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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.




Posted on Techdirt - 13 December 2017 @ 3:41pm

Comic Con Verdict: Salt Lake Comic Con Loses The Battle, Now Seeks To Win The War

from the a-comic-can-of-worms dept

As you will all know, we've been covering the trademark case between San Diego Comic-Con and Salt Lake Comic Con pretty much since this whole dispute began some three years ago. From the outset, this whole thing seemed wholly unreasonable. Whatever trademarks SDCC managed to get past the USPTO, there are roughly a zillion comic cons across the country, few of which have any licensing arrangement with SDCC, meaning the plaintiff in this case hasn't bothered to enforce its trademarks for some time. That generally leads to the mark being abandoned, or considered generic. Either should have kept SLCC in the clear. Add to all that the fact that this is arguably a trademark that should never have been granted on the grounds that it's almost purely descriptive -- a "comic con" is a comic convention -- and many observers thought this was going to be an easy win for SLCC in court, including this writer.

Well, the jury has come back, and it managed to rule for San Diego Comic-Con instead.

In a case that could potentially complicate the lives of comic convention organizers the country over, a federal jury has ruled in San Diego Comic-Con’s favor in a suit brought against Salt Lake Comic Con for violating copyright law with their use of the term “comic con.” The verdict, which was arrived at on Friday afternoon, found SDCC’s trademark is valid, and that Salt Lake Comic Con used it without permission, according to a report by Fox13 in Salt Lake City.

That sound you hear in the distance is a hundred other comic convention organizers slapping their own foreheads. With this ruling, which SLCC may appeal, comic cons all over the place may feel more pressure to give in to any licensing demands from SDCC. Although, perhaps those other cons just need to run out the clock -- more on that in a minute.

I said SLCC may appeal this ruling for two reasons. First, the damages the jury awarded are almost laughably small and nowhere near what SDCC was asking for.

San Diego Comic-Con initially sought up to $12 million in damages from Dan Farr and Bryan Brandenburg, Salt Lake Comic Con’s organizers, but was rewarded only $20,000. According to the ruling, the violation was not a “willful infringement” of the copyright.

“It felt like it was a draw,” Brandenburg told Fox13. He told the news organization that he was currently considering whether or not to appeal. Additionally, Salt Lake Comic Con has proceedings underway with the US trademark office to officially cancel San Diego Comic-Con’s trademark.

And that last bit is the other reason it may not appeal and was my reference above to other cons simply running out the clock. The real misstep here might be in San Diego Comic-Con opening up this can of worms by bullying other cons over its abandoned, generic, descriptive trademark, with the potential end result being one of its victims getting that trademark cancelled entirely. Were I any other comic con in some other city in America, I would be trying to help SLCC getting this mark cancelled in any way I could. It would be a poetic end, to be sure, no matter what one jury thought of that actual case of trademark infringement.

So, more to come, I am sure.

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Posted on Techdirt - 13 December 2017 @ 10:46am

Smart Handgun Safe Not Smart Enough Not To Let Basically Anyone Break Into It

from the bang-bang dept

When we discuss the problems around "the internet of things" and app-controlled everything, we typically have to get into the weeds a bit about privacy, whether you own what you purchased, and the ethical implications of opening up an internet-connected service or product to potential hacking. On the security and hacking side of things, it should be clear by now that far too many companies don't take this stuff seriously enough. Our pages are rife with IoT devices being hacked, including everything from Barbie dolls to sports cars. It's enough to make you long for a company with a mission basic enough to develop a product so geared towards security that it couldn't possibly get this app-controlled thing wrong.

Well, how about a handgun safe? Take the Vaultek VT20i handgun safe, for instance. This safe can be opened either by inputting the user's PIN number, up to eight digits, either on the box itself or via a smartphone app. Now, you're probably wondering why someone who needs their hand-cannon would need to open the safe up with an app. It's a great question, but one we probably shouldn't worry about considering that some security researches found that you can just open that damn thing with a laptop instead, no PIN number needed.

The remote unlock feature is supposed to work only when someone knows the four- to eight-digit personal identification number used to lock the device. But it turns out that this PIN safeguard can be bypassed using a standard computer and a small amount of programming know-how.

As the video demonstration below shows, researchers with security firm Two Six Labs were able to open a VT20i safe in a matter of seconds by using their MacBook Pro to send specially designed Bluetooth data while it was in range. The feat required no knowledge of the unlock PIN or any advanced scanning of the vulnerable safe. The hack works reliably even when the PIN is changed. All that's required to make it work is that the safe have Bluetooth connectivity turned on.

Once this video and the code for the hack was released publicly, Vaultek snapped into action by releasing a statement claiming that this hack would take hours to pull off and would "require the ability to observe a correctly paired phone." To Which Two Six Labs said: "Nuh-uh!"

"Once you have developed this capability or written a script to do it, you can affect any safe in this product line in a matter of seconds," Austin Fletcher, Two Sixes Labs' lead vulnerability research engineer, told Ars. "Anyone can do this."

In a blog post disclosing the vulnerability, the researchers included most of the code required to exploit the vulnerability. A competent developer would need 20 to 60 minutes to supply the missing portion. With that, the developer could build a smartphone app that could silently break into any existing VT20i safe in seconds, as long as Bluetooth was turned on.

Now, Dustin Culbreth, VP of Product Development for Vaultek, has issued a second statement from Vaultek, promising a firmware update that will address this exploit. There are a couple of problems with that. First, despite all of the Bluetooth back-and-forth from this gun safe and Bluetooth devices, the safe isn't actually connected to the internet. So, to patch this exploit, gun owners are going to be sent a USB device and install the patch themselves (perhaps through no more effort than plugging it in, but this is unclear) or will have to ship the safe back to Vaultek to be fixed. In a world where user error is the mantra of anyone involved in supporting technology, one shudders to think so much security over a weapon would be effective only at the pleasure of the average end-user's dedication to patching their own gun safe.

And that brings me back to the question of why such an app-controlled gun safe is necessary to begin with. I know we have gun owners among our readers, so please chime in below with what I'm missing, but isn't it enough to unlock the PIN from the box instead of your phone? And, if not, is the application controlled unlocking feature worth this kind of risk?

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Posted on Techdirt - 12 December 2017 @ 7:40pm

Hospitality Industry Group Pushes Back On Portland's Attempt To Trademark Bully A Local Brewery

from the all-together-now dept

Just a quick update from Portland, Oregon, folks. After the city engaged in some truly impish behavior by trying to bully aside a local brewery that has a trademark on Portland's iconic jumping-deer sign, there have been no further negotiations on a resolution between the two sides. See, the city of Portland really wants to license the trademark for the image of the sign to national and international macrobrewers, whereas Old Town Brewing just wants to have the same trademark rights it has legally held for that image in the alcohol industries since 2012. You might have thought that a refusal of the mark by the USPTO would have ended this story. You would be wrong.

Apparently, the city has filed multiple trademark applications in the hopes that something, anything, will get approved. This is according to a Portland hospitality industry group, which has taken notice of the city's actions and is firing off angry letters to its own mayor as a result.

The Old Town Hospitality Group, which counts 25-plus restaurants and taverns, said in a letter to Portland Mayor Ted Wheeler that the city is "wasting taxpayer money." The issue relates to a trademark held by Old Town Brewing on the "leaping deer" logo, which adorns the "Portland Oregon" sign above the Burnside Bridge.

The Old Town Hospitality Group called on the city "to stop filing trademark application after trademark application for an image that the U.S. Patent and Trademark Office has repeatedly determined is confusing. Tell the city’s attorneys that it is wrong and an abuse of power to attempt to bury Old Town Pizza & Brewing in legal fees."

