.

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Posted on Techdirt - 22 January 2016 @ 11:40am

Interactive Advertising Bureau Bars Adblock Plus From Conference, When It Should Be Listening To Them

from the lalala-we-can't-hear-you dept

Ad blocking and the software that powers it seems to be in the news lately, and for all the wrong reasons. Recently, several prominent sites have attacked ad blockers in several different ways, ranging from lawsuits on the extreme end down to simply withholding content. These attempts are all misguided in the same way, however, in that they attack the software that readers find useful rather than attacking the core problem that makes users turn to ad blockers in the first place: incredibly crappy and occasionally downright dangerous advertising inventory.

One would think that websites and online advertisers would have much to learn from the providers of ad blockers. It seems there is little appetite for education amongst them, however, as we've recently learned that the Interactive Advertising Bureau has flat out barred Adblock Plus from its annual conference.

According to a post on the Adblock Plus blog, the company had bought a ticket for the IAB conference, which takes place in Palm Desert, California at the end of January. The ticket was not cheap: they start at about £1,750 for members, scaling up to £2,600 for non-members. Then, last week, Adblock Plus received an e-mail from the IAB stating: "We are returning your registration fee and cancelling your registration for the IAB Annual Leadership Meeting." That was the entire content of the communication; according to Adblock Plus, there was no reason given for the cancellation.

Adblock Plus employee Mark Addison e-mailed the IAB and asked if "there must be some confusion" as he hadn't asked for a cancellation or refund. All he got was another inscrutable email from the IAB, confirming that his ticket had indeed been cancelled, but offering up no reason for the cancellation.
The reason for the summary refusal to allow Adblock Plus into the conference isn't difficult to surmise, of course. Online advertisers must certainly cast an unfriendly eye towards ad blockers, seeing them as the enemy. And, in online advertising's current iteration, they are. But, as we've stated before, that's because online advertising first made itself an enemy of the public by being annoying, useless, and even a vector for malware. Refusing to let Adblock Plus into the conference equates to online advertisers sticking their fingers in their ears, refusing to listen to what should be a very important voice in the industry.

Adding to how silly this is is the fact that ad blocking is regularly discussed at the conference.
The IAB has previously acknowledged that adblocking is a huge problem for the industry, and the topic of adblocking was discussed at length at last year's annual conference. If a solution is to be found, it will almost certainly require a dialogue between the advertisers and the advertising blockers.
Imagine if, instead of turning a deaf ear towards ad blockers, the IAB instead encouraged a dialogue to find out how to make their advertising more desirable to those using the software. Adblock Plus must have a ton of data that's useful to advertisers, but they won't get it by keeping their little club exclusive.

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