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About Dark HelmetTechdirt Insider

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

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

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Posted on Techdirt - 26 June 2017 @ 6:26pm

NJ Mayor Can't Stop Streisanding Himself After Being On The Receiving End Of The Crying Jordan Meme

from the i-see-what-he-memes dept

Of all the wonderful gifts the internet has bestowed upon humanity, there is perhaps none more precious to me than the now famous Crying Jordan meme. After Michael Jordan's tearful Hall of Fame induction speech, an image of him in tears took on the secondary purpose of being photoshopped onto anyone the internet wanted to portray as being sad or upset about pretty much anything. The creativity of some of the memes is nearly unmatched, leading to it becoming so popular that then President Obama brought it up when giving Jordan the Presidential Medal of Freedom. In other words, as far as internet memes go, the crying Jordan meme is nearly as prolific and celebrated as the basketball career of Jordan itself.

Which is why it's somewhat odd that the loser of a local township committee election went completely bonkers when he himself got "crying Jordan'd."

Cinnaminson (N.J.) mayor Anthony Minniti lost his bid for re-election to the township committee Tuesday when a retired police sergeant defeated him in the Republican primary. When a Facebook user Crying Jordan’d Minniti’s campaign flyer and posted the image to the Cinnaminson Friends & Neighbors page, well, the mayor got real mad:

“Obviously, I’m disgusted by this post, but sadly not surprised,” Minniti said about what he described as the “inflammatory, outrageous rhetoric” of the Facebook page. “It was only a matter of time before someone took this moblike behavior too far, and this is definitely too far,” he said. “Hate has no place in Cinnaminson, and this needs to be treated with the seriousness it warrants.”

In other communications, Minniti has suggested not just that the meme is an output of some demonic hate-engine, but that it's racist. Why? Because the Jordan meme is barely known in common circles and its true purpose is to put white people in "blackface." Yeah, seriously.

Portraying any white person in blackface is racist and unacceptable. There’s no question about that,” he said. “If this was such a well-known meme and this is something everybody knows about, why did the Facebook administrator pull it down? It was flagged as racist by others. It was taken down because it was racist, or deemed racist by the administrator.

We'll do the easy part of this first: the crying Jordan meme is most certainly not racist. Jordan himself has noticed the meme and has reportedly received it with somewhere between a shrug and mild annoyance. Also, I'm fairly certain our first ever black President would not toss around jokes about a racist meme while celebrating an African American award recipient. In addition to all of that: shut up, it's not racist. It's just not.

But it's worth noting that this is a story about a person who lost a mayoral election at the primary stage in a small town in New Jersey. I'm not certain how many people would be aware of the story at all, nor would they have seen the following meme in question, had Minniti not chosen to throw his shit fit about it all. But I'm fairly certain that answer could be stated as "less", with so much media coverage over Minniti Streisanding this into the mainstream.

Anger about being the subject of a meme that then makes that meme go viral is not anger well spent.

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Posted on Techdirt - 26 June 2017 @ 9:36am

Wisconsin Speech Bill Tries To Keep Universities Neutral On Public Policy Debates, Which Is Batshit Crazypants

from the that's-not-how-free-speech-works dept

As you are likely already aware, there is something of a debate about debates that occur on college campuses these days. Amidst a climate of ultra-polarized politics, there have been several high profile incidents on college campuses involving a revolt by student bodies -- and, allegedly, outside troublemakers -- over specific speakers invited onto campus and topics opened for debate. In reaction to these revolts that generally end with colleges uninviting speakers, some states have decided to try to legislate against this sort of thing in the name of free speech. It's one of those unhappy circumstances in which everyone on every side appears to be wrong. Student revolts and petitions to uninvite speakers are themselves a form of speech and worthy of protection, even if that sort of thing is antithetical to the university experience and ultimately works counter to the aims of the students doing the revolting. Meanwhile, the uninvited and their supporters are shouting about censorship in a way that suggests their views must be tolerated without reaction, which is a complete misunderstanding of how free speech works. As for the politicians, the haphazard decision to legislate on matters of speech in this matter betrays a lack of understanding of how sacred our free expression laws are in America and the care with which any lawmakers ought to take on the topic.

For an example of that, we need only look to Wisconsin, where a bill is being considered in reaction to all of this that would essentially force universities to take no position on any current topic that can be seen as controversial. School administrators are rightly concerned about the laughably vague language in the bill.

The trouble comes from this section of the bill: “That each institution shall strive to remain neutral, as an institution, on the public policy controversies of the day, and may not take action, as an institution, on the public policy controversies of the day in such a way as to require students or faculty to publicly express a given view of social policy.”

While the bills’ scope is focused on public events involving invited speakers, there are a couple key questions here. University officials want to know how far this requirement “to remain neutral” extends. For example, the University of Wisconsin-Madison has spoken out against proposed bans on stem cell research on campus. Would the university run afoul of this law if it did so again?

It's a good and fair question, because once this legislative ball gets rolling, gravity is likely to tug it further down the path than supporters of the bill had originally intended. And it's worth reminding everyone considering supporting this bill that its words can cut both ways. Just because today we're talking about a topic a person on one end of the political spectrum cares about doesn't mean the other end can't use this law to force their views on campus in the same way. Whatever your political leanings, it's worth being concerned when government attempts to stifle the viewpoint of a school and its students.

And, of course, nobody is clear that this is limited even to speakers and public positions on campus, thanks to the overly broad language in the bill. When questioned, Jesse Kremer, who sponsored the bill, suggested that the legislation could also reach its spindly fingers into the classroom...

And although the bill is not focused on classrooms, Kremer suggested that such a student could potentially bring a complaint to a “Council on Free Expression” the bill would create—a body composed of leaders from each state school and two politicians.

...before going completely off the rails.

When one Democrat at a hearing asked Republican Representative and bill sponsor Jesse Kremer whether a geology professor would be allowed to tell a student who believed the Earth to be 6,000 years old that they are wrong, Kremer bristled. “The Earth is 6,000 years old. That’s a fact,” he said.

And here you see the problem. What one person claims to be fact is, in fact, plainly absurd. And a law that protects students or invited speakers from being told that it's absurd, either by the student body or the university, is a laughable law fit for the waste bin. If students and speakers are such innocent snowflakes that they cannot handle having their views ridiculed, then the university is no place for them. This too should cut both ways, of course, except that the students shouting down controversial speakers is itself a form of speech, whereas legislation neutering that same speech is censorious in the worst way.

Do students need to be more open minded on campuses today? Sure, I think that's fair. Should lawmakers with the barest grip on their own reality be legislatively forcing speakers onto campus as a consequence? Obviously not.

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Posted on Techdirt - 23 June 2017 @ 7:39pm

NBA Rookie Is Just So Happy To Play For 'Team Name' In The City Of 'City'

from the put-dept.-subtitle-here dept

It ain't easy being a high-profile celebrity these days. A job that once mostly involved ducking cameras and putting out the occasional press release has evolved into one where multiple social media platforms must be updated so that fans feel that real connection that can only come with a carefully managed social media message. The brand is the ultimate product rather than any athletic or artistic output. To that end, even these social media messages come with sponsorships, carefully cultivated relationships with large companies itching to attach their names to well-followed celebrities and their social media accounts.