It's worth repeating that Old Town Brewing is in Portland. Its patrons, and likely its owners, are constituents of the very city actively trying to pretend its trademark doesn't exist while burying the tax-paying business in legal fees for no legitimate reason. Simply wanting really badly to license a trademark it doesn't own doesn't justify the city's actions. And, now that it's not just the brewery pushing back, but an industry group of member companies along with it, it might just be a matter of time before enough of the regular public gets wind of this and City Hall has a very real problem on its hands.

Or it could stop harrassing a local business, I suppose, but that seems like an awful lot to ask.

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Posted on Techdirt - 11 December 2017 @ 9:33am

MPAA Wins: Australia To Carve Google And Facebook Out Of Its Expanded Safe Harbor Provisions

from the rights-for-only-some dept

Back in November, we discussed some reforms Australia was looking to make to its copyright laws. Chiefly at issue was how safe harbors were incorporated into the law, with those provisions applying only to primary service providers like ISPs due entirely to what appears to be a simple poor choice of words in the law. Under strict reading of the law as written, websites, libraries, and schools that allow internet users to create their own content and engage online would not be subject to safe harbor provisions, unlike the country's American counterpart. The government initially signaled that it wanted to harmonize its law with EU and American law, before the lobbying dollars of the entertainment industry sprung into action, causing the government to walk this back a bit.

And, now, it seems that all it took was some meager conversation between government officials and industry representatives for safe harbors to be yanked away from the usual MPAA targets.

Shortly after the government embarked on a detailed consultation with entertainment industry groups. They accuse platforms like YouTube of exploiting safe harbor provisions in the US and Europe, which forces copyright holders into an expensive battle to have infringing content taken down. They do not want that in Australia and at least for now, they appear to have achieved their aims.

According to a report from AFR, the Australian government is set to introduce new legislation Wednesday which will expand safe harbors for some organizations but will exclude companies such as Google, Facebook, and similar platforms.

What should be immediately obvious is the complete lack of logic for this type of move. Either safe harbor provisions should filter down from the primary ISPs or they shouldn't. Carving out exceptions to these important provisions, which serve primarily to increase expression and foster activity on the internet, strictly to some of the most popular platforms on that internet at the behest of movie-makers is the sort of thing that one struggles to describe as something other than purely the sale of national law to commercial interests. Oddly, the government has confirmed that safe harbor would apply to the afore-mentioned library, culture and archive spaces, just not to Google and Facebook, which arguably do as much as any other sites for culture and to archive information.

This action is also a useful data point for anyone to keep in mind when the entertainment industry discusses American and EU safe harbor provisions. It's clear by this involvement with the laws of a sovereign nation that those groups hate safe harbor laws and would like nothing more than to do away with them entirely. Let's all just keep that in mind whenever some mewing spokesperson for the entertainment industry wants to comment on our own safe harbor laws domestically.

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Posted on Techdirt - 8 December 2017 @ 3:30pm

SLCC Rankles Judge With Social Media Posts As A Jury Prepares To Rule

from the oversharing dept

We've been following the trademark dispute between the Salt Lake Comic Con and the San Diego Comic-Con for some time now, including all of its strange ups and downs. Despite this whole dispute starting something like three years ago, the trial itself has kept a brisk pace, with SLCC already resting its defense and jury deliberations beginning this week as well. While we'll have to wait for the jury's decision, the trial has gone pretty much as we expected. SDCC rolled out its trademark registration that it appears to have forgotten it ever had until recently from an enforcement perspective, along with some commissioned surveys suggesting that the public views the word "comic-con" as a brand and not a generic term. SLCC has pointed out that there are a ton of other comic cons out there, few of which have any licensing agreement with SDCC, and SLCC had expert witnesses poke some glaring holes in the SDCC's survey.

Andrew Baker, associate professor of marketing at San Diego State University, reviewed the survey for Salt Lake Comic Con and testified Wednesday that the results are flawed. Because of risks he saw of "good participant bias," and because the online survey didn't include a way to weed out unreliable responses from people who may have attempted to fill out the survey for money, Baker criticized the results as inconclusive.

"This study cannot be relied upon to tell us the percentage of people who think comic con is a brand," Baker testified.

Bryan Brandenburg, one of the partners behind SLCC, took the stand to recount the process by which they came up with the name Salt Lake Comic Con. As you'd expect, he recounted searching around for other similar conventions, noting that nearly all of them were using the "comic con" phrase, or some variant of it, and concluding that this is just what those types of shows are called. It's an understandable position, particularly given the descriptive nature of the phrase. A "comic con" is a "comic convention." Simple. One would hope the jury would understand that simple fact.

But there was some minor drama in the courtroom surrounding SLCC's desire to speak out about the case on its social media platforms, specifically to do with Brandenburg's testimony and the defense he would offer.

The post announced that Brandenburg would take the witness stand to show that "comic con is owned by the people, by all the fans that experience the joy and celebration of comic con in cities all over the world."

Battaglia prohibited such arguments in the trial based on objections raised beforehand by San Diego. He warned that if Brandenburg intended to make any such statements during his testimony, "tell him to bring his toothbrush with him."

Notably, Brandenburg did not raise that defense on the stand, so His Honor was not forced to put him in jail. But this wasn't the only remark Judge Battaglia made on the subject. He expanded upon it in a way that shows him bristling with the striking down of his earlier gag order on SLCC from speaking at all about the case.

"The circuit seems to believe people can say whatever they want in the world and in the media, but they don't get that privilege in my courtroom," Battaglia noted Wednesday.

Well, okay then. While I've cheered on SLCC discussing the case in public for the benefit of that public, and while we were quite critical of Battaglia's gag order, the freedom to speak is not without its dangers. It's a little surprising that SLCC would be so cavalier with its public comments on social media sites that run directly contrary to the orders of a judge who had already tried to slap it with a gag order. That's just silly and a sign that, whatever happens moving forward, SLCC should probably get its PR house in order.

Regardless, the jury is in deliberations and you can be sure we'll be commenting on the results they bring back.

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Posted on Techdirt - 7 December 2017 @ 3:41pm

Opening Statements In The Trademark Battle Of The Comic Cons, While Other Regional Cons Go Full Judas

from the 30-pieces-of-silver dept

Our regular readers will know that we've been covering the years-long trademark lawsuit between the famous San Diego Comic-Con and the Salt Lake ComicCon since the very beginning. The whole thing has been something of a saga, with the SDCC issuing various threats and filing a lawsuit, while the SLCC has managed to fumble its way through court, getting slapped around for attempting various counter-logical defenses and even getting a gag order on it temporarily, unconstitutionally barring it from talking about the case publicly.

Well, the court heard opening statements in the case this past week, with the SDCC trotting out the same studies it had presented during the pre-trial motions.

Callie Bjurstrom, attorney for San Diego Comic-Con told jurors that Salt Lake Comic Con hijacked the Comic-Con trademark. That it “remained a small, intimate comic convention for decades” and that it wasn’t until the early 2000s that “the secret was out: Comics were cool and Comic-Con was the place to be to catch what was hot and what was next”. And as hundreds of similar conventions sprang up in cities across the country, Salt Lake Comic Con tried to “hijack” the trademark, to “steal the Comic-Con brand” saying “You don’t need to use ‘Comic-Con’ in your name to identify your comic and popular-arts convention… Convention is a generic term. Comic-Con is a brand” and that Salt Lake Comic Con is duping consumers into believing their events are associated, especially when they parked an Audi convertible near the San Diego Convention Center during the 2014 show, wrapped with promotions for the Salt Lake event.

