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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.

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Posted on Techdirt - 16 August 2017 @ 1:29pm

The MPAA Narrative About Piracy Flips To Danger From Pirate Sites Now That It Has Lost The Moral Argument

from the that-won't-work dept

For years, years, the MPAA's public fight against piracy has chiefly consisted of a moral argument against it. Proclamations of the end of movies, the downtrodden future of filmmakers, and claims about piracy being equatable to outright theft were the tools of a Hollywood lobbier that itself exhibited the most underhanded sort of tactics in its attempts to get the internet to stop being the internet. It seems facile to state that this moral argument failed to find any purchase with the public, as filesharing went mainstream anyway. The reasons for this should be rather obvious: the arguments the MPAA made and the dooms it foresaw for itself and its industry were provably false. File sharing and piracy are a thing, yet movies still make gobs of money, allowing the MPAA to pay its executives the sort of handsome sums reserved for successful agencies. Still, Hollywood kept to its talking points. Piracy is wrong. Morally wrong.

But it seems that even the MPAA is ready to concede that it has fully lost this argument with the public. The latest from those that worked for the MPAA appears to be that it now wants to switch narratives from a moral argument to one of public danger.

The MPAA's former VP of Worldwide Internet Enforcement says that the industry narrative on piracy is no longer based on trying to get people to act ethically. Hemanshu Nigam says the discussion today is based around the dangers that pirate sites can pose to those who visit them. Few listened before, will they listen now?

Hemanshu Nigam is a former federal prosecutor, ex-Chief Security Officer for News Corp and Fox Interactive Media, and former VP Worldwide Internet Enforcement at the MPAA. In an interview with Deadline this week, he spoke about alleged links between pirate sites and malware distributors. He also indicated that warning people about the dangers of pirate sites has become Hollywood’s latest anti-piracy strategy.

“The industry narrative has changed. When I was at the MPAA, we would tell people that stealing content is wrong and young people would say, yeah, whatever, you guys make a lot of money, too bad,” he told the publication. “It has gone from an ethical discussion to a dangerous one. Now, your parents’ bank account can be raided, your teenage daughter can be spied on in her bedroom and extorted with the footage, or your computer can be locked up along with everything in it and held for ransom.”

Now, while Nigam works for the DCA (Digital Citizens Alliance), and the DCA is in part funded by the MPAA, it's worth carefully examining his and the MPAA's stance here to see whether this tactic will be any more effective than the previous moral argument. I think it's likely to fail, for several reasons. The first, as the TorrentFreak post points out, is that those that pirate content are consumers in the business sense. They are a form of customer for the sites that offer this sort of pirated content and they have all the same whims and wills of any paying customer. In other words, a site that lures the public in with pirated content for the purpose of deploying malware to them isn't going to keep its traffic for long.

In the Deadline piece, however, Nigam alleges that hackers have previously reached out to pirate websites offering $200 to $5000 per day “depending on the size of the pirate website” to have the site infect users with malware. If true, that’s a serious situation and people who would ordinarily use ‘pirate’ sites would definitely appreciate the details. For example, to which sites did hackers make this offer and, crucially, which sites turned down the offer and which ones accepted?

It's important to remember that pirates are just another type of consumer and they would boycott sites in a heartbeat if they discovered they'd been paid to infect them with malware. But, as usual, the claims are extremely light in detail. Instead, there's simply a blanket warning to stay away from all unauthorized sites, which isn't particularly helpful.

These sorts of blanket statements to stamp out piracy generally have the ring of a scare tactic for these reasons. Still, scare tactics can certainly work. Will this one? Again, I think not, due to a point we made earlier: file sharing is now mainstream. How many readers of Nigam's interview will be able to easily say that the doom he's warning them of hasn't happened to them as they've engaged in file sharing? The number is going to be quite large, it stands to reason. Rather than the scare tactic working, then, this will come off more like a Reefer Madness for piracy, an analogy everyone from TorrentFreak to the author of the Deadline interview seems to be making. If that happens, the DCA and MPAA take yet another hit to their credibility. There is even evidence that the public generally isn't listening to this latest argument of danger and those that are, are not particularly impressed.

Earlier this year the DCA launched a video campaign, enrolling 15 attorney generals to publish their own anti-piracy PSAs on YouTube. Thus far, interest has been minimal, to say the least. At the time of writing the 15 PSAs have 3,986 views in total, with 2,441 of those contributed by a single video contributed by Wisconsin Attorney General Brad Schimel. Despite the relative success, even that got slammed with 2 upvotes and 127 downvotes.

A few of the other videos have a couple of hundred views each but more than half have less than 70. Perhaps most worryingly for the DCA, apart from the Schimel PSA, none have any upvotes at all, only down. It’s unclear who the viewers were but it seems reasonable to conclude they weren’t entertained.

Not a great start for this narrative shift, to be sure. The public is steadily becoming more educated on the dangers of malware and viruses, as well as the proper security strategies for their electronic devices. Because of that, vague doomsayers warning of the digital apocalypse stemming from file sharing sites that have only become more popular aren't likely to find a great deal of fertile ground for their efforts.

On a related note, is all of this really easier and more effective than simply coming up with better ways to make money in the digital economy?