Speaking of athletes, the NBA draft just happened. Many young men realized their dream to play in the NBA after years of hard work. Because they are young, many of those athletes have social media accounts with the expected platforms. And many of them posted messages about how happy they were with the draft day results. Like Markelle Fultz, for instance, who was drafted number one overall by the Philadelphia Seventy-Sixers and immediately took to Instagram to let his fans know completely, organically and authentically how pleased he was.


Oops. In case you can't read the embedded tweet, Fultz said that he was "Excited to head to (City) and join the (team name)", all while happily pointing out that the message was sponsored by watchmaker Tissot. Clearly this was a pre-written template to send out on Instagram once it had been filled in, except Fultz never filled it in. While he deleted the message shortly after, it's unclear just how (insert emotion) Tissot was with the message.

More importantly, the curtain gets pulled back on Fultz's engagement with his followers. Certainly it's not the biggest deal in the world and most people are having a little light-hearted fun with Fultz's faux pas, but it does strike me that anyone that saw his Instagram account as a way to honestly engage with him likely knows better now.

Fultz, meanwhile, can likely console himself with whatever insane amount of money a number one overall pick gets these days. Here's hoping the Sixers don't forget to fill in the direct deposit template.

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Posted on Techdirt - 23 June 2017 @ 3:47pm

King Has 'Crush' Trademark Opposed By Dr. Pepper

from the by-their-own-petard dept

App-maker King, of Candy Crush fame, has built up a reputation for itself as a trademark bully. The company has previously attempted to threaten pretty much any game or mobile app that utilizes the words "candy" or "saga." And if that sounds insane to you, you're not alone, as there have been several instances of severe backlash against how King goes about "protecting" its trademarks.

As this site's version of the saying goes: live by the intellectual property, die by the intellectual property. Well, not die, perhaps, but it's slightly amusing to watch King have its "Crush" trademark opposed by Dr. Pepper.

In a bid to create a further layer of protection for their games, King.com have filed an application to protect ‘Crush’ as a trade mark in the US for confectionery. Unhappy about this application, Dr Pepper have filed an opposition claiming the ‘Crush’ trade mark will damage the goodwill of their own ‘Crush’ marks.

Dr Pepper owns several trade marks for the word for a number of items including certain confectionary items and cosmetics. Dr Pepper has based their claims on the fact they believe by allowing the application by King.com, it will cause dilution of the distinctive quality of Dr Peppers marks.

Ok, let's get the obvious out of the way: this is a fairly silly opposition if its basis is to do with customer confusion. Frankly, I can't imagine how many people are even aware that the Crush mark is being used in the confections space by Dr. Pepper. I certainly can't think of a single Crush-branded candy. My quick google search didn't turn up much either. Crush is known for its soft drinks. Meanwhile, King is known for its apps, and even if it makes the move into retail in the way that Angry Birds has, and that retail business includes candies, who is going to confuse any of that with Dr. Pepper's Crush brand?

That being said, this opposition is certainly more valid than King's bullying of the makers of The Banner Saga over that last word. I won't say this has reached the level of schadenfreude for me, but it is somewhat hard to get any tears to build up over King having to endure a silly opposition to its trademark.

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Posted on Techdirt - 23 June 2017 @ 3:10am

Wikileaks Attempts To Bully Wikileaks Documentary With C&D Notices

from the about-face dept

The history of Wikileaks and its founder Julian Assange is a tortured one, to be sure. Once the darling of the left for exposing important misdeeds by the American government, the site then became a tool for the right in the last Presidential election with the publishing of emails stolen in a hack of the DNC. From there, some have accused Wikileaks of being an arm of Moscow's intelligence efforts, while the America government has made noise about prosecuting the site and Assange under the Espionage Act. Still others support the site for its efforts in exposing the secrets governments wish to keep hidden from the citizens to whom they are beholden.

Through it all, Assange and Wikileaks have remained firm in their mission to expose information and secrets that were previously kept from the public. Except, it seems, when that information has to do with Wikileaks itself. According to the makers of a documentary about Wikileaks entitled Risk, on the topic of Wikileaks, Wikileaks is chiefly interested not in open journalism and unvarnished truth, but rather on its own image. And apparently the site is willing to wield legal threats and lawyers in a way that is almost absurdly hypocritical.

We are the producers of Risk , a documentary film about Julian Assange and WikiLeaks. We unequivocally defend WikiLeaks’ journalistic right to publish true and newsworthy information...We were disturbed, however, to learn that Julian Assange and WikiLeaks sent cease and desist letters to our distributors demanding they stop the release of Risk: “We therefore demand that you immediately cease the use and distribution of all images of the Named Participants and that you desist from this or any other infringement of the rights of the Named Participants in the future.”

From there, the filmmakers go into what lengths they went to work directly with Wikileaks and Assange on the film starting back in 2011. Assange himself provided content to be used in the film and even signed a licensing agreement to use Wikileaks footage for it. Some people involved with Wikileaks requested not to be in the film and the filmmakers complied. People from the site and their lawyers have been shown screenings of the film before every regional release, including as recently as April of this year. There is no claim made thus far that any of the content of the film is false.

So, what is the weighty harm over which Wikileaks is firing off C&Ds? Its image and the image of Assange.

Since 2016, Assange and his lawyers have repeatedly demanded that we remove scenes from the film in which Assange speaks about the two women who made sexual assault allegations against him in 2010 and Sweden’s investigation which has since been discontinued. WikiLeaks’ comments have consistently been about image management, including: demands to remove scenes from the film where Assange discusses sexual assault allegations against him; requests to remove images of alcohol bottles in the embassy because Ecuador is a Catholic country and it looks bad; requests to include mentions of WikiLeaks in the 2016 U.S. presidential debates; and, requests to add more scenes with attorney Amal Clooney because she makes WikiLeaks look good.

The opinion that Assange is an egomaniac has been floating around for some time. With actions like these, there seems to be some evidence of that. But that charge aside, what should be abundantly clear is that the ideals of the site appear to have fallen by the wayside when it comes to a simple documentary that has refused to cinematically stroke Wikileaks to the degree it wishes. That's not a good look for a site that survives on people's belief that it is committed to open and honest information.

In fact, this looks to be the sort of thing that the Wikileaks from years gone by would have dug into and exposed.

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Posted on Techdirt - 22 June 2017 @ 1:31pm

Pakistan Sentences First Person To Death Over Social Media Posts

from the dislike dept

With the ubiquity of social media presence in people's daily lives, the past few years has seen the rise of concern over people's privacy of their social media accounts, as well as concern over how content shared on those accounts could be used against the account holder. In America, this commonly breaks mostly into concerns about prospective employers reviewing social media accounts during the hiring process and how government reviews social media accounts for law enforcement purposes. While there are real concerns to be had in both cases, however, it's useful to be reminded that there are places where it is so much worse. Useful in that it's good to be reminded what privacy advocates are fighting to keep us from. Such as death.

In Pakistan, the government there has reached the unfortunate milestone of sentencing its first ever person to death over content he put on Facebook.

On Saturday, 30-year-old Taimoor Raza became the first person to receive a death sentence in a Pakistan anti-terrorism court for "using derogatory remarks ... in respect of the Holy Prophet" on social media.

Amnesty International's Pakistan campaigner, Nadia Rahman, said in a statement the conviction set a "dangerous precedent."