SDCC commissioned a study that showed 82 percent of consumers recognize Comic-Con as a brand – a higher brand recognition rate than Jello and that “You don’t take or steal something that’s not valuable.”

Of course, the problem with this study is that no matter what the public in the SDCC's sample indicated, the simple fact is that comic conventions throughout the country have been using the term "comic con" with wild abandon. As they did so, it seems that the SDCC was in some sort of trademark hibernation for years, with no action against all of these national comic cons that I can find. SLCC made the same point in its opening argument, their defense seemingly settling on the notion that the term "comic con" had become generic.

Attorneys for the Salt Lake Comic Con and Dan Farr Productions said the phrase has become generic, part of the public commons, and therefore unprotectable. Michael Katz with Maschoff Brennan said that “Comic Con” is a generic term used to refer to a type of convention and that the show “looked to the industry” in naming their convention in 2013. “They used the same formula: Salt Lake to refer to where they were, and Comic Con to refer to what they were”. That Comic Con was a “national brand” and there could be no confusion between the one in San Diego and the one in Utah, which he called a “flyover state”, and that theirs was a “homegrown” event where four out of five attendees came from Utah, and it was so specific to the state that it didn’t run on Sundays because of Utah’s large religious population. And that “I don’t think we’re here because of large numbers of people confusing San Diego Comic-Con with Salt Lake Comic Con. … They have not been harmed by little Salt Lake. They have not lost a single customer to us. We are small potatoes”.

It seems that the SDCC fully anticipated this defense and decided to attempt to undermine it by finding a comic con out there, any comic con, to enter into a laughably cheap licensing agreement. That SDCC is doing this only at the same time it is bringing this suit to trial makes its motive plain and naked. It's a shameless attempt to give its long-abandoned trademark the imprimatur of now having an actual licensee. As disappointing as the SDCC's actions are, those of the sellout cons are all the more so. Just read the press release from Rose City Comic Con in Portland about how it licensed the "comic con" mark and you'll get an idea of just how likely it is that the SDCC basically scripted this thing for them.

“Rose City Comic Con, Portland, Oregon’s largest comics and pop-culture convention, is proud to announce its association with San Diego Comic Convention for its three-day event taking place September 7-9, 2018 at the Oregon Convention Center. Rose City Comic Con received the license at no additional cost to the show, and acknowledges the trademark owned by San Diego Comic Convention and is excited to affiliate itself with the prestigious event.”

“Comic-Con, the San Diego convention, is without question the biggest and most important event in the comics and popular arts industry every year. To have the respected event recognize the hard work of Rose City Comic Con by providing a license agreement is really remarkable for the city of Portland and the incredible community of creators we’re lucky to have here,” said Rose City Comic Con founder Ron Brister.

So moist does Rose City seem to be over its free license that it must have failed to understand the motive for this free gift by the SDCC and the damage it might do to all of the other comic cons out there that are now or might in the future be under threat by SDCC. Now, I don't believe that SDCC managing to squeeze a few licensees from this national barrel of turnips suddenly means that it didn't long ago abandon the "comic con" mark, but it seems obvious that these sorts of free licenses aren't for everyone. I expect the SLCC, for instance, would have jumped at a free license early on in this process. Perhaps it would instead have stood its ground on principle, but given the enormous cost in time and money, not to mention that this thing has dragged out now for several years, I doubt it.

So nice job, Rose City. While one con fights not just for its life, but for the common sense notion that "comic con" should no longer be considered a legit trademark, you went full Judas. Hope those 30 pieces of silver are worth it.

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Posted on Techdirt - 7 December 2017 @ 1:38pm

Canadian ISPs And Hollywood Agree On Plan To Make Themselves Judge, Jury and Website Executioner

from the who-needs-government? dept

If you take a quick look through the long history of posts we've done on the subject of site-blocking as a method for combating piracy, you'll notice that we've been fairly critical of the courts in various countries, which are issuing the blocking orders commonly. Here in America, the story is essentially the same, with only minor differences in the laws or lack of laws between each country causing barely different legal justifications for the censorship of sites that one entertainment group or another says is infringing. Too often, the courts appear to take plaintiff claims of infringement as gospel, where in some countries there is even a governmental framework that seems perfectly designed to abuse this process and have compliant courts exert as much collateral damage as possible. Our point all along is that there needs to be a refining of this process to keep the censorship out of the results and ensure that no speech that ought to be protected is caught up in the mix.

It should go without saying that the new plan being concocted by Canadian ISPs and various entertainment groups is not what we had in mind.

A coalition of movie industry companies and ISPs, including Bell, Rogers, and Cineplex are discussing a proposal to implement such measures. The Canadian blocklist would be maintained by a new non-profit organization called “Internet Piracy Review Agency” (IPRA) and enforced through the CTRC, Canadaland reports.

The new proposal is being discussed by various stakeholders including ISPs and local movie companies. As in other countries, major American movie companies are also in the loop, but they will not be listed as official applicants when the plan is submitted to the CRTC.

If something appears to be missing in all of that, it's probably because the plan doesn't make any room for anything resembling judicial oversight or the court system. Rather, this would all be implemented without any court orders or even filings from any actual copyright holder. Instead, rightsholders would inform ISPs that a site is "blatantly, overwhelmingly or structurally" built purely to engage in copyright infringement, and the ISPs would take it down. I'm sure the idea is to keep this to the most egregious of sites that are often quite bare of legitimate and protected speech, except we already know just how shitty ISPs are at being copyright cops, so it seems clear that they'll be relying almost exclusively on the word of rightsholders to implement these site-blocks.

Critics, including Michael Geist, are not pleased.

“Recent history suggests that the list will quickly grow to cover tougher judgment calls. For example, Bell has targeted TVAddons, a site that contains considerable non-infringing content,” Geist notes.

“It can be expected that many other sites disliked by rights holders or broadcasters would find their way onto the block list,” he adds.

Fortunately, all of this would have to go before the Canadian government before going into operations, and the CRTC doesn't seem to be all that enthused.

Thus far, the Government appears to be reluctant in its response. In comments to Canadaland spokesperson Karl Sasseville stressed that Canada maintains committed to an open Internet.

“Our government supports an open internet where Canadians have the ability to access the content of their choice in accordance to Canadian laws,” Sasseville says. “While other parts of the world are focused on building walls, we’re focused on opening doors‎.”

The timing of this is also quite poor, given the unfortunate conversation about net neutrality that is occurring with Canada's sub-friendly neighbors to its south. See, site-blocking has never been fully conflated with net neutrality thus far, in large part because the courts have been an admittedly imperfect check on telecom industry power abuse. But in this plan there is no court to provide that check, only a loose government agency oversight twice separated from the ISPs actions by a newly crafted non-profit.

Meanwhile, of course, the very attempt to skirt any representatives of the democratic government and its court system is about as against the public interest as it gets, as Geist points out.

“The government rightly seems dismissive of the proposal in the Canadaland report but as leading Internet providers, Bell and Rogers should be ashamed for leading the charge on such a dangerous, anti-speech and anti-consumer proposal,” Geist concludes.

Here, here.

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Posted on Techdirt - 6 December 2017 @ 7:31pm

Another Reason To Distinguish Alcohol Markets In Trademarks: Actual Infringement Defended By Use Across Alcohol Products

from the works-in-reverse-too dept

A brief review of all of the articles I've written in these here pages about sweet, delicious alcohol mostly have to do with trademark spats between drink-makers, including many in which I've made the point that it's high time for the USPTO to get a little more subtle when it comes to its alcohol marketplace designations. Beer isn't wine, and wine isn't liquor, and the public looking to buy one of those is quite unlikely to confuse one product for another. The focus of many of those posts was how this lack of distinction between the alcohol markets has resulted in too many aggressive trademark lawsuits and threat letters that hardly seemed necessary.