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Posted on Techdirt - 15 August 2017 @ 3:33pm

One Twitter Account's Mission To Make White Supremacists Very, Very Famous

from the should-have-worn-your-hoods dept

After the ugly stain that was this past weekend, when a group of "protestors" took to the streets of Charlottesville to "protest" the removal of a statue commemorating some loser who lost a war because he was a loser, there has been an unfortunate strain of calls to crack down on speech rights of these imbeciles. It's exactly the wrong sort of reaction for a number of reasons, not the least of which is that starting down the road to relieving the rights to speech you don't like today can come back and bite you in your ass tomorrow. Our own Tim Cushing's take on how important it is to defend the speech rights of those we dislike the most is among the best I've read, but it focuses on the need to rally support for speech rights in the face of outrage. Left unsaid is at least one potential solution to the speech polution that occurrs when a bunch of race-obsessed jackwagons decide to throw a party: more speech and expression.

To see one example of this in action, we can take a look at a delightful Twitter account, @YesYoureRacist, and its mission to make the sort of people that publicly expose themselves as racist very, very famous.

The @YesYoureRacist account began tweeting pictures of demonstrators on Saturday, asking, "If you recognize any of the Nazis marching in #Charlottesville, send me their names/profiles and I'll make them famous."

It's been credited with outing a University of Nevada student, who acknowledges attending a rally in Charlottesville Friday night but maintains he is not a racist.

That student, of course, then went on to say that he was only attending the rally to preserve a statue of Robert E. Lee because he believes "the replacement of the statue will be the slow replacement of white heritage within the United States", which, you know... racist. If you've seen the now famous photos of the white supremacists marching, this student is the one you've seen screaming while wild-eyed. That's notable for a very specific reason: the people at these types of rallies used to wear hoods over their heads. And for good reason, as they didn't want the wider public to be able to identify them alongside their detestable beliefs.

But not so in Charlottesville. Instead, the ralliers marched with their faces in full view of the public, allowing the man behind @YesYoureRacist to retweet the photos to his thousands of followers, identify them by name, find out where they go to school and/or work, and then contact those places to inform them they have a racist in their midst thus allowing them to take action if they choose. None of this, by the way, should be confused with doxxing, the process by which jerks on Twitter detail personal information from those that are trying to keep personal information secret. No, these protesters marched proudly in public, splashing their easily-identifiable faces all over the newswire. @YesYoureRacist, through speech and expression, is now simply making them even more famous.

This isn't to say that all of this will go on without a hitch. It won't. Already there have been mistakes made in identifying some involved in the white supremacist marches. One man was misidentified when followers of @YesYoureRacist decided that passing resemblances without any further checking were enough to vilify a man who was not at the rally, is not a white supremacist, and in fact runs a laboratory dedicated to helping people. Because extremism is everywhere these days, this man was threatened to the point of his deciding his home was no longer safe.

But that is a failure of a good idea gone too far, not of the idea of supercharging the fame of horrible people itself being bad. What is needed there is better speech and sleuthing, not an end to it. Free speech and expression gets the messiest in these sorts of endeavors, after all, and those mistakes don't nullify the overall good being done. As Ken "Popehat" White points out in a useful tweetstorm more speech is good, but so is a careful and proportional response:

Oh, and also this:

Now, if those currently calling for limiting the speech rights of white supremacists and Nazis had their way, how many less faces would we have in the photos of people that outed themselves? Far, far less, obviously. As I've always said, a big part of the reason I defend the rights of racists to be racists is because I want the racists to reveal themselves. And then folks like @YesYoureRacist can go about making them famous.

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Posted on Techdirt - 11 August 2017 @ 3:56pm

Paris Olympic Committee To Consider eSports For 2024

from the estadiums-are-cheap-at-least dept

While eSports, or competitive video gaming, has now been a thing for some time, it's rather swift rise in stature is still sprinting past milestones. Once a hobby sport relegated primarily to a few countries in Asia, eSports has since seen its inclusion in college athletics, in coverage on ESPN, and into the business models for real-life major sports leagues. If you were tracking what would be the next natural progression on the eSports legitimacy map, you wouldn't be surprised that the latest milestone reached is the consideration for making eSports a medal event in the Paris Olympic games scheduled for 2024.

The Paris Olympic bid committee will consider esports for inclusion as a medal event in the 2024 Olympic Games, according to Tony Estanguet, the committee’s co-president. Estanguet told the Associated Press that talks have been scheduled with the International Olympic Committee and with esports representatives “to better understand what the process is and why it is such a success.”

Estanguet also had some thoughts for esports skeptics out there: “We have to look at it because we can’t say, ‘It’s not us. It’s not about Olympics.’ The youth, yes they are interested in esport and this kind of thing. Let’s look at it. Let’s meet them. Let’s try if we can find some bridges.”

If you might be thinking that this consideration will meet the same swift death past niche competitions have met at Mount Olympics -- competitive poker for instance -- it's worth noting that the distinction here is the medal event, not the inclusion in Olympic games generally. The Rio games already showcased eSports competitions as exhibition matches and Asia's Olympic Council has already included medal events for eSports in the 2022 Asian Games. It seems whatever fortifications have been built against eSports gaining entry to the Olympic castle have already been splintered, making eSports' inclusion in 2024 all the more possible.