"No one one should be hauled before an anti-terrorism court or any other court solely for peacefully exercising their rights to freedom of expression and freedom of thought, conscience, religion or belief online," she said.

While the rules and laws of countries vary greatly, it should be an uncontroversial stance to state that no person should be sentenced to death over what amounts to speech and thought. Even those confused into thinking that supporting multiculturalism requires the absence of a moral stance on whether criticism of any particular faith ought to come with any punishment whatsoever must be capable of acknowledging that death sentences ought not be on the table for consideration. But, should someone want to argue that point, it should at least be understood that these kinds of laws pretty much have abuse of the law baked into them.

A 2016 report by Amnesty International found the laws are "open to abuse" and anyone who is accused is usually presumed to be guilty, leaving them open to mob retribution. There were 91 blasphemy cases concerning the Prophet or his companions registered between 2011 and 2015, the report said.

Specific blasphemy laws which punished perceived insults to Islam were introduced between 1980 and 1986, during a period of martial law under the military government of General Zia-ul-Haq. They were never removed once martial law ended.

The genesis of these laws should tell you all you need to know about their virtue, which is to say they have none. It also demonstrates the fear that regimes of this kind have in regards to the sort of wide-ranging communications tool that Facebook represents. This all comes down to controlling thought within the citizenry out of fear of a change in social opinion, which would deprive that regime of the power it wields so perniciously. With that in mind, actions taken by governments of this kind deserve the broadest and harshest condemnation, and damn well ought to weigh on foreign policy as well.

Put more simply, if governments, including America's, can't take a stand against death sentences over Facebook posts, it cedes the moral high ground to an astounding degree.

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Posted on Techdirt - 22 June 2017 @ 10:42am

The Salt Lake City Comic Con Trademark Dispute Is Still Going And Just Went To Deposition

from the comic-can't,-amirite? dept

Editor's Note from Mike Masnick: Tim alerted me that he was writing on this subject, based on the article he found in the Deseret News, and I realized that we separately needed to reveal some stuff that happened earlier this year in relation to Tim's earlier reporting on this story. As Tim mentions in the story below, he first wrote about this case in 2014 (again, based on an article he found in the Deseret News) and then mentioned it obliquely in 2015 when discussing another lawsuit, and until now, had not written about it again. Back in February, one evening, I received a knock on my front door at home, with a process server handing me a subpoena. I was... confused. The subpoena was from a lawyer, Michelle Herrera, of the very large law firm Pillsbury Winthrop Shaw Pittman, on behalf of San Diego Comic Con. I was still confused. The subpoena demanded all sorts of information from us, including any "business relationship" we might have with the people who ran the Salt Lake City Comic Con (including whether or not they held any ownership stake in our company), any communications we had ever had with the organizers of Salt Lake City Comic Con and... incredibly... "all documents concerning SDCC or any SDCC Convention."

Yes, because three years ago we had written a story -- clearly based on coverage in the Deseret News -- San Diego Comic Con was demanding that we cough up every document we have that even mentions San Diego Comic Con, while similarly implying that merely having written about a legal dispute (something we do all the damn time), it meant that we were somehow in cahoots with the folks who run Salt Lake City Comic Con -- people neither Tim nor I (nor anyone else working here) have ever spoken to in any context for any reason. Such a request, beyond being overbroad and completely misguided, is also a nuisance and a burden. At best, it appeared to be a wild and unnecessary fishing expedition. At worst, it could certainly be seen as an attempt to stifle reporting that was critical of San Diego Comic Con's litigation strategy.

It also wasted our time and resources, while at least creating something of a chilling effect in making us think twice about whether it was even worth it to publish the article below, because who knows if it will lead to another knock on my door, and more time having to talk with lawyers and whatnot.

Either way, soon after receiving the subpoena, lawyer Ken "Popehat" White, filed our response, noting that we had no responsive documents for most of it, but also objecting to the overly broad nature of the request. The key part:

With respect to request 7, seeking “All documents concerning SDCC or any SDCC convention,” Witness responds that the request is overbroad, burdensome, harassing, not reasonably calculated to lead to production of admissible evidence, and seeks documents equally available to Plaintiff. Witness operates a popular blog, Techdirt.com, that has covered legal issues surrounding technology and internet culture since 1997. Plaintiff has served this subpoena because Witness has published two posts critical of Plaintiff’s case. The public posts Witness has published about SDCC or mentioning SDCC are equally available to Plaintiff at https://www.techdirt.com/blog/?tag=comic+con or https://www.techdirt.com/search-g.php?q=comicon. It would be extremely burdensome and expensive for Witness to review 20 years of records of reporting to determine if it has any document mentioning SDCC or any SDCC convention, whether or not those documents have any relationship to this case. Moreover, Plaintiff’s motive to seek such a wide range of documents unrelated to this case is clearly to harass and retaliate against Witness for critical coverage of Plaintiff’s case. Moreover, Witness objects pursuant to California Evidence Code § 1070 that the subpoena seeks unpublished information from a publisher. O'Grady v. Superior Court, 139 Cal. App.4th 1423 (Cal. Ct. App. 2006) [Section 1070 protects online news magazine]. Witness stands on its objections and will not produce documents in response to this request.

We filed that in response and never heard another peep from San Diego Comic Con. But, Tim found this latest bit of news and wished to report on it, and we felt it necessary to waste even more time putting together this bit of disclosure about SDCC's subpoena to us. No wonder the damn case is still going. Anyway... on to Tim's post:

Nearly three years ago, we wrote about a rather silly trademark dispute between the folks that run the San Diego Comic-Con and Don Farr Productions, organizers of the Salt Lake City Comic Con. The SDCC has a registered trademark for "comic-con" and suggested that iterations such as "comic con" infringed on that trademark. We pointed out at the time that there are all kinds of comic conventions using similar or identical terms, and many had done so for many years, resulting in the term "comic con" being rendered generic. Add to that the low likelihood that anyone would actually be confused into thinking these other conventions were the product of the SDCC and this whole episode seemed head-scratchingly silly.

Except it isn't silly for those targeted by these kinds of bullying trademark lawsuits. Despite the SDCC filing its suit in the summer of 2014, I want to take a moment to point out that this legal dispute is still going on and has finally reached the deposition phase.

Co-founders Dan Farr and Bryan Brandenburg will each face a full day of deposition Tuesday and Wednesday, leading up to a final settlement conference before a federal judge in San Diego on Thursday. Following that conference, the judge will decide whether the case will continue to advance toward a trial scheduled in October. While the organizers staunchly maintain they are in the right, Brandenburg says that after investing approximately $1 million in their defense, they are ready to focus exclusively on their event.

"I would just as soon use those creative juices to really level up (the event)," Brandenburg said. "I think we've done a great job putting on great events over the past two years in spite of this thing going on, but you know, just imagine what we could do if it wasn't."

This is the largely unheralded toll that is paid when these kinds of trademark disputes arise. Sure, there is the cost of legal fees to consider, and the annoyance of having to defend themselves in court as well. But there is a cost to the public as well, paid in terms of a lack of production that would otherwise exist by the accused. When individuals or companies that are not truly infringing upon a trademark get caught up in this sort of legal web, their customers suffer along with them.