But there is a flip side to all of this that serves as another perfectly good reason for the USPTO to make a change. Recently, one liquor distiller sued another in what seems like a fairly plausible trademark infringement case.

Few Spirits, the maker of Breakfast Gin, has taken the Michigan-based Gray Skies Distillery to court over the planned December launch of its new whiskey, Breakfast Rye. As reported by MLive.com, Few’s counsel sent a notice in October telling Gray Skies it had “prior rights and registration” to Breakfast Gin, and told it to cease any use of Breakfast Rye. In the lawsuit, it alleged trademark infringement, unfair competition, and violation of Michigan’s Consumer Protection Act. In response, Gray Skies submitted a letter of protest to Few’s pending trademark application.

The Breakfast Gin producer is now seeking an injunction to prevent Gray Skies from selling Breakfast Rye, including damages if it goes up for sale in stores or in bars.

Now, we could spend time talking about just how valid a trademark the word "breakfast" is in the liquor industry -- whether it's generic, whether it's overtly common, and whether or not its actually somewhat descriptive of the flavor or ingredients within each liquor product itself. Frankly, I don't want to do that in this post. The trademark seems valid to me and it certainly isn't striking any well-tuned outrage chords in my psyche.

But one of the defenses proffered by Gray Skies' attorney, Thomas Williams, in its opposition to Few's trademark application shows exactly the problem with a lack of market distinctions in the alcohol industry, except in reverse.

"The use of 'breakfast' to describe alcoholic beverage products that have characteristics, aromas or flavors reminiscent of breakfast foods, is replete in the marketplace," Williams wrote. "For example, Founders Brewing Company markets and sells Founders Breakfast Stout and Founders Canadian Breakfast Stout. Dogfish Head markets and sells Beer for Breakfast Stout."

Except that none of that should actually matter. Few shouldn't be denied a trademark on the word "breakfast" due to the plethora of beer brews using the word in their names. Different alcohol medium, different customer base, different market. That the USPTO doesn't recognize any of that is the problem, of course, but it's disappointing to see the lawyers for a member of the industry ignore all of that over a simple trademark opposition. It's worth noting as well that the same lawyer, Williams, does not trot out this defense in response to the lawsuit Few filed. There instead he relies on the overall trade dress and, remarkably, claims that gin and whiskey customers are discerning enough to discriminate between types of spirits.

One of the factors in trademark law focuses on the likelihood of confusion over a product by consumers. Buyers of craft spirits are very discriminating, Williams said.

"I think we would vigorously dispute that anybody's going to be confused when you put the two products side by side in the market, he said.

Pick a lane, counselor.

By ignoring obvious market distinctions in the alcohol industries, the USPTO has allowed lawyers like Williams to try to play both sides of the argument. On the one hand, oppose a trademark because of similar marks in the beer industry. On the other hand, claim that similar marks within the spirits industry are just fine because gin and whiskey are basically in different markets. A little clarity through common sense any time now, USPTO.

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Posted on Techdirt - 5 December 2017 @ 7:48pm

Where Credit's Due: Budweiser Goes The Cool And Funny Route On Microbrewery's 'Dilly Dilly' Craft IPA

from the dilly-dilly dept

I like to give credit where credit is due. When it comes to the myriad posts we've written about Budweiser or its parent company Anheuser-Busch, the credit has mostly been to do with being intellectual property bullies and all around megalith caricatures. That said, the company's actions surrounding a recent case of actual trademark infringement show the company not to be without humor or grace when it actually tries.

Minneapolis brewery, Modist Brewery, recently unveiled a new double IPA it decided to call "Dilly Dilly." If that isn't ringing any bells, you must not have seen the series of kingly ads for Bud Light that I find funny, although I can't describe exactly why.

As part of the ad campaign, Budweiser trademarked the phrase "dilly, dilly", because of course they did. Whatever problems we might have with the practical application of trademark law in modern times, the phrase is creative, unique, and with the ad campaign it has become an identifier for the Bud Light brand. Modist Brewery even knew about the trademark. And it expected Bud Light to push back.

According to The Growler Magazine, the owners had an idea they would be getting a message from Bud Light after they found out “Dilly Dilly” had already been trademarked as a slogan.

“But then we said, ‘Screw it, let’s see what happens.’ And that’s what happens,” Kale Anderson told the magazine.

Yes, Budweiser did indeed respond...by sending an on-theme messenger to Modist Brewery.

In case you can't see the video, the "messenger" from Budwesider states the following.

“Hear ye, hear ye!” he began. “Dear friend of the crown, Modist Brewery Company, congratulations on the new brew: Dilly Dilly Mosaic Double IPA ...” the man read. “We are duly flattered by your royal tribute. However, ‘Dilly Dilly’ is the motto of our realm. So we humbly ask that you keep this to a limited edition one-time-only run. This is by order of the king. Disobedience shall be met with additional scrolls, then a formal warning, and finally, a private tour of the pit of misery.”

To make sure the disposition of the message was clear, the messenger goes on to gift two Super Bowl tickets to the brewery, as the game will be in Minnesota this year. Rather than being the bully, Budweiser added some humor to its request that the brewery, which knew about the trademark, simply not continue the run of the IPA under the infringing name past the limited run, and it managed to do so in an entertaining and congenial way. As far as cease and desists go, this is about as good as it gets.

And Budweiser is earning high praise in the press for all this, extending its branding message and bathing the Bud Light product in positive coverage. That's a pretty good look and a welcome departure for a company not known for being so human and accommodating.

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Posted on Techdirt - 1 December 2017 @ 3:43pm

Epic Sues 14 Year Old It Accuses Of Cheating In Videogames After He Counternotices a DMCA On His YouTube Video

from the what-a-time-to-be-alive dept

We called it. When Blizzard decided several years ago to try to twist copyright law into one hell of a pretzel in the name of going after video game cheaters, we said it was going to open the the door to other developers and publishers abusing the law in the same way. Blizzard's theory is that using a cheat in its games, particularly in its multiplayer games, was a violation of the EULA and created a copyright violation when the cheater continued to play the game he or she only "licensed." A deep dive into the actual substance of the copyright claims reveals them to be laughable, except Blizzard is rarely joined in court by its defendants, so no challenge to its pretzel-theory of copyright is ever put forward. Shortly after all of this, Riot Games joined in on this fun, deciding to apply the well-salted pretzel copyright logic to groups making cheats for League of Legends.

And, since it's not a real party until you have a third, now Epic Games is getting in on the action. And Epic went big for its first go around, deciding to actually sue a fourteen year old child who didn't make a cheat for Epic's Fortnite, but simply used a cheat. The fourteen year old was swept up in lawsuits filed against several cheaters for copyright infringement and, by all accounts, this fourteen year old was something of a pain in the ass for Epic.

One of the accused is a young man, who was banned at least 14 times since he started playing. Every time Epic took action, he simply created new accounts under false names and continued to play and cheat at Fortnite. What Epic Games probably didn’t know is that the cheater in question is a minor. The company likely obtained his name via YouTube or elsewhere, without knowing his real age.

This is the danger of suing end users using illicit cheats rather than going after the groups and sites that make those cheats available: kids play games. Kids also, apparently, agree to the very EULA that Epic is asserting triggers copyright infringement through the use of the cheat. Kids also occasionally have awesome moms, who angrily inform the court of all the reasons that this copyright suit is bullshit. The whole letter from the fourteen year old's mother is worth a read, but here are the most relevant portions.

Please note parental consent was not issued to [my son] to play this free game produced by Epic Games, INC,” the mother writes in her letter.