Still, we'll have to wait to find out the verdict on this one.

The Paris Olympics 2024 program will be finalized after the 2020 Tokyo Olympics, so the committee will have years to consider the question and take note of the reception to these showcase competitions.

“There is some time to look at it, to interact, to engage,” said Estanguet. “The IOC will have the last say, if they want esports on the program.”

I for one am greatly looking forward to the great fustercluck that will be the IOC's enforcement of its claimed intellectual property rights over the broadcasting of competitions using copyrighted and trademarked gaming content specifically to a fanbase that, by its nature, knows how to use technology to subvert both. Should be fun.

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

London Mayor Fingers The Culprit In Increased Knife Crime: YouTube

from the mmm-no dept

With only minimal media fanfare, violent crime is on the rise in London. There have been many explanations on offer for this, ranging from the refugee migrant crisis to drastic cuts to funding for youth services. Specifically noteworthy is the upward trend in knife violence, which, we will note, began before the Middle East refugee crisis, but has accelerated since. Knife attacks have risen not only in what could be called "terrorist" incidents involving Islamic extremists, but also in the more banal gang-related type of incidents as well. As experts search for the real cause and solution to all of this, however, London Mayor Sadiq Khan insists he has found the real enemy in all of this: YouTube.

London mayor Sadiq Khan has criticised Google’s YouTube after it failed to take down four violent gang videos describing killing methods and threatening rivals, which were flagged by police. The videos reportedly show gang members waving a large Rambo-style knife as they attempt to goad rivals. The videos have been watched more than 356,000 times and have not been removed despite YouTube’s terms saying it takes “threats, harassment, intimidation (and) inciting others to commit violent acts” seriously.

“Google, YouTube and other platforms have a responsibility to the millions of young people using their sites every day, and it is vital that they toughen up their guidelines, remove breaches immediately and work with partners to help ensure such horrific videos do not reappear. Lives could depend on it,” said Khan. “Social media and the internet can be used to inflame tensions and escalate violence quicker than ever before, and these videos are a shocking example of the glamorisation of gang culture.”

It will never cease to amaze me how many people can look at a complex social problem with all sorts of subtle causes and influences... only to turn around and find an easy scapegoat in technology. Specifically the internet. London has endured a 24% rise in knife crime and His Honor is going to war with YouTube over four whole videos. In the first link in the introduction above, the New York Times interviews youths now carrying knives, typically found in their kitchen drawers, and provides a fairly good explanation of why these youths are arming themselves in the street. Absent from the prose of that article as any mention of teens slipping blades in their pockets because a YouTube video told them so.

It's also worth noting that these videos make for great evidence for convicting bad actors when they actually do carry out attacks.

Similar violent videos helped convict four men for the murder of 18-year-old Marcel Addai in September 2015, and have been used in other successful prosecutions.

Now, YouTube has reviewed the specific videos in question and has decided to leave them up, while also noting that it is committed to working with police to take down true violent content. The problem in all of this is that there is a fuzzy line drawn between valid expression and an actual threat. If I wanted to, I could twist all kinds of content on YouTube and claim it represented real violent threats, from political expression to drill rap videos that often feature weapons to dramatic expressions. What YouTube typically requires is verified context that a threat made in a video is both specific and real before taking it down. It has deemed these videos not to cross that line.

“We work closely with organisations like the Metropolitan police to understand local context and specifically, so that we can understand where artistic expression escalates into real threats. We’re committed to continuing and improving our work on this issue and making YouTube a hostile space for those who seek to do harm.”

Which is as it should be, no matter the London Mayor that wishes to scapegoat the internet while too many of his own citizens bleed in his own streets.

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Posted on Techdirt - 9 August 2017 @ 6:50pm

North Carolina Passes An Entirely Misguided Restore Campus Free Speech Act

from the speech-is-speech dept

You will recall that we were just discussing a proposed law in Wisconsin that sought to do a number of things on college campuses, including limit the ability to protest and shout down controversial speakers, as well as mandating quite insanely that school administrations must "remain neutral" on the "controversial" topics of the day. It's a source of frustration for me that it's not immediately clear how bad an idea this is for any number of reasons. My two chief complaints about the law, built upon a legislative proposal from the Goldwater Institute, are how broad a range of topics this could conceivably cover and how it quite plainly seeks to favor one form of speech over another. Put simply, giving state governments oversight about which topics a university administration is allowed to opine while also mandating punishments for students who protest to shout down speakers is about as anti-free speech as it gets, even as the proponents of the legislation attempt to shroud themselves in that most sacred of American ideals.

Well, North Carolina also had a similar bill under consideration, and indeed the state went ahead and passed its Restore Campus Free Speech Act. When you travel to that National Review link and/or read the pull quotes below, keep in mind that these are the words of a supporter of the bill and someone, Stanley Kurtz, who worked on the original Goldwater proposal.