What's truly irritating about all of this is how the SDCC appears to have decided to enforce this trademark at the flip of a switch, having spent years failing to do so. The Salt Lake City folks, meanwhile, remain rather sweet in their disposition by comparison.

Brandenburg emphasized that despite the prolonged litigation, he and Farr hold no ill will toward San Diego Comic-Con but continue to admire the iconic event. He speculated that the lawsuit represents a kind of "Custer's last stand" for San Diego Comic-Con, which has dabbled for years in taking action about other events using the name "comic con," ultimately latching onto the Salt Lake event after Brandenburg and Farr drove their branded Audi to the competing event in July 2014.

In the lawsuit, the San Diego convention claims legal ownership over the term "comic con" in its various forms, though similar events around the country — including the recently renamed "Stan Lee's Los Angeles Comic Con" — have used the name for years.

The San Diego Comic-Con remains a wildly successful event. By all accounts, it is one hell of a show, one that I personally have wanted to visit for some time. It reached that level of success despite years of other conventions using some form of the "comic con" term. What harm it may have suffered that would warrant three years worth of litigation, and all of the legal costs associated with that litigation, is absolutely beyond me.

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Posted on Techdirt - 20 June 2017 @ 6:28pm

Small Irish Craft Beer Joint Has Actually Original Trademark Opposed By Holder Of A Purely Geographic Mark

from the mark-it-place dept

It seems like not a week can go by without some silly trademark dispute in the alcohol industries. This latest example comes to us from Ireland and provides a vivid demonstration for why trademarks ought to only be granted on unique and original names and not, say, on a mark based on common geography.

Leo Mansfield of the Connemara region of Ireland opened a storefront business and called it "Conn O'Mara" after the titular fictional character he created as something of a mascot for the store. He registered the name "Conn O'Mara" as a trademark in 2009, as well as the logo for the Conn O'Mara character he created. All of this is perfectly original stuff, a fun and fictionalized nod to the Irish region where the storefront is located. In 2015, however, Mansfield decided to release a line of craft beer through the store as well and filed for a trademark on the name and logo to be used on his brews. Beam Suntory, headquartered in Chicago with two distilleries in Ireland, filed a notice of opposition to Mansfield's trademark, claiming that it has a registered mark for "Connemara" for the liquor marketplace.

Cooley Distillery claimed that products under the ‘Conn O’Mara’ mark could be confused with its own Connemara Irish whiskey products.

“I am appalled by the idea that Cooley Distillery would attempt to trademark ‘Connemara’,” Mansfield said in his counter statement seen by The Spirits Business. “Connemara is the world renowned geographical area of outstanding natural beauty in which I live and do business. If Cooley Distillery’s intent is to stifle local commercial activity and deny the use of the geographical name of the area to goods and services from the area, then I am outraged.”

And with good reason. Mansfield's trademark is original, a fictional character and name that playfully serves as an homage to the region. Beam Suntory's mark, however, is the name of the region. Even putting aside my personal crusade to get the trademark offices of the world to recognize that the beer, wine, and liquor marketplaces are distinct enough to deserve their own trademarks, allowing a major industry to lock up a trademark for a name that is a geographic area is just plain silly. It's not original, it's not distinctive, and it treads on all of the other existing and potential businesses within that geographic area.

It seems some of the locals in Connemara are on Mansfield's side.

Mansfield told The Spirits Business he decided to “go public” with his point of view now because he was “fed up” with the lengthy process. He added that local bars have decided to get behind him “and will be contacting the reps”.

Now, Beam Suntory is a huge company, but it still can't be worth the PR hit and the local patronage of these Connemara businesses to fight a storefront shop with a unique name and fictional character.

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Posted on Techdirt - 16 June 2017 @ 3:37pm

Cable Industry Lobbyist Proclaims Cable TV Industry 'Failing' While Advocating Against Broadband Consumer Rights

from the sigh dept

I'll forgive our dear readers if they don't have the name Matthew Polka floating in their memories right at this moment. As a refresher, he's the CEO of American Cable Association, the lobbying group that represents smaller cable and broadband providers. One would think that a group like this would be very interested in breaking up the near-monopolies held by the larger players in this industry and fostering more competition within the marketplace, except that Polka has literally said the opposite. The ACA has also been involved in battles against any sort of regulation in the broadband industry, against privacy rules with any real teeth, and against the plan to require cable companies to open service to third-party cable boxes.

And in some respects on those last points, I get it. Hey, the ACA is lobbying for its member clients, not for the American people. Even as Polka has made noise about how great non-competition would be for America, everyone knew that was silly. What he says is clearly crafted to make his cable company clients as happy as possible, obviously.

The cable TV business is in trouble—in fact, it is "failing" as a business due to rising programming costs and consumers switching from traditional TV subscriptions to online video streaming, according to a cable lobbyist group.

"As a business, it is failing," said Matthew Polka, CEO of the American Cable Association (ACA). "It is very, very difficult for a cable operator in many cases to even break even on the cable side of the business, which is why broadband is so important, giving consumers more of a choice that we can't give them on cable [TV]."

Well, that's certainly different. These comments by Polka about how the cable television industry is failing differ from the doom-and-gloom sideshow too often pitched as a reason for cable companies to not do all sorts of things that would benefit customers. Instead, Polka's tone appears to be sincere on this point: the cable television industry, as we have come to know it, is in its death throes. Given cord-cutting and a new customer adoption rate that has been falling in the younger generations, it's refreshing to hear a cable lobbyist come out and admit all of this.

The problem is that when you square this with the other point he made -- the importance of broadband -- a shiver bolts down the spine.

That's one reason cable companies in the ACA see broadband as "their future," Polka said. A cable company executive who appeared alongside Polka on the C-SPAN show echoed those comments.

Video is "certainly our worst product," said Tom Larsen, senior VP of government and public relations for cable company Mediacom. "It makes the least amount of money."

Larsen and Polka both praised the FCC's new Republican leadership for taking a deregulatory approach to broadband.

This, of course, refers in part to the gutting of net neutrality, the death of which is being to served to the American public by the same new leadership Polka is so happy to praise. It should be immediately clear what the ACA is hoping for when you take into account the sum of its previous stances, nearly all of which have been de facto anti-competition, as well as this newfound full focus on the broadband portion of its members' services. It expects to be able to strangle the ISP industry in the same way its anti-competitive practices helped pave the way for cable providers being unable to respond to customer demands.

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Posted on Techdirt - 16 June 2017 @ 12:07pm

Comicmix Wins Against Dr. Seuss Estate On Trademark Infringement Claim, Copyright Claim In Serious Jeopardy

from the beam-me-mashup dept

Last year, Mike wrote about an interesting case between a small group of enterprising comic artists and Dr. Seuss Enterprises. Comicmix artists had created a parody mashup of Dr. Suess' Oh The Places You'll Go and the Star Trek universe to create Oh The Places You'll Boldly Go, a rather sweet take on both franchises. The creators of this new work setup a crowdfunding campaign, which the Dr. Seuss estate halted with takedown notices. The case ended up in court, with the Seuss estate claiming that the new work infringed both its copyright and trademark rights. The creators, along with Ken "Popehat" White, claimed all of this was well within the boundaries of Fair Use.

Well, the judge for the case has now ruled on the trademark matter, and it's a big win for Comicmix. Additionally, while the copyright claim survives for now, the judge makes it clear that things aren't looking great for that claim either.