Epic claims that cheaters cause the company to lose money, but the mother doesn’t buy this since it’s a free game. Instead, she believes that the company is trying to blame her son for its failure to curb cheaters.

“It is my belief that due to their lack of ability to curve cheat codes and others from modifying their game, they are using a 14-year-old child as a scape goat to make an example of him.”

On top of all of this, a lawsuit against a fourteen year old simply for using a cheat for a video game is a public relations nightmare. On the other hand, Epic is in a horrible position. It would look odd to simply drop the suit against the fourteen year old because he's fourteen and still pursue the suits against the non-minor parties. Either what was done was either copyright infringement or it wasn't (it wasn't, but that's besides the point). The whole thing just looks... petty.

Meanwhile, as pointed out first by Torrentfreak, Epic has responded to the Mom's letter, which you can read here. The key argument that Epic makes is that it did not violate the law against naming a minor because it didn't know the kid was only 14 -- but then says that the mother's letter waived the teen's privacy anyway -- and thus asks the court for guidance on whether to ask the court to seal the information (which is already widely distributed) or not.

We did not violate Rule 5.2(a) or Local Civil Rule 17.2 because we did not know when we filed the papers that Defendant was a minor. Although there is an argument that by submitting the Letter to the Court containing Defendant's name and address, Defendant's mother waived this protection.... we plan to include only Defendant's initials or redact his name entirely in all future filings with the Court, including this letter.

This letter is to request the Court's guidance on whether the Court would like us to file a motion to seal the papers currently on the docekt that include Defendant's full name, re-file versions of those papers with Defendant's name redacted, or take any other remedial action.

Of course, another option would be not to abuse copyright law this way. Then Epic wouldn't have this problem.

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Posted on Techdirt - 30 November 2017 @ 3:39am

No Shit: Groundbreaking Study Shows That Giving People 12% Of The Video Content They Want Doesn't Magically Stop Piracy

from the you-don't-say dept

When it comes to offering good legal alternatives to piracy in the entertainment industry, there are two types of arguments people make. One is that these alternatives, if properly done, will reduce the rate of piracy within a population set. The other is that these streaming options are great revenue sources regardless of the impact on piracy within the population and that increased revenues are all that really matter. What virtually nobody has argued is that if a streaming service barely gives people anything they want, even if that service is free, that piracy will cease to be.

And, yet, researchers from Carnegie Mellon University and Universidade Catolica Portuguesa sought to disprove this non-claim anyway in a recent study.

The researchers used a piracy-tracking firm to get a sample of thousands of BitTorrent pirates at the associated ISP. Half of them were offered a free 45-day subscription to a premium TV and movies package, allowing them to watch popular content on demand.

To measure the effects of video-on-demand access on piracy, the researchers then monitored the legal viewing activity and BitTorrent transfers of the people who received the free offer, comparing it to a control group. The results show that piracy is harder to beat than some would expect.

Subscribers who received the free subscription watched more TV, but overall their torrenting habits didn’t change significantly.

This summary sounds quite damning, particularly for those that would argue that good legal alternatives can reduce piracy. In this case, a free temporary subscription to a streaming service barely had an impact at all. The researchers found that overall TV consumption went up a few points and reduced torrenting practices by a few points. Neither change was a significant one. So what gives?

The video-on-demand service in the study had an average “fit” of just 12% with people’s viewing preferences, which means that they were missing a lot of content. But even Netflix, which has a library of thousands of titles, only has a fit of roughly 50%.

Right, except 50% is a fairly big jump from 12%. Even accounting for the gifted streaming service being free and Netflix carrying a cost, a streaming service that has 12% of what a consumer wants is only barely discernible from useless. The power of Netflix is in how much content it has and, by virtue of its quantity, how much the average person will find on the service that matches their tastes. What this is actually showing is how much damage is done by content providers cutting exclusive deals with streaming services and fragmenting what could otherwise be one-stop streaming services. The real question is what happens when a streaming service actually has the content people want. It's a question this same study actually answers.

“Households with preferences aligned with the gifted content reduced their probability of using BitTorrent during the experiment by 18% and decreased their amount of upload traffic by 45%,” the paper reads.

A nearly 20% reduction in torrent behavior over this short a sample period is really good. It's so good, in fact, that it should be the feature outcome of this study. A streaming platform that is strong on the content people want can cut piracy by a fifth in forty-five days. How is that not the headline?

The rest of the study makes much of how little the pirate households said they'd be willing to pay for a streaming service like Netflix, something like $3/month. This is presented as evidence again in refuting a claim that nobody made: piracy won't magically go away just because there's a good streaming service. But all this result really shows is that these people were never going to be reasonable targets for customership to begin with. Netflix has had a huge adoption rate where available and its been another pure revenue stream for content creators. Who cares what the habits of a bunch of people who can't even manage to pay $3/month for Netflix are? They aren't important. Or, at least, they can't be nearly as important as all of the people who are paying their Netflix subscriptions, resulting in revenue for content creators.

So, will good legal alternatives pop up to reduce piracy? Probably, if they're done well. Will they ever stamp out piracy completely? Nope. Does that matter? Not if the only focus is on making content creators more money, because the focus in that regard should be on making streaming options as successful as possible, which is not what the content companies are doing.

Why they aren't is the real mystery here.

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Posted on Techdirt - 29 November 2017 @ 3:32pm

Chicago Considers Another Dumb 'Texting And Walking' Law To Raise Revenue

from the distracted-legislating dept

Since the advent of the smartphone, it seems that every few years or so, one government enttity or another suddenly has the brilliant idea that its constituency ought to have fines levied on them for "distracted walking." This catchall term has a much more specific meaning with in the laws in question: walking and using a phone at the same time. While this nonsense began mostly in foreign countries, there a few states in America that have some flavor of this kind of law on the books.

And now my beloved hometown of Chicago is looking to join the nanny government ranks in the most Chicago way possible: by charging enormous fines for "distracted walking" in a fairly naked attempt to generate revenue for the government.

Aldermen Ed Burke (Ward 14) and Anthony Beale (Ward 9) introduced an ordinance Wednesday aimed at changing pedestrians' bad behavior by fining them if they text or use a mobile device while walking through intersections in Chicago.

The measure proposed by Burke and Beale would fine pedestrians between $90 and $500 for each incident of using a mobile device while crossing a street or highway. The full City Council would have to pass the measure.

There are a myriad of reasons why these laws are silly. Given that we're talking about pedestrians here, it seems clear that these laws are being pitched as an attempt to protect the safety of the very citizens it would fine. That kind of parental hue of government is generally pretty silly, but not nearly as silly as expecting that a $500 fine will get someone to not blindly walk across a highway while texting, but the very likely result of being splattered across the windshield of an SUV wouldn't. In other words, were this crisis as dangerous as the good Aldermen suggest, the roads would be paved with blood, making for a perfectly suitable warning to distracted walkers. Notably, these deaths simply aren't happening.

Which is entirely besides the point, because if a fine that can be up to $500 for something as subjective as distracted walking is anything other than a cash-grab by a municipal government whose efforts to balance its budget are comedic at Mel Brooks levels, then I can't imagine what that other thing would be.

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Posted on Techdirt - 28 November 2017 @ 7:45pm

Activision Considering An Opposition To Trademark For Dog-Curbing Company 'Call Of Doodee'

from the shit-for-names dept

There's a line in Ian Fleming's opus Goldfinger that goes: "Once is an accident. Twice is a coincidence. Three times is an enemy action." It appears that as far as strange trademark attacks issued from entertainment properties upon canine-related services are concerned, we've officially reached the coincidence stage. You will recall that we were just discussing an odd trademark opposition filed from RZA of the Wu-Tang Clan against a dog-walking service calling itself Woof-Tang Clan. On the heels of that, we learn that Activision is mulling an opposition on a trademark application for a dog-poop removal service calling itself Call of DooDee.