The North Carolina Restore Campus Free Speech Act achieves most of what the Goldwater proposal sets out to do. It ensures that University of North Carolina policy will strongly affirm the importance of free expression. It prevents administrators from disinviting speakers whom members of the campus community wish to hear from. It establishes a system of disciplinary sanctions for students and anyone else who interferes with the free-speech rights of others, and ensures that students will be informed of those sanctions at freshman orientation. It reaffirms the principle that universities, at the official institutional level, ought to remain neutral on issues of public controversy to encourage the widest possible range of opinion and dialogue within the university itself. And it authorizes a special committee created by the Board of Regents to issue a yearly report to the public, the regents, the governor, and the legislature on the administrative handling of free-speech issues.

It all sounds so reasonable until you actually think about the implications of the law. Let's address them in order.

To start, requiring a university to affirm the importance of free expression is the kind of pablum born from trying to establish that there is a problem where one doesn't actually exist. Does anyone imagine that polling the nation's universities on this question would result in some schools saying, "Meh, free expression isn't that big a deal"? Come on.

As for disinviting speakers that "members of the campus wish to hear from", let's talk about that. First, how many members of campus are we talking about? And how are we to gauge their interest? If some tiny college group wants to invite a controversial speaker to campus to speak, where 90% of the campus doesn't want them anywhere near the campus, the administration is simply supposed to keep its hands tied? Or are the numbers something different? All of this is unclear in the law, even as it happily neuters a school's ability to manage its own campus. Why is a state legislature a better arbiter of who belongs on campus than the school itself?

Then there are the disciplinary sanctions on students that "interfere with the free-speech rights of others". This is the really silly part, because it seeks to scholastically criminalize speech in order to protect speech. The proponents of this law will want to say that this refers to students rioting, or accosting would-be invited speakers, but there are already laws on the books to prosecute those crimes. Instead, this law seeks to punish students that attempt to shut down speaking engagements via peaceful protest, which is a form of speech. The law originally required mandatory suspension from school for students who are found to have violated the law twice. The universities beat that back and had it struck, but the proponents of the bill aren't even pretending that they aren't trying to stop anything other than the speech of students, while also detailing how its newly-created committee reports will be used to simply toss out adminstrators lovers of the law don't like.

Without the mandatory suspension for a second offense, the university could conceivably undermine the law through lax enforcement. Yet it’s not as simple as that. If the university refuses to discipline shout-downs in the wake of passage of this law, there will be consequences. For one thing, the annual report of the Board of Governors will either condemn the refusal to discipline, or the committee will itself be subject to public criticism. A negative report on the administrative handling of discipline would give the Board of Regents a reason to replace administrators, and legislators a reason to cut university funds.

Punishing "shout-downs"? That's a pretty bald-faced acknowledgement that this bill will curb the free speech of students in favor of the free speech of invited speakers. In other words, this bill cuts in only one direction: students that are paying to attend school now have less speech rights than guests invited onto the campus. If that doesn't immediately demonstrate how flatly gross this bill is, you need to recalibrate your sensors.

Look, I said this in the last post, but I'll say it again: anyone that wants to say that campuses today are not as open to outside or unpopular viewpoints as they once were or should be won't get anything other than agreement for me. I tend to think the problem is overstated in certain circles, but I do agree that campuses today are generally less open-minded than they should be. But the solution to that is to win the argument via speech, not to run crying to state legislatures to simply curb the speech of others.

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Posted on Techdirt - 7 August 2017 @ 7:41pm

NY Mets Oppose Trademark For Medical Exam Tracking System (METS) Claiming Potential Customer Confusion

from the swing-and-a-miss dept

Look, dear reader, I live in the real world. I see a great many people genuinely confused about a great many things that shouldn't be confusing, so I'm aware of how many morons in a hurry occupy this planet. Still, I'm struggling to imagine anyone being confused by the trademark application currently being opposed by the New York Mets baseball team.

Comprehensive Health Services, a source for workforce medical services, registered a “METS” trademark for its proprietary Medical Exam Tracking System, trademark records show. The Cape Canaveral-based METS, according to the trademark application, provides “online non-downloadable cloud-based and client-server software for generating, managing and exchanging medical information.”

The Flushing, NY, Mets, in a notice of opposition filed with the US Patent and Trademark Office on July 24, are objecting to the award of the trademark to the Florida outfit. The baseball Mets claim both companies are practically in the same business and the public could be confused.

The "practically in the same business" claim rests on the Mets noting that the team provides "online non-downloadable software online for the purpose of facilitating organization of information about baseball games, events and venues." Practically in the same business appears to be a gross exaggeration on par with my claim that I am the beacon of sexual charisma for North America. I'm trying to picture the reaction of the person examining this opposition, hoping they had the same mind-halting moment at reading this.

The only other claims in the opposition appear to rest on the fact that the Mets have held their own trademark for half a century and yet another strange claim that the logos for both companies would be confusing, because apparently the public can't differentiate between the New York City skyline and a heart rate monitor line.

Apparently that’s enough for the MLB team, whose logo includes a backdrop of Gotham’s skyline, to take further issue with a METS’ mark that depicts what its application calls a “stylized heart rate line.”

Here's the proposed logo. Try not to go into a blithering stupor over your own confusion.


This is normally where I'd come up with an arguably witty retort to how silly this all is, but I shouldn't have to. This opposition by the New York Mets is bonkers.