Now, the United States District Court for the Southern District of California court has ruled on the trademark question and found that there is no valid trademark claim thanks to "nominative fair use," and also indicated that it would be favorably disposed to fair use defenses on the copyright question.

The estate has two weeks to prove copyright damages and to amend its trademark claims.

It's difficult to see how the Seuss Estate is possibly going to go about demonstrating copyright damages. Given the judge's review of the material and her analysis thus far on the copyright question, the copyright claim has a hell of a hill to climb. The Seuss estate argued that adjudicating the matter of Fair Use on the copyright claim at the motion to dismiss stage was inappropriate because of all the facts required to make that assessment. The judge didn't buy that, largely because the singular claim of harm made by the estate was the claim that it lost out on the opportunity to license the work at all.

As a threshold matter, Plaintiff argues that “while possible in rare instances to decide fair use at the pleading stage, it is inappropriate here, where significant material facts are necessary to make a determination of fair use.” (Opp’n 9.) However, the only genuine fact Plaintiff points to is that “the issue of whether the Defendants’ use . . . will appreciably harm the value of [Plaintiff’s] Works or . . . market simply cannot be made without discovery and further development of the record on this issue.” (Id. at 15–16.) And Defendants point out that Plaintiff’s sole allegation of market harm is that Defendants “usurped DSE’s licensing opportunities.” (Reply 4 (citing Compl. ¶ 32).) Thus, as long as the Court takes Plaintiff’s allegation of market harm as true, Defendants are otherwise correct that “[t]he complaint, and documents sufficiently referenced therein or otherwise subject to judicial notice, are sufficient to enable the Court to evaluate the issue of fair use.” (MTD 6.) In particular, the Complaint itself raises the issue of fair use, (Compl. ¶ 35), and the contents of the two primary books and other relevant works are before the Court and not in reasonable dispute, (RJN Exs. 5, 6).1 Accordingly, the Court concludes that fair use analysis is appropriate on this Motion to Dismiss and addresses each factor in turn.

As a bonus, the judge also acknowledges that mashup art is an emerging medium and states that bending to the claim by the Seuss estate would effectively kill off an entire form of art.

This case presents an important question regarding the emerging “mash-up” culture where artists combine two independent works in a new and unique way. See, e.g., Art Term, Postmodernism, Tate, http://www.tate.org.uk/art/art-terms/p/postmodernism (last visited Apr. 28, 2017) (“Often mixing different artistic and popular styles and media, postmodernist art can also consciously and self-consciously borrow from or ironically comment on a range of styles from the past.”). Applying the fair use factors in the manner Plaintiff outlines would almost always preclude a finding of fair use under these circumstances. However, if fair use was not viable in a case such as this, an entire body of highly creative work would be effectively foreclosed.

In other words, shuttering an entire art form is not the purpose of copyright law at all, hence this sort of Fair Use defense. It's as eloquent a nod to why creativity ought not be stifled in favor of protectionism as I've seen in a court document and should be required reading for any judge ruling on matters of Fair Use.

And so we wait for two weeks to see what, if any, documented claim of harm the Seuss Estate can work up for its copyright claim. I expect we will all be underwhelmed.

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Posted on Techdirt - 15 June 2017 @ 6:30pm

Decade-Old GTA4 Modding Tool Suddenly Taken Down After Take-Two Interactive's Threat

from the better-never-than-late dept

Video game makers and publishers have wildly different stances on modding communities, as is well known. Some embrace the communities and see them correctly as a free boon to the popularity of their games, while others would rather maintain strict control of the gaming experience by resorting to legal muscle with modders. But there is something strange in the Grand Theft Auto franchise, with Rockstar Games and Take-Two Interactive often taking confusing positions on what communities can do with their games. What would seem undeniable is that the modding community has extended the lifespan of finely-aged games, such as Grand Theft Auto IV, by giving gamers new ways to play them.

And, yet, Take-Two appears to have recently sent a threat letter to a wildly popular tool to mod GTA4, angering of a large swath of its own fans. OpenIV is the name of the tool and it had a wide array of uses, including making videos of gameplay from angles impossible in Rockstar's editor, to adding new vehicles to the game and delving into the game code to find secret areas. Some content created using the tool has even been featured on Rockstar's website, with the company going to lengths to praise the modding community's creations. Earlier this month, however, the creators of OpenIV got a cease and desist letter from Take-Two.

According to a post on the official OpenIV website, the alleged cease and desist came on June 5th 2017. The supposed problem, OpenIV’s creators say, is that the program allows “third parties to defeat security features of its software and modify that software in violation Take-Two’s rights.” After discussing their options, the team behind the tool says they decided it was not worth their time to fight back.

“Yes, we can go to court and yet again prove that modding is fair use and our actions are legal,” creator GooD-NTS wrote. “Yes, we could. But we decided not to. Going to court will take at least few months of our time and huge amount of efforts, and, at best, we’ll get absolutely nothing. Spending time just to restore status quo is really unproductive, and all the money in the world can’t compensate the loss of time. So, we decided to agree with their claims and we’re stopping distribution of OpenIV.”

The reaction from the gaming community was as swift as it was one-sided in its near universal condemnation of the takedown. Reactions ranged from confusion about why this action was taken after nearly ten years of OpenIV being in use and distribution to promises to never buy a Take-Two game again. Here is a sample of the reaction from Kotaku's post.


Now, we could have a perfectly reasonable discussion about why modding of this kind ought to be considered Fair Use. Or we could discuss how petulant legal threats of this kind are a detriment to creation and the operations of running a creative endeavor. That, after all, is something we know quite a bit about.

But my chief question is much more basic: How in the world did Take-Two think that this was a good business decision? Given the extreme backlash, whatever harm was caused to gamers themselves by the modding tool must be minimal at worst. Given how long Take-Two put up with this tool existing without threatening it for so long seems to indicate that any harm to the company was minimal at worst. Meanwhile, it's quite clear that this is a tool that fans of GTA4 very much want to be able to use and its use only happens if they have a copy of the game. It makes the game more useful and attractive, in other words, which means more sold copies. What in the world was the company trying to accomplish here, other than merely resorting to protectionism?

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Posted on Techdirt - 15 June 2017 @ 1:25pm

NCAA Forces UCF Football Player To Choose Between His Athletic Career And His YouTube Channel

from the bad-guys dept

While we've talked about the NCAA in the past, those conversations have mostly revolved around the NCAA's backwards thinking regarding the streaming of sporting events and issues about the likenesses of players appearing in video games. Unsaid from what I can tell, however, is the general opinion of this writer that the NCAA is an outdated institution designed to make gobs of money off of the labor of otherwise free citizens while curtailing their rights to make any income themselves. These attempts to make income by college athletes typically revolve around selling autographs, memorabillia, and game-worn clothing, but the NCAA is perfectly capable of taking its rules to ridiculous lengths.

Serving as an example of this is UCF kicker Donald De La Haye, who has been informed by the NCAA that he must either shutter his YouTube channel or his football career.

De La Haye’s channel has published 41 videos over the past year, piling up 54,000 subscribers and two million views in that time. His videos are nearly all related to his athletic career, though only a few directly address his status as UCF’s kicker; others are simply videos showing off his daily kicking regime and ability to boot a flatscreen TV from a ledge. As De La Haye stated in his latest video, entitled “Quit College Sports Or Quit YouTube,” because he was profiting from ads placed on his videos and channel homepage, the NCAA determined that he was profiting off his own likeness—the nerve!—and put its foot down.