Enter Call of DooDee, the clever name for a dog poop cleaning service that's not too hard to differentiate where they received their inspiration. The subject matter of the business itself in relation to the franchise is something that we're not even going to touch. Activision may not find the situation humorous, but you can bet we got a chuckle out of it. Someone who is not laughing however, is the Illinois business owner that filed the initial trademark.

While the application was filed with the USPTO in June, Activision recently asked for extended time to consider filing an opposition. While I would very much enjoy reading about intellectual property lawyers entering into long-form and serious legal discussions during which they would be forced to say the word "doodee" repeatedly, it should be immediately obvious to anyone involved that no opposition is warranted here.

While the name of the business is a clear homage to the phrase "call of duty", it's far less clear whether that homage has anything to do with the famous video game franchise. The phrase has military origins, to which the game franchise itself is a titular homage. Beyond that, there is no other tie between a dog-curbing service and the video game franchise. They operate in different industries and, frankly, on different planes of existence. One business is digital, while the other is material and fecal. While some haters of the franchise might indeed claim that it is very, very shitty, this is neither the sort of market tie that is material in trademark law, nor do I suspect that it is the sort of evidence for public confusion that Activision's lawyers would want present in its opposition.

I would hope that any plans for an opposition being filed would make its way into Activision's wastebin. Perhaps to sit alongside several knotted little blue baggies.

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Posted on Techdirt - 27 November 2017 @ 3:37pm

Wu-Tang Clan's RZA Opposes Trademark Application For Dog-Walking Company Called Woof-Tang Clan

from the sup-dawg dept

The last time we mentioned the Wu-Tang Clan here at Techdirt, we were discussing the group's bizarre yet inventive attempt to curtail digital music's infinite goods problem by releasing a single copy of an entire album for $1 million. It was a creative approach, though one that likely isn't a model that transfers well to the music industry as a whole. But it seems that the copyright arena isn't the only intellectual property venue in which Wu-Tang wants to play, as RZA, a member of the group, has filed a trademark opposition to a dog-walking company calling itself Woof-Tang Clan.

In a lawsuit filed November 15th, RZA (real name Robert Diggs) touted the long history of the Wu-Tang Clan mark and how its appearance on various goods and services "has come to represent enormous goodwill." The suit also claimed the Wu-Tang mark is "unmistakably associated with [RZA] such that it constitutes part of his identity."

Woof-Tang Clan's owner, Marty Cuatchon, filed a trademark application for his company on June 8th. As the New York Daily News noted, the company also briefly sold T-shirts on its website that made explicit reference to late Wu-Tang rapper Ol' Dirty Bastard's debut album, Return to the 36 Chambers: The Dirty Version. The shirt tweaked the album's famous cover – a snapshot of ODB's ID card for food stamps – to feature a dog named Bali in the rapper's place. Another shirt parodied the cover of De La Soul's 3 Feet High and Rising. Both have been removed from the company's website.

Now, the t-shirt aspect of this will muddy the waters as to just how valid an opposition this is. It's almost certain that RZA has a trademark for all things "Wu-Tang Clan" for apparel, after all. Still, the shirts are obvious parody, in line with Woof-Tang Clan's obvious homage as a parody in its business' name to begin with. Commercial in nature or not, this sort of parody is generally regarded as protected fair use.

Particularly, it should go without saying, when that use in no way deceives the consuming public about the source or affiliations of the supposedly offending company. That confusion is the controlling factor for trademark concerns and any claim that the public is going to think this small dog-walking company is run by or is affiliated with a world-renowned rap group is a hell of a logic-hurdle over which to leap. Rolling Stone's reporting suggests that RZA's filing claims that Woof-Tang Clan is suggesting a connection to the group, but all it actually suggests is that the folks behind Woof-Tang Clan are likely fans of the RZA and his cohorts. Marty Cuatchon, the man behind the company, confirmed as much.

Speaking with the Daily News Saturday, Cuatchon said he was unaware of RZA's trademark challenge and declined to comment until speaking with a lawyer. However, he did say, "I am a fan. We walk dogs. I thought it was a good idea."

A much better idea than this needless trademark opposition, I would say.

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Posted on Techdirt - 22 November 2017 @ 3:35pm

NFL Expands Streaming Even Further With New Deal With Verizon, Which Will Make Mobile Streaming Non-Exclusive

from the stream-dream dept

Long-time readers of Techdirt will know that for as long as I've written here, I've screamed for professional and college sports leagues to offer better streaming options. It has never made a lick of sense to me that an industry so reliant on eyeballs and advertising revenue would want to limit either by keeping people from watching their games. While we're not where I'd like to be, much has changed in the intervening years. Streaming from pro sports leagues has advanced considerably, both in terms of quality and availability. And, perhaps more importantly, this march has only gone in the direction of more and better streaming options.

A march that continues into the present, in fact, as the NFL appears to be on the verge of inking a new streaming deal with Verizon that is just as important for what it does not include as what it does. We'll start with what Verizon gets from the deal, which is an end to the hilarious limit on screen size for the NFL streaming product.

Verizon and the National Football League are in talks to sign another streaming rights deal. According to a Bloomberg report, the wireless provider and the NFL are close to finalizing a new deal that would let Verizon stream games to Internet-connected TVs, tablets, and phones. Verizon's previous deal only allowed it to stream games to devices with screens that are 7-inches or smaller, so the new deal would open up NFL games to Verizon customers who primarily consume TV content on smart TVs, tablets, and other large devices.

This tells us a number of things. First, it tells us that Verizon is betting relatively small phones aren't the only devices that NFL fans want to watch NFL games on. With the explosion of Smart TVs and mobile tablets with 4G connections, fans have never been more ready to stream an NFL game from so many places, whether it's on the go in transit or in front of a computer screen or tablet at home. Likewise, these deal terms tell us that the NFL too sees value in expanding streaming generally (more on that in a minute). No longer attempting to limit this deal specifically to smartphones, the NFL is knocking over the dam keeping streaming at bay. This, in case it wasn't obvious, should be shiver-inducing for terrestrial and cable TV networks that used to be the dominant players for sports broadcasts.

But what's not in the Verizon deal is what demonstrates just how big an opportunity the NFL sees in streaming.

According to people familiar with the matter, Verizon would also lose exclusive rights to air games on mobile devices as part of the deal. That means that while Verizon customers would have more device options for watching football, it may not be the only one to stream NFL games. Other wireless providers or streaming TV providers, such as Sling TV or DirecTV Now, may be able to strike their own deals with the NFL and provide streamed games to their subscribers through their own apps.

That's a big deal, particularly for a league that has operated with exclusivity deals essentially as a business mantra. Born of the era of network television, the NFL has long maintained these types of close broadcast partnerships, but now that is slipping away when it comes to streaming. And ultimately that's the only move that makes sense, as eyeballs and advertising revenue will be spread far and wide through the NFL's own network, making the real estate for ads on its broadcasts all the more valuable.

Streaming keeps expanding in pro sports. It's a great thing for everyone other than cable TV.

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Posted on Techdirt - 20 November 2017 @ 3:43pm

Drone-Maker DJI Offers Bug Bounty Program, Then Threatens Bug-Finder With The CFAA

from the that's-a-shitty-bounty dept

Far too many companies and industries out there seem to think that the best way to handle a security researcher finding security holes in their tech and websites is to immediately begin issuing threats. This is almost always monumentally dumb for any number of reasons, ranging from the work these researchers do actually being a benefit to these companies issuing the threats, to the resulting coverage of the threats making the vulnerabilities more widely known than they would have been otherwise.