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Posted on Techdirt - 4 August 2017 @ 1:36pm

Def Leppard Claims Music Piracy Is Bringing Younger Audiences To Its Concerts

from the rock-for-all-the-ages dept

The last time we checked in with 80's rock band Def Leppard, the band was busy "forging" its own songs as a way to release its own back catalog without having its label cash in off of it. So bad was the relationship with Universal Music, apparently, that re-recording all of that music was the better option compared with having to deal with the label. So, one might wonder how the band views illicit music downloads then, amidst its anger at its label for not paying them properly.

Well, it turns out that Def Leppard thinks music piracy is making them a killing in concert revenue.

In an interview with Ultimate Classic Rock, Def Leppard guitarist Vivian Campbell has been describing why he believes piracy has its upsides, particularly for enduring bands that are still trying to broaden their horizons.

“The way the band works is quite extraordinary. In recent years, we’ve been really fortunate that we’ve seen this new surge in our popularity. For the most part, that’s fueled by younger people coming to the shows,” Campbell said. “We’ve been seeing it for the last 10, 12 or 15 years, you’d notice younger kids in the audience, but especially in the last couple of years, it’s grown exponentially. I really do believe that this is the upside of music piracy.”

What's useful about Def Leppard's stance on this is that the band cuts around all of the usual pushback from copyright defenders. The band is not "just a startup with nothing to lose from piracy"; they're a household name. The band is also not "simply a bunch of has-beens trying to eek out a few more years of meager revenue"; their popularity is surging. Campbell's stance is also not simply one-sided in the belief that younger fans getting free music brings in the concert revenue. He also believes these new, young fans make the bands music better.

“There’s a whole new energy around Leppard, in fact. I think we’re playing better than we ever have. Which you’d like to think anyway. They always say that musicians, unlike athletes, you’re supposed to get better. I’m not sure that anyone other than the band really notices, but I notice it and I know that the other guys do too. When I play ‘Rock of Ages’ for the 3,000,000 time, it’s not the song that excites me, it’s the energy from the audience. That’s what really lifts our performance. When you’ve got a more youthful audience coming to your shows, it only goes in one direction,” he concludes.

This is the part of music obtained freely that never gets mentioned: the multiplier effect it has on a bands relevance and longevity. This isn't to say that such a model works for every band in every instance, but it's refreshing to see an artist step back and try to get the full picture of what's really going on here. It would be quite easy for someone like Campbell to see the young faces in his audience and never give a second thought to how those younger fans got to a Def Leppard concert. By taking an intelligent look at that question, however, Campbell has reached a place where he's found a friend where he might have seen an enemy.

The band is also very active on YouTube, even as the site has recently become a chief target of the music industry as a source of evil, evil piracy.

One only has to visit Def Leppard’s official YouTube channel to see that despite being born in the late fifties and early sixties, the band are still regularly posting new content to keep fans up to date. So, given the consumption habits of young people these days, YouTube seems a more likely driver of new fans than torrents, for example.

The band's embrace of the internet as a tool for generating interest and revenue isn't merely passive, in other words. The band that made its name decades ago is using today's tools to actively cultivate a new audience, which then shows up at the concerts, bringing in ticket revenue and revenue from merchandise. All, again, as the band is re-energized for its own on-stage performances. It's difficult to find the downside for the band in any of this, perhaps because one does not exist.

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Posted on Techdirt - 3 August 2017 @ 6:39am

Canadian Man Somehow Gets Trademark On His Own County's Name, Govt. Says Legal Action Is The Only Remedy

from the you-pay-for-our-mistakes dept

It's stunning how often trademarks that never should have been granted get granted -- leading to all sorts of bad outcomes. One area that sees far too many bad trademarks involves trademarking geographic areas, with the holder of the mark often then trying to lock out local businesses from using the name of the locations in which they reside. If ever there were a trademark type that everyone ought to agree should be rejected, it's one based purely on geography.

Entirely too many of these slip through. For example, one Canadian man managed to get a trademark on the name of the county in which he resides, with the stated aim not of using it in commerce, but rather protecting that name's reputation.

Michael Stinson caused a stir among government officials in Haliburton County last week when they learned he had successfully trademarked the name Haliburton. Stinson says he never intended to deceive or harm anyone, and explains that he trademarked the name so others couldn’t “tarnish” the name of the community.

Now, the Canadian government's site is pretty clear in stating that this sort of geographic trademark is flatly not allowed, but somehow Stinson got it through anyway. Way to go, Ministry of Innovation, Science and Economic Development. As for Stinson, his claim for why he applied for the trademark is neither the purpose of trademarks generally nor is it apparently the actual reason why he got this specific trademark.

Haliburton County’s chief administrative officer, Mike Rutter, says he’s not sure how the trademark could have been allowed. Rutter says he first became aware of the issue when the county’s chamber of commerce started receiving complaints.

“We received a call from our local chamber of commerce that Mr. Stinson was attending businesses and advising people that they would owe him money if they were using the name Haliburton,” Rutter says.