As is the case with everything to do with the NCAA, this is about where this advertising money is going and not the actual conduct of De La Haye. The NCAA's stance is that it is perfectly fine for athletes to generate money based on their activities, it's just that the money generated must end up in the NCAA's coffers instead of in the bank accounts of the athletes that perform on the field of play. If that sounds like slavery to you, the NCAA would like to remind you that some of these athletes get college scholarships. But not all of them do, of course, and the value of those scholarships pales in comparison to the revenue generated by these athletes for the NCAA and its member institutions. It's a terrible deal for college athletes, all the more so when the NCAA is now in the habit of prohibiting speech in the form of these kinds of videos just because some advertising revenue is generated.

Revenue, by the way, that appears to be going to De La Haye's family instead of bling.

De La Haye intimated in his 10-minute video that he had been using some of the money made from his channel to help his family at home—he hails from Costa Rica—saying they have, “tons of bills piling up and there’s no way for me to help. I thought I found a way.”

The NCAA may have once served a purpose, but it needs to die a very quick death in the present. Any organization that wants to keep an enterprising college student athlete from making YouTube videos has demonstrated its need to be exited.

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Posted on Techdirt - 12 June 2017 @ 3:36pm

Judge Orders MCSK To Cease Collecting Royalties For Kenyan Musicians

from the contempt-of-everyone dept

The saga of the Music Copyright Society of Kenya (MCSK) over the past couple of years has certainly been interesting to watch. In the summer of 2015, the Kenyan government responded to some fairly damning reports about just how little money MCSK was paying artists as part of its copyright collection scheme with a tongue-lashing. It also demanded that MCSK open up detailed books on its business and itemize how much it was collecting, paying artists, and paying itself in administrative fees. When the group responded with reports that might as well have been written in crayon for all the professionalism they showed, the government elected to strip MCSK of its collection license as a Collective Management Organization (CMO), instead setting up new collection groups that it for some reason thought would be less corrupt. I'm sure the Kenyan government thought that would be the end of MCSK.

But nooooooope. Up until very recently, MCSK was advertising itself as the only CMO on the market, despite it not having a license to operate at all. It also was continuing to harass local businesses for royalties it was not authorized to collect. So, the court system in Kenya is now taking its turn at saying, "No, seriously, we're the government and you have to stop doing this."

The Music Copyright Society has been temporarily stopped from collecting royalties. The order was given by High Court judge Ruth Sitati. Her order arose out of a case filed following complaints from the business community that the MCSK was demanding royalties despite lacking a licence to operate as a Collective Management Organisation. Sitati also barred the MCSK or its agents from publishing information insinuating it is duly licensed as a CMO, pending hearing and determination of the case.

Why the court thinks MCSK will listen to it any more than the other branches of government remains unaddressed, but it likely has to do with the court having higher standing and respect than the government's Copyright Board. The court likewise has asked MCSK to open its books, though its refusal to do so earlier would indicate some sort of fear in doing this publicly. Seeing those books disclosed during the discovery process would provide some interesting details in just how money tends to flow through these collection societies.

What should be clear, regardless, is that these types of organizations don't care to operate in the open light. One wonders just how musicians can think their interests are being served by them at all at this point.

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Posted on Techdirt - 9 June 2017 @ 3:23pm

Trademark Bullying Works: Dawa Food Mart Agrees To Name Change After Trademark Suit From Wawa

from the why-they-do-it dept

You may recall that earlier this year, mid-sized convenience store company Wawa filed a trademark suit against the Dawa Food Mart, a single location food market in New Jersey. At the time, we pointed out several problems with the lawsuit, including the stature of the companies being vastly different, the offerings of the companies not being particularly identical, and the fact that it was clear that the Korean owner of Dawa was not attempting to trade on Wawa's name (Dawa means "welcome" in his language). What all of this amounted to was pretty clearly a low likelihood of any actual confusion in the marketplace, which was nearly admitted to when Wawa's reps excused the legal action away as obligated under trademark law, despite that not being actually true.

But, as we keep pointing out, trademark bullying like this works, and now Dawa Food Mart has agreed to change its name in exchange for Wawa not seeking damages against it.

The proposed order, which includes a permanent injunction barring the use of the Dawa name, has been submitted for the approval of U.S. District Judge Katherine Hayden in Newark. Dawa would have to change its name within 90 days of court approval. The store by that time also would have to use or destroy all materials with the Dawa name.

Under the proposed agreement, Wawa would drop demands that Dawa be required to pay compensatory damages, as well as Wawa’s legal expenses and attorneys’ fees. Dawa would be obligated to pay $12,000 to Wawa if it’s found to have violated the proposed agreement.

There's some irony here in the Korean owner being forced to cease using a word that means "welcome" for his business, all because a bigger corporate entity threatened him with compensatory damages. Irony aside, this is unfortunate, not the least because of the expense Dawa will take on in changing its name, signage, branding, etc., but also because of the time sink this surely was for him. Still, this kind of bullying works because the potential damages outweighed the already sunk costs for Dawa.

It's worth repeating the trademark law was designed to benefit the public. Given the lack of real confusion between the two businesses, I'm going to need some help seeing where the beneficiary of this trademark action is the public and not Wawa corporate interests.

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Posted on Techdirt - 9 June 2017 @ 1:33pm

New Cracking Group May Have Delivered Denuvo Its Death Blow

from the we-hardly-knew-ye dept

Our posts about Denuvo have come at so furious a pace as of late that it feels silly to do any sort of recap here at the start of this post. If you aren't up on the DRM's saga, go read through our reporting, because it's a fascinating study in both hubris and inevitability in the DRM space. Suffice it to say that Denuvo was once thought to be an unbeatable DRM, except that in the past few months the timeline for breaking through it and cracking the games it is supposed to protect has been whittled down to mere days.

Through it all, Denuvo has made noise about the benefit of keeping games protected even for those first few days when games initially are released. Thanks to a new player in the group battling against Denuvo, it seems that claim may come to a dramatic and violent end. This chiefly has to do with the way a group calling itself SteamPunks cracked the Denuvo-protected game Dishonored 2.

Rather than simply pre-crack (remove the protection) from Dishonored 2 and then deliver it to the public, the SteamPunks release appears to contain code which enables the user to generate Denuvo licenses on a machine-by-machine basis. If that hasn’t sunk in, the theory is that the ‘key generator’ might be able to do the same with all Denuvo-protected releases in future, blowing the system out of the water. While that enormous feat remains to be seen, there is an unusual amount of excitement surrounding this release and the emergence of the previously unknown SteamPunks. In the words of one Reddit user, the group has delivered the cracking equivalent of The Holy Hand Grenade of Antioch, yet no one appears to have had any knowledge of them before yesterday.

Only adding to the mystery is the lack of knowledge relating to how their tool works. Perhaps ironically, perhaps importantly, SteamPunks have chosen to protect their code with VMProtect, the software system that Denuvo itself previously deployed to stop people reverse-engineering its own code.