But drone-maker DJI gets special marks for attacking security researchers, having decided to turn on one that was working within the bug-bounty program it had set up.

DJI, the Chinese company that manufactures the popular Phantom brand of consumer quadcopter drones, was informed in September that developers had left the private keys for both the "wildcard" certificate for all the company's Web domains and the keys to cloud storage accounts on Amazon Web Services exposed publicly in code posted to GitHub. Using the data, researcher Kevin Finisterre was able to access flight log data and images uploaded by DJI customers, including photos of government IDs, drivers licenses, and passports. Some of the data included flight logs from accounts associated with government and military domains.

Finisterre found the security error after beginning to probe DJI's systems under DJI's bug bounty program, which was announced in August. But as Finisterre worked to document the bug with the company, he got increasing pushback—including a threat of charges under the Computer Fraud and Abuse Act (CFAA). DJI refused to offer any protection against legal action in the company's "final offer" for the data. So Finisterre dropped out of the program and published his findings publicly yesterday, along with a narrative entitled, "Why I walked away from $30,000 of DJI bounty money."

Finisterre helpfully documented his interactions with several DJI employees, all of which paint a pretty clear picture of a company that encouraged his work in finding exposed data and insecure public-facing websites. So appreciative was DJI, in fact, that Finisterre won the top prize for its bug-bounty program: $30,000. That prize came for Finisterre's discovery that DJI's SSL certificates and firmware encryption keys had been exposed via GitHub for years. After receiving written confirmation from DJI that its servers were within the scope of the bounty program, Finisterre submitted his disclosure report.

That's when things got weird.

When Finisterre submitted his full report on the exposure to the bug bounty program, he received an e-mail from DJI's Brendan Schulman that said the company's servers were suddenly not in scope for the bounty program. Still, Finisterre received notification from DJI's bug bounty program e-mail account on September 28 that his report earned the top reward for the program—$30,000 in cash. Then, Finisterre heard nothing for nearly a month.

Ultimately, Finisterre received an e-mail containing an agreement contract that he said "did not offer researchers any sort of protection. For me personally, the wording put my right to work at risk, and posed a direct conflict of interest to many things including my freedom of speech." It seemed clear to Finisterre that "the entire ‘Bug Bounty’ program was rushed based on this alone," he wrote.

He goes on to note that he had several lawyers look over the contract, all of whom balked at the language it contained. Hiring any of them to work the contract to the point that it was something he would sign would cost several thousand dollars, reducing the bounty reward to the point that it wasn't really worth collecting. On top of all that, the language in the contract offered nothing in the way of protection from the CFAA, which is frankly insane for a bug bounty program. The whole point is to research vulnerabilities. Jail time is not supposed to be a risk in that sort of work.

When Finisterre decided to refuse the bounty and go public instead, DJI suddenly began calling him a "hacker" and acted as though it barely had any idea who he was, despite having interacted with him over hundreds of emails.

DJI is investigating the reported unauthorized access of one of DJI’s servers containing personal information submitted by our users. As part of its commitment to customers’ data security, DJI engaged an independent cyber security firm to investigate this report and the impact of any unauthorized access to that data. Today, a hacker who obtained some of this data posted online his confidential communications with DJI employees about his attempts to claim a “bug bounty” from the DJI Security Response Center.

DJI implemented its Security Response Center to encourage independent security researchers to responsibly report potential vulnerabilities. DJI asks researchers to follow standard terms for bug bounty programs, which are designed to protect confidential data and allow time for analysis and resolution of a vulnerability before it is publicly disclosed. The hacker in question refused to agree to these terms, despite DJI’s continued attempts to negotiate with him, and threatened DJI if his terms were not met.

DJI has also shuttered the bug bounty program, with emails to it resulting in bouncebacks informing the reader that while they can still submit bug reports, the bounties are no longer available.

And so here we are. DJI offered a bug bounty program that one researcher responded to with a report about some serious vulnerabilities, including the disclosure of DJI customer information. Instead of being grateful for that information and correcting it, DJI instead decided to go the strongarm route, resulting in the public now knowing just how bad at security DJI is. Way to go?

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Posted on Techdirt - 17 November 2017 @ 7:39pm

Judge Halts Copyright Troll's Lawsuit Against A Now-Deceased Elderly Man With Dementia And An IP Address

from the stop-stop-he's-already-dead dept

Stories about copyright trolls issuing questionable settlement demands and lawsuits using laughably flimsy evidence with no regard to mitigating circumstances are somewhat common around here. The most egregious cases range from trolls sending threat letters to the elderly to flat out suing the innocent. This sort of thing is essentially inherent in a business model that closely apes an extortion ring, and here's another quintessential example of that.

It all started when Venice PI sued a man for being part of a torrent swarm offering the movie Once Upon a Time in Venice. The judge in the case has put the proceedings on hold, noting rather harshly that Venice PI's evidence sucks, and that the man in question had severe enough dementia that his family says he couldn't even have operated a computer as described in the lawsuit and, at age 91, has died.

The man’s wife informed a federal court in Seattle that he passed away recently, at the respectable age of 91. While age doesn’t prove innocence, the widow also mentioned that her husband suffered from dementia and was both mentally and physically incapable of operating a computer at the time of the alleged offense.

These circumstances raised doubt with US District Court Judge Thomas Zilly, who brought them up in a recent order (citations omitted).

“In two different cases, plaintiff sued the same, now deceased, defendant, namely Wilbur Miller. Mr. Miller’s widow submitted a declaration indicating that, for about five years prior to his death at the age of 91, Mr. Miller suffered from dementia and was both mentally and physically incapable of operating a computer."

Oops. Still, the condition of the copyright troll's victim wasn't the topic which received Judy Zilly's harshest criticism. That distinction goes to the quality and quantity of evidence Venice PI produced in its lawsuit. The Judge notes that this evidence amounts essentially to nothing more than an IP address. He then goes on to suggest that any tracking of IP addresses that pointed to Mr. Miller being a torrent-y type of guy should have its accuracy immediately questioned. Beyond that, the judge indicated that Venice PI can't use that IP address to try to find, you know, actual evidence.

Moreover, plaintiff may not, based solely on IP addresses, launch a fishing expedition aimed at coercing individuals into either admitting to copyright infringement or pointing a finger at family members, friends, tenants, or neighbors.

To that end, lawyers for Venice PI are barred from having any contact with Miller's family or any other unnamed defendant in this case. In addition, Zilly is demanding any other evidence the plaintiff's can produce -- likely none --, as well as information on how IP addresses in bittorrent swarms might be spoofed. The judge goes on to say that if no further evidence can be presented, the claims will be dismissed with prejudice.

It's simply great to see a court get this so correct in a copyright troll case. Too often trolls are allowed to skate by in presenting evidence that isn't evidence at all, with no ground given to the sort of mitigating testimony offered by Miller's widow. That Venice IP hasn't dismissed their case against the now-deceased man is an added stain on its trollish soul.

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Posted on Techdirt - 17 November 2017 @ 3:47pm

Good Ruling: Court Affirms Fox's Victory In Trademark Suit From Empire Distribution Over Its Hit Show 'Empire'

from the like-a-fox dept

In far too many trademark disputes, including those that actually reach the courthouse, there is far too little in the way of nuance when it comes to ruling. While I've long complained about a lack of focus on some of the higher-level concepts within trademark law, such as how the overall focus should be on public confusion and the simple fact that the category designations within the USPTO are far too broad, there is typically not enough recognition in the real minutia within the law as well.