If true, this would seem to me that Stinson is a bully, attempting to extort local businesses with a trademark that never should have been approved by the Canadian government. This is the damage that can be done by trademark offices not following their own damned rules and not adhering to the purpose of trademark laws to begin with. Stinson appears to be rather slimy, but it's worth focusing on the fact that he couldn't be doing any of this is had the Canadian trademark office bothered to do its damned job.

With that in mind, you're probably thinking that the Ministry would simply recognize its mistake, invalidate the trademark, and everyone except Stinson can go on their merry way. Noooooope.

Haliburton Coun. Murray Fearrey says he contacted the federal department that handles trademark issues and was told the only option to resolve the matter would be for the county to take legal action.

“I'm upset that we would even have to even think about spending taxpayer dollars on something that should never have happened, as a result of some civil servant making a mistake,” says Fearrey. “I can't believe there isn't a political process (instead), because if you pass legislation there's always a way to amend it or rescind it.”

So a federal department funded by taxpayers shits the bed in doing its job and then informs a local government that more tax money must be wasted to fix it? That's plainly revolting. Nearly as revolting as Stinson's goals for turning the county and his trademark into a money-making machine.

Stinson says, however, that while he’s approached some local businesses about his trademark, he hasn’t received any fees so far. He says he hopes to work with local officials on the matter and wants to make Haliburton “a big brand name with the co-operation of the county.”

“I’m optimistic that we can all meet and discuss these issues at hand in a timely matter, whether it’s the county of Haliburton, our MP, and our chamber of commerce,” he says.

Fortunately, county officials have stated that they are interested in only one outcome from this whole fiasco: the invalidation of Stinson's trademark entirely. Nobody should be able to hold businesses hostage with a trademark like this and heads ought to be rolling in the Canadian trademark offices for any of this happening to begin with.

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Posted on Techdirt - 2 August 2017 @ 6:40pm

Would You Confuse 'Pierogi Fest' With 'Edwardsville Pierogi Festival'? Neither Would We

from the hot-potato dept

You write about enough trademark disputes and you come across some real whoppers. And, man, have I seen some doozies. Still, I never stop being suprised by how silly these things can get. Today's example of this revolves around the Chamber of Commerce for Whiting, Indiana sending out trademark threat letters to the Edwardsville Hometown Committee in Pennsylvania over the latter's 'Edwardsville Pierogi Festival.

Lawyers for the Whiting Pierogi Fest in Whiting, Indiana, recently sent a letter to the nonprofit Edwardsville Hometown Committee demanding it stop using the trademarked name or pay royalties for its use.

They claim the usage leads to “unfair competition” and “is likely to cause consumer confusion.”

Two separate letters were sent to this effect, actually, both making the claim that consumers would be confused between a suburban Chicago "Pierogi Fest" and the "Edwardsville Pierogi Festival." These claims rest on the Chamber's federally registered trademark for "Pierogi Fest", which is itself a laughably broad and almost perfectly descriptive phrase, causing me to wonder how the USPTO approved the mark to begin with. That aside, it should be obvious that any fears for consumer confusion between two geographically distinct (678 miles!) pierogi festivals would make Chicken Little roll his eyes. And it's worth mentioning that both of these threat letters included offers to license the trademark for money, as well.

Well, the Edwardsville Hometown Committee declined to license the phrase and has instead filed suit for declaratory relief. In that filing, the Committee reveals that it was not the only recipient of the Chamber's threat letters.

25. The Hometown Committee has both existing contractual relationships with the sponsors of the Edwardsvilie Pierogi Festival and potential contractual relationships with additional sponsors for upcoming Edwardsville Pierogi Festivals. 26. By sending correspondence to sponsors of the Edwardsville Pierogi Festival threatening them with liability for trademark infringement, the Chamber has purposefully and intentionally sought to harm the relationship of the Hometown Committee with its existing sponsors and to prevent prospective relationships between the Hometown Committee and future sponsors of the Edwardsville Pierogi Festival.

So the Chamber sent threats to the sponsors of the Committee's Pierogi Festival as well. Not a good look when we're talking about a trademark as broad and descriptive as "Pierogi Fest", particularly when there are lots of other festivals using that same name already. I'm not sure if the Chamber thinks it has a great licensing opportunity with all of the pierogi festivals out there or not, but it's certainly not doing a great job of protecting the trademark it never should have been granted.

I imagine Whiting's Chamber of Commerce actually never expected to find itself in court, figuring Edwardsville would simply bow to its demands and license the mark. Hopefully the court will see fit to take this case to its proper end and invalidate the "Pierogi Fest" trademark entirely.

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Posted on Techdirt - 2 August 2017 @ 10:46am

NCAA Strips UCF Kicker Of Eligibility After He Refuses To Stop Being An Athlete That Posts YouTube Videos

from the nice-speech-you-have-there... dept

You may recall that several months ago, we discussed Donald de la Haye, kicker for UCF and a very good YouTube personality to boot. After racking up thousands of subscribers and millions of views at his YouTube channel, where de la Haye discusses all manner of things, including his football career, the NCAA came a-calling. The organization first informed him that he would have to shutter his channel completely, arguing that the advertising revenue it generated violated NCAA rules, which are designed to make sure that all student athlete activity that generates revenue does so only in the direction of the NCAA. Then, after the backlash, the NCAA reportedly offered to let de la Haye keep his YouTube channel, but only if he agreed to essentially never reference who he is or what one of his primary life activities is: football. It was a deal devoid of sense, as his football playing career is among the primary motivators for people to check his channel out to begin with. It's also a strange stance coming from an organization purportedly in the business of supporting student athletes as they become full-fledged adults, limiting his creative expression over a concern of YouTube revenue from his own fans.