Now, VMProtect is the security software that Denuvo is currently being accused of having used within Denuvo without properly licensing it. That accusation was made semi-anonymously on internet forums by a purported VMProtect employee. Shortly after that accusation, both Denuvo and VMProtect seemed to indicate that the claims were not accurate, with VMProtect going as far as to say everything was now properly licensed. It also indicated that Denuvo had the proper licensing for its use in the past, though whether that was applied retroactively through a more recent purchase of licensing isn't entirely clear. Because of all of that combined with SteamPunks using VMProtect in a keygen aimed at destroying Denuvo, many are drawing the obvious conclusion: there's some relationship between SteamPunks and VMProtect, possibly from a disgruntled current or former employee.

That's speculation, of course. Less speculative is what the future holds for Denuvo if this keygen works as advertised. Denuvo would barely be a roadblock against piracy, meaning it may be time to start chiseling its tombstone.

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Posted on Techdirt - 8 June 2017 @ 11:50am

Kellogg's Takes Australian Tennis Player To Court For Branding Himself 'Special K'

from the special-kind-of-stupid dept

Last time we checked in with Kellogg's, makers of various breakfast and cereal products, they were happily sending out threat letters to a Mayan archaeology group that is only involved in the breakfast industry insofar as its employees eat breakfast, over its inclusion of a toucan bird in its logo. While Kellogg went on to settle that dispute, in light of its trademark claim being immensely dumb and a PR nightmare, the whole episode still left many of us wondering just how knowledgeable Kellogg's legal team is on trademark matters. Archaeology teams are not, generally, part of the breakfast or food industries. This seemed to be either bullying without a purpose or a brand of criminal stupidity at work. But, hey, even megalithic corporations with unlimited legal resources make mistakes.

Except we're now back to scratching our heads, as Kellogg's is going to court against an Australian tennis player because he wants to brand himself as "Special K."

South Australian tennis ace Thanasi Kokkinakis is at the centre of a court battle with global food company Kellogg’s over the right to officially brand himself Special K. Kokkinakis and volatile doubles partner Nick Kyrgios have been affectionately dubbed Australia’s ­Special Ks by the media and the public.

An unofficial Special Ks Twitter ­account has also been created in their honour. But US-based multinational Kellogg’s — which holds a 59-year-old Australian trademark for its Special K breakfast cereal — has launched Federal Court action in Adelaide to stop Kokkinakis, 21, from using Special K as part of a branding campaign across clothing and tennis wear.

This is the sort of thing that causes us to roll our eyes at how some companies look to enforce their trademarks. The whole point of trademark law is to keep the public from being confused as to the source of a product or service. Special K is indeed a well-known cereal brand. It is not, however, going to be confused for a doubles tennis team. Nor is anyone going to manage confusion at the sight of the term being used on tennis gear. Kellogg's, to my knowledge, is not in the athletics industry. It's a foodstuffs company.

Sadly, nobody involved in this legal dispute is commenting publicly about it as it is now set to go before a Federal Court. I say sadly because this is absurd. Either Kellogg's has a valid trademark for "Special K" for clothing and athletic wear, or it doesn't. If it did, I'm struggling to understand how Kokkinakis' trademark application wasn't denied by the trademark office immediately. That seems to indicate Kellogg's doesn't hold any such mark, in which case what are they doing? Different industries, laughably low concern for any consumer confusion, no infringement.

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Posted on Techdirt - 7 June 2017 @ 6:29pm

Brewery Sues Competitor Over Schooner Logos And Use Of The Word 'Head'

from the come-sail-away dept

Another day, another sigh-inducing trademark dispute in the craft beer industry. As we've discussed for some time now, the beer industry has a massive problem on its hands in the form of a deluge of trademark disputes between competitors. This has largely been the result of a huge uptick in craft brewers opening new businesses saddled alongside the tradition of creatively naming different beers and the limitations of the English language. Sometimes, however, you get a good old fashioned trademark dispute where one side is simply claiming similarities so tenuous as to be laughable.

Introducing Shipyard Brewing Co., which is suing Logboat Brewing Company claiming that because the latter both uses an image of a schooner on its label for its Shiphead beer brand and because the name of the beer includes the word "head" at all, that its a trademark violation. Let's deal with each in order, mostly because simply putting the beer labels side by side should allow us to take the schooner portion of the claim off the list of things we'll take seriously quite easily.


Do both labels use the image of a schooner? Yup! Are those uses, or the labels themselves, even remotely similar? Hell no! Shipyard's label is a picture of a schooner on the water, whereas Logboat's label is dominated by an image of a woman with a schooner for a head. You know, "shiphead." The beer labels themselves aren't remotely similar so as to rise to the level of trademark infringement.

Which Shipyard likely realizes, which is why they're lacing this trademark suit with the following claims: its the combination of the label and Logboat's use of the word "head" and the name it gave its outdoor seating area near the brewery that creates the customer confusion.

Shipyard further owns and has used other trademarks that contain the term HEAD as a suffix in relation to its beers, including, but not limited to, PUMPKINHEAD, MELONHEAD, and APPLEHEAD. Shipyard’s family of SHIPYARD, SHIP, and HEAD marks (collectively “Shipyard’s Trademarks”) all were in use and/or registered prior to Logboat’s earliest priority date of February 20, 2014.

The suit goes on to note that Logboat refers to its outdoor eating area as "the shipyard", which, yeah, the brewery has a boating theme. But with all of the examples of "ship" and "head" related trademarks owned by Shipyard, what the company chiefly demonstrates is that it does not have a trademark registered for "shiphead." The owner of that mark is Logboat, actually, which was registered in 2014 at which time no opposition was raised against it by Shipyard or anyone else. Logboat took to social media to explain:

“Logboat’s Shiphead Ginger Wheat trademark was registered by the U.S. Patent and Trademark Office following examination by a trademark examiner,” the statement said, “and successfully passed though the public opposition phase. Logboat’s mark was never challenged during the registration process as being likely to cause confusion with the trademark of any other party.”

What Shipyard is trying to do is string two or three tenuous trademark issues together and weave it into a valid trademark lawsuit. It's very unlikely to work, however, given how dissimilar the logos and marks are.

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Posted on Techdirt - 7 June 2017 @ 3:24am

VMProtect Accuses Denuvo Of Using Unlicensed Software In Its Antipiracy DRM

from the irony-thy-name-is-denuvo dept

To date, the most remarkable aspect of the Denuvo story was the very brief stint it had as a successful DRM. Brief is the operative word, of course, as the past six months or so have seen Denuvo's vaunted status devolve into one more typical of DRM stories, with defeats for the security software coming at rates measured in days and weeks of a game's release.

But now things have taken a turn towards the ironic. A security software firm called VMProtect, which makes software to protect against reverse engineering and developing cracks of applications, is accusing Denuvo of having used its software without properly licensing it. This is the kind of thing that folks who support DRM tend to call piracy. And, thus, Denuvo may have "pirated" another company's software to make its anti-piracy DRM.

According to a post on Russian forum RSDN, Denuvo is accused of engaging in a little piracy of its own. The information comes from a user called drVanо, who is a developer at VMProtect Software, a company whose tools protect against reverse engineering and cracking.