But that simply isn't the case in a ruling from the 9th Circuit Court of Appeals on a lawsuit filed by Fox Television for declaratory relief from threats issued by Empire Distribution, Inc., a record label, over trademark concerns and Fox's hit show Empire.

Some background is in order. Empire, for those of you who don't know, is a show about a family-run record label in New York City called Empire Enterprises. Empire Distribution is a real-life label that has worked with names as big as T.I. and Snoop Dogg. At some point, Empire Distribution sent trademark threat notices to Fox, claiming that the name of the show was a trademark violation. In response, Fox filed for declaratory relief, which the district court granted. Empire Distribution appealed, resulting in the 9th Circuit Court of Appeals reviewing the decision and affirming it.

But it's why the ruling was affirmed that is the star of this legal show, with the detailed court opinion laying out the nuance of the law.

On Thursday, the 9th Circuit reviewed the district court's summary judgment decision, and in affirming Fox's victory, decided to apply the Rogers test, which was first developed by a sister appellate circuit in 1989 in response to Federico Fellini's 1986 film Ginger and Fred, which triggered a lawsuit by Ginger Rogers.

The Rogers test, as it's called, resulted from that case and says that the title of a work is not infringing on trademark except if the title has no artistic relevance to the overall work or if it explicitly misleads the public as to the source of the work. For example, if someone were to create a television show called Michael Jordan's Cooking Hour, the public would think that the former Bulls star was involved with it. If he wasn't, the title of the show would infringe on any trademarks he might have for television shows (along with a host of other infringements, likely). But Empire, the Fox show, gets its name from the fictitious company it portrays, along with its setting in New York City, giving the title artistic relevance. It also does nothing to attempt to mislead the public into thinking that there is any involvement or reference to Empire Distribution. Therefore, Empire passes the Rogers test.

Empire Distribution argued that part of the artistic relevance portion of the Rogers test includes a requirement for the new work to reference the older entity to be considered artistically relevant and protected. The court basically slaps that idea down and suggests that Empire Distribution's legal team doesn't understand the Rogers test at all.

This is how a work fails the first prong of the Rogers test: by bearing a title which has no artistic relevance to the work. A title may have artistic relevance by linking the work to another mark, as with 'Barbie Girl,' or it may have artistic relevance by supporting the themes and geographic setting of the work, as with Empire. Reference to another work may be a component of artistic relevance, but it is not a prerequisite. Accordingly, the relevance of the word 'empire' to Fox’s expressive work is sufficient to satisfy the first prong of the Rogers test.

The court goes on to say that Empire passes the Rogers test on the second prong as neither the show nor its title makes any claims or references to Empire Distribution, and is therefore doing nothing that is "explicitly misleading."

For us trademark nerds, it's a great ruling with a wonderful explanation of some nuance in trademark law and precedent. For Empire Distribution, who never should have made such silly threats, it's simply a judicial beatdown.

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Posted on Techdirt - 16 November 2017 @ 1:46pm

Cards Against Humanity's Trolling Of Trump's Border Wall Shows How The Internet Has Removed Gatekeepers

from the trump-card dept

I suppose because too many of my fellow citizens in America have devolved into hyper-partisan rage-beacons, I have to issue the following stupid caveat that I shouldn't have to issue at all: this post is not a commentary on Trump's border wall policy. Great. I'm sure that will keep our comments free and clear of anyone insisting otherwise. With that being said, a common topic we discuss here is how one of the chief benefits of the internet is how it has removed gatekeepers that have long stood in the way of new businesses, or have governed how established businesses do their business. Typically, we have focused on the former, detailing how the internet has allowed for new players in everything from the entertainment industry to products that would have previously existed solely at the pleasure of brick and mortar retail stores.

But this post is about the latter. You may have heard about the viral video making the rounds from the folks behind the hit card game Cards Against Humanity. If you haven't, here it is.

I have to admit, the video is really well done. If nothing else, it serves to remind us that content is advertising and advertising is content.

But it's also true that a campaign that essentially trolls the sitting American President by buying a piece of land where his proposed border wall is going to go and then vowing to defend that land legally for as long as possible is controversial to say the least. Some not inconsequential percentage of Americans -- and, likely, our readers -- think that the border wall is good policy. Some other percentage do not. Whatever you might think, it should be clear that this campaign is likely to piss off some decent chunk of the company's potential customer base. Why the company wants to do this is a valid question, but I'd like to point out why they can do this.

Given the nature of the game, the company has no problem being a bit brash, and because they are self-owned, and don't rely on big box stores to push their product, the company can get away with a bit more.

That's putting it mildly. It's nearly impossible to envision the company taking so staunch a political stance as this were it forced to rely on traditional retail stores, which would likewise feel backlash from supporters of the border wall. You likely have already imagined how many calls there would be on retailers to drop the product if this happened, except it's more likely that the folks behind Cards Against Humanity never would have done this in the first place, save for their ability to sell directly to consumers via the internet.

Political stances are also not a new habit for the company. It's even addressed on the company's FAQ page on its website.

On its FAQ page for the new expansion, one question asks: I don't like that you're getting political. Why don't you just stick to card games?

Their answer? "Why don’t you stick to seeing how many Hot Wheels cars you can fit up your asshole?"

My kind of people, obviously. Again, whatever your political leanings, it's worth recognizing how any company is now more free to engage in controversial behavior like this simply because the gatekeepers are gone and the internet reigns.

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Posted on Techdirt - 16 November 2017 @ 3:23am

Russian Foreign Ministry Accuses America Of Supporting ISIS With Video Game Footage

from the fake-it-until-you-make-it dept

The history of governments attempting to demonstrate either their own military prowess or the dastardly actions of others -- usually America -- is long and storied. South Korea used footage from war games to show off weapons I guess it must not have, Egypt attempted to pass off game footage as Russian airstrikes against ISIL/ISIS/whatever they're supposed to be called, and North Korea attempted to show off its nuclear capability by pinching some Modern Warfare 3 footage. Even Russia has tried its hand at this, attempting to show that America was arming Ukrainian rebels with Stinger missiles with some stills from the game Battlefield 3. That any of these countries thought they would get away with these fakes is nearly as funny as their having not considered how much international egg they'd have on their faces once they were found out.

But you'd at least have thought these countries would learn their lesson. In the case of Russia, it seems not so much. The Russian Defense Ministry recently accused the American military of, get this, helping ISIS in order to promote American interests in the Middle East. While that claim is, on its face, fairly laughable, so too was the photo evidence Russia provided.

If those images look sort of familiar to you, it's probably because you've played AC-130 Gunship Simulator: Special Ops Squadron. It seems that the photographic evidence offered by the Russian Defense Ministry is just more video game stills.

In a sign of how lazy some propagandists can be, on Tuesday the official Russian-language Twitter account for the country’s defense ministry tweeted a selection of photos, claiming the images were irrefutable evidence that the U.S. was helping ISIS terrorists. However, one of the photos the Ministry of Defense tweeted (and later deleted) appears to be from the video game AC-130 Gunship Simulator: Special Ops Squadron, a clip of which is available on YouTube. The account also posted the photos along with a longer body of text on Facebook. Researchers from verification and citizen-journalism platform Bellingcat debunked the photo after someone else tweeted it, claiming a video was live drone-attack footage over Mosul, Iraq.

Whatever those other photos are from, it's clear they are not from American forces happily supporting ISIS. We've done bad things in this country, but this claim is simply off the reservation.

Russia, for its part, deleted the debunked photo, but maintained the claim that America is now helping ISIS in the Middle East. Maybe we can grab a couple of stills from The Adventures of Rocky and Bullwinkle as evidence that Russians are committing mass genocide of all moose and squirrel.

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