Because of that, de la Haye refused the deal. As a result, the NCAA has announced that de la Haye is no longer eligible for the upcoming football season.

De La Haye has been ruled ineligible for the upcoming college football season, according to the NCAA. De La Haye had an opportunity to make a deal with the NCAA that would limit his creative output, but he declined it. De La Haye did not respond to our request for comment, instead tweeting that he’s “mind blown” and passing along the following message:

Here's the tweet.


Now, the NCAA apologists have already started making noise about how the NCAA was upfront with de la Haye about all of this and only asked that he not take advertising revenue or not discuss his football career. And it appears that both claims are absolutely true. Many, because of that, are falling into the trap of thinking that this was somehow an acceptable deal for de la Haye to take, or for the NCAA to offer in the first place. It is neither of those things.

The NCAA is a money-making machine. Full stop. As a money-making machine in league with higher learning institutions of grown men and women, to baldly offer to allow creative expression of a student athlete if and only if it can control that student's message and expression is insane. We're not talking about de la Haye getting endorsements or signing merchandise, or any of the other examples of things that might threaten his status as an amateur athlete that happens to contribute to the NCAA making millions of dollars. Instead, we're talking about a purely creative output published directly to fans of de la Haye. Censoring it and threatening his educational career in the name of college sports revenue is disgusting.

Fear not, because the days of the NCAA are numbered. Still, the damage it can do in the early stages of its death throes is gross.

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Posted on Techdirt - 31 July 2017 @ 6:36pm

MLB Comes To Its Senses And Declines To Oppose Overwatch League Trademark

from the intentional-walk dept

We recently discussed how Major League Baseball had asked for an extension with the USPTO so its legal staff could decide whether it wanted to oppose a trademark application for eSport organization Overwatch League's new logo. The request was more than a little head-scratching for a variety of reasons. As we pointed out in that post, the two logos aren't particularly similar and certainty don't appear to give ground to any confusion among the public about any affiliation between the leagues.

Different color schemes, different fonts, and clearly identified names of the league on each logo didn't give MLB much ammo for a trademark opposition. Add to that the plethora of sporting league logos done in a similar style that actually do use the same color scheme, yet don't face aggression from MLB, and it raises the eyebrow as to why MLB's lawyers wanted to even go so far as to ask for an extension over any of this.

Well, it seems that either MLB's lawyers are Techdirt readers or they simply came to their senses (I choose to believe it's the former), because the time to file an opposition has come and gone with no action taken on MLB's side.

Major League Baseball has decided not to oppose Blizzard Entertainment’s OverwatchLeague trademark filing, per law firm Morrison / Lee. As part of the OWL’s trademark review process via the Trademark Trial and Appeal Board, organizations have the opportunity to oppose trademarks—and earlier this month, the MLB was reportedly preparing a challenge, along with a request for a 90 day extension.

The deadline to file the challenge and extension, July 26, has now come and gone without issue. OWL’s trademark is presumably in place, and while it could still be challenged as a trademark infringement down the road, such a challenge is unlikely given the lack of current filing.

While MLB has been happy in the past to be the bully on trademark issues, it seems it decided even this one was too silly to take on. That doesn't feel like it deserves applause as much as brief sigh of relief at one less dumb trademark issue I'd have to write about.

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Posted on Techdirt - 28 July 2017 @ 3:40pm

Cigar City Brewing Sues Cigar City Salsa Over Trademark Despite Being In Different Marketplaces

from the salsa-beer-isn't-a-thing dept

I'm generally not much for the summer season, but one sensation I do love is getting home from work on a painfully hot day, having just purchased a six-pack of beer, and cracking open a cold one in the evening. The only thing that occasionally gets in the way of that is when I lift the bottle to my mouth and then immediately realize that instead of beer, I bought salsa.

Wait, that doesn't ever happen. And, yet, according to a lawsuit brought by Cigar City Brewing against Cigar City Smoked Salsa, customer confusion appears to be a chief concern.

Cigar City Brewing is suing Cigar City Smoked Salsa for trademark infringement, alleging that the labels and marks used by the salsa maker are so similar to the brewery’s material that consumers may think both products come from the same company.

Fine, so the suit doesn't so much allege that customers are going to confuse salsa and beer, but rather that the same company might be making both of them. The filing itself claims that there have been instances of actual confusion with the public and purchasing agents for stores that thought both products were made by the same company. That, frankly, is difficult to believe. It's all the more difficult to believe that this occurs on a large scale, for multiple reasons.

To start, Cigar City is a common moniker for Tampa, Florida. It's a nod to the large Cuban population there. As such, there are all manner of businesses that incorporate the nickname into their business names. Types of businesses include gyms, music management, cattle farming, comedy clubs, and so on. It's not a terribly good identifier of source for that geographic area, in other words.