“I want to tell you a story about one very clever and greedy Austrian company called Denuvo Software Solutions GmbH,” drVano begins. “A while ago, this company released a protection system of the same name but the most remarkable thing is that they absolutely illegally used our VMProtect software in doing so.”

drVano goes on to detail the story to a degree that seems legitimate. Denuvo had met with VMProtect about using the latter's software, but had wanted to do so under the common and cheap $500 license offered publicly as a "personal license." Rolling that software into a distributed DRM obviously fell outside of that sort of personal use license, leading VMProtect to ask for much more in the way of money if Denuvo wanted to move forward. Denvuo declined, but then apparently went ahead an bought a personal license anyway and began rolling out the software in Denuvo DRM. VMProtect revoked the license due to Denuvo's breach of the license conditions, but Denuvo kept up its distribution anyway.

Which lead VMProtect to go on offense.

VMProtect then took what appears to be a rather unorthodox measure against Denuvo. After cooperation with Sophos, the anti-virus vendor agreed to flag up the offending versions of Denuvo as potential malware. VMProtect says it has also been speaking with Valve about not featuring the work of “scammers” on its platform.

“Through our long-standing partners from Intellect-C, we are starting to prepare an official claim against Denuvo Software Solutions GmbH with the prospect of going to court. This might be a very good lesson for ‘greedy’ developers who do not care about the intellectual property rights of their colleagues in the same trade,” drVano concludes.

The irony here is delicious. The precipitous fall of DRM, once claimed to be the end of software piracy entirely, culminates in what may be piracy on the part of that same company. All while the effectiveness of that DRM has dropped to essentially zero.

If the gaming industry were ever going to learn that DRM is a failed concept, Denuvo ought to be the teacher of that lesson.

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Posted on Techdirt - 5 June 2017 @ 3:01pm

Rime's Denuvo Defeated: Developer Gets To Work On DRM Free Version As Performance Hit Details Emerge

from the that-was-fast dept

As we had recently discussed, Tequila Works, makers of RiME, had promised pissed off customers that once the game was cracked and its Denuvo DRM defeated, it would release a Denuvo-free version of the game via a patch. The crack of the game came about almost immediately after this statement was made, because of course it was. To their credit, Tequila Works made good on its promise of a patch, while also blaming the use of Denuvo on Grey Box, its publisher.

But there's a secondary story here. The actual impact DRM has tended to have throughout its history has been mostly to annoy legitimate customers by either keeping them from playing the game they purchased at all, or by resulting in negative impacts on game performance. For RiME, it appears the issue is the latter, and the person who cracked the game is offering details of how Denuvo tried desperately to turn the dial on its software up to eleven, almost certainly impacting performance of the game.

In a fanfare of celebrations, rising cracking star Baldman announced that he had defeated the latest v4+ iteration of Denuvo and dumped a cracked copy of RiME online. While encouraging people to buy what he describes as a “super nice” game, Baldman was less complimentary about Denuvo. Labeling the anti-tamper technology a “huge abomination,” the cracker said that Denuvo’s creators had really upped their efforts this time out. People like Baldman who work on Denuvo talk of the protection calling on code ‘triggers.’ For RiME, things were reportedly amped up to 11.

“In Rime that ugly creature went out of control – how do you like three fucking hundreds of THOUSANDS calls to ‘triggers’ during initial game launch and savegame loading? Did you wonder why game loading times are so long – here is the answer,” Baldman explained. “In previous games like Sniper: Ghost Warrior 3, NieR Automata, Prey there were only about 1000 ‘triggers’ called, so we have x300 here.”

Those triggers are callbacks from the game to Denuvo's servers to verify it's legitimacy. This increase in triggers was almost certainly designed to make the game harder or more laborious to crack, though that obviously didn't work. But, as Baldman continues, the shocking 300k triggers just in the launch and loading screens was only the start. After a mere thirty minutes of gameplay, he recorded two million triggers. It's worth noting that RiME's rollout didn't go off as smoothly as the developer wanted, largely because of performance issues being reported by those who bought it. Baldman attempted to explain why at least part of those woes were likely this roided-up version of Denuvo mucking up performance.

“Protection now calls about 10-30 triggers every second during actual gameplay, slowing game down. In previous games like Sniper: Ghost Warrior 3, NieR Automata, Prey there were only about 1-2 ‘triggers’ called every several minutes during gameplay, so do the math.” Only making matters worse, the cracker says, is the fact the triggers are heavily obfuscated under a virtual machine, which further affects performance.

It seems pretty clear that whatever the percentage of the performance troubles RiME had that are the result of Denuvo, that percentage number is not zero. The DRM is having a performance impact at some level and it seems likely that having it ramped up so high would only increase the draw on power it needs to run. Denuvo is already denying that its software was responsible for the performance issues, but that should be easily cleared up now that Tequila Works is releasing a Denuvo-free version.

What remains unclear is why any developer or publisher would use Denuvo any longer. Pissing off your legitimate customers for protection that can be measured in hours is no way to build a customer base.

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Posted on Techdirt - 5 June 2017 @ 11:51am

Pokemon Go Decides To Troll Cheaters Instead Of Banning Them

from the trollkemon dept

Remember when Pokemon Go was the thing? What once was a legitimate craze has certainly died down from that level, but it's not as though the augmented reality game has simply gone away into oblivion. It still has a dedicated following pumping significant dollars into it. And, as with anything in the gaming space that has reached this level of popularity, the game has its fair share of cheaters looking to automate the game for better rewards. Much like the game's Pokemon evolve as a matter of its ethos, so too is the strategy that those behind the app are employing to combat those trying to cheat the game's system.

In the midst of the craze last summer, the developer, Niantic, had instituted a mass ban of players using automated systems and geo-spoofing techniques to crawl the game's landscape in search of critters to collect. The impetus for doing this is pretty clear: doing this sort of thing allowed players to route around the challenge of the game entirely and, therefore, avoid the reasons for making in-game purchases. But more recently, Niantic appears to be trying to have some fun at the expense of the cheaters instead of banning them.

As detailed by Pokémon Go enthusiast subreddit The Silph Road, a recent Pokémon Go update targets players who use bots to trawl the globe for valuable Pokémon. In case you forgot how Pokémon Go works, it’s an artificial reality game that forces players to move around in the actual real physical world to find and capture Pokémon. People who automate that process with a bot suck the fun out of the game. As of last week, many of those lazybones found popular spawning spots populated not by high-value monsters, but by boring Pidgeys and such. In practice, it’s like hunting for lions and finding nothing but squirrels.

When effective, this sort of tactic works on multiple levels. First off, hey, this is legitimately funny! Second, it also allows Niantic to avoid the appearance of escalation of the conflict between app and cheater. Cheaters want to work around the system through automation to find rare Pokemon? Well, the response is to simply drown them in common critters instead of banning them outright. It feels far more tit for tat than an outright ban.

Which brings us to the third way this is effective: Niantic doesn't come off as the bad guy here. There's no real PR hit to take here. Nobody likes cheaters in the system, but heavy-handed bans can cause everyone's eyes to narrow even when there isn't collateral damage, which there almost always is. Even the media coverage of this tactic looks at it as good fun.

And though yes, it’s mostly just silly fun that Niantic has started feeding its Pokémon Go gluttons a strict sawdust diet, it’s also a reminder that while the game has faded from its initial frenzy, it’s still a very big business.

Regardless, it's always nice to see game makers try to get more creative to combat cheating than simply whipping out the ban-hammer.

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