To get around this, the filing goes to some lengths to try to suggest that beer and salsa are in fact in the same markets by virtue both that the items are sold in the same stores and, incredibly, that the public sometimes likes to have a beer and eat chips at the same time.

Plaintiff’s beers and Defendant’s salsa are sold in the same channels of trade, including grocery stores, and liquor stores. For example, both parties’ products are sold in Publix Supermarkets, Walmart stores and ABC liquor stores, among others (Exhibits 13, 14, 15 and 16). Beer and salsa, typically with snack chips, or with salsa on or in entrees, are frequently consumed together by the same persons and are thus purchased by the same types of consumers.

Except that isn't how markets are defined in trademark law. Instead, belligerents must be in direct competition with each other in their products for the markets to be a match, and salsa is not beer. They are closer in terms of the marketplace than, say, Cigar City Crossfit, but I imagine that beef sourced form Cigar City Cattle Company may well be sold in those same stores, yet there is not trademark action against them. So far, in summary, we have a common nickname used by two businesses in disparate industries.

Now, the filing goes on to note that Cigar City Brewing is opposing the trademark registration for Cigar City Smoked Salsa, but that this opposition is pending. So this suit was filed before the USPTO has even had a chance to weigh in on the matter, which seems like a mistake. If nothing else, the ruling on the opposition would provide Cigar City Brewing with either more ammunition for its lawsuit, or, if defeated, an indication that it probably shouldn't file the suit to begin with. And the outcome of that opposition isn't exactly an assured slam dunk for Cigar City Brewing, as its own Exhibits in this lawsuit comparing the trade dress are of questionable use. First is the labels on the salsa that Cigar City Brewing repeatedly objects to as infringing and confusing.


And here is Cigar City Brewing's own logo. For what it's worth, they have several iterations of this and I chose the one most favorable to Cigar City Brewing's position.


I'm certain the brewery is trying to make a point complaining about the two logos, although what that point could possibly be is beyond me. Beyond both being black and white images, little else about the two logos has anything to do with the other. Frankly, the filing is full of exhibits like this, pretty much all of which offer nothing more compelling than this side by side comparison. I just cannot believe anyone in the grocery or liquor business is seriously confused by any of this.

So, a common nickname used in different industries with trade dress that isn't similar while a trademark opposition is currently in process. Why in the world was this thing ever even filed?

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Posted on Techdirt - 28 July 2017 @ 6:27am

How Arby's Dealt With Their Greatest Twitter Troll By Being Awesome; Also Sandwiches And Puppies

from the thumbs-up dept

There are many ways to handle being trolled on Twitter if you're a company or a famous person. You can track down the trolls, investing hundreds of hours all for a payoff that amounts to showing up at their house physically and making them uncomfortable. You can figure out who the trolls are and call their parents, because that's apparently a thing that actually happened. Or you can be James Woods, completely the worst, and whip out the lawsuits to unmask the troll and then gloat gleefully like a three year old that stole his favorite popsicle when the guy happens to die.

Now, all of those methods for dealing with internet trolls range from mildly annoying to evil (James Woods), but they are obviously not the only options. You could go the Arby's route and simply be awesome and human and have fun with the whole thing. The fast food chain recently decided to have a little fun with its most famous Twitter troll: Nihilist Arby's. Now, if you're not familiar with Nihilist Arby's, it's a Twitter account with 300k followers and daily affirmations that include such advice as:


The entire feed is massively entertaining, but the man behind the account also released the following manifesto when news and advertising groups were trying to figure out who the hell was behind all of this.


Once that video went viral, the countdown clock to unmasking @nihilist_arbys had begun. Arby's, meanwhile, in the midst of being praised for its own hip social media activity in engaging with Jon Stewart when he retired and being cool with Pharrell Williams wearing a hat that was an accidental nod to its own logo, certainly noticed the account. The chain kept tabs on it without ever interacting with it directly or threatening any action against it, when suddenly Nihilist Arby's was unmasked as Brendan Kelly, who worked both in advertising and performed in punk rock bands.

Arby's CEO Paul Brown and his marketing team read the piece.

"We had discussions around what do we do with that? And we said, 'Well, one, even if we wanted to do something, we couldn't,'" Brown told Business Insider. "But we also had a little fun with him, too."

What did that fun amount to? Well, the company flew an executive to Chicago. That executive went to Kelly's place of business and asked security to inform him that Arby's had arrived to see him.

Six days after the Adweek story, Kelly was at FCB's offices in Chicago's John Hancock Center preparing to leave early for a secret job interview he'd landed as a result of that profile. Before he could leave, he got a call around 3:30 from the building's front desk letting him know that a team from Arby's was there to see him.

Christopher Fuller, Arby's senior vice president of communications, was there with several members of Arby's marketing team, a bag full of sandwiches, and a black Labrador puppy they had borrowed from a friend. They greeted Kelly and handed him a handwritten note on Arby's stationery: "Cheer up, buddy. You live in a world with puppies...and sandwiches."

Now, other companies and people should take notice, because this is how it's done. Dealing with trolls is annoying, even trolls as relatively benign as Nihilist Arby's. Still, companies and the people that run them have an understandable amount of pride, and being a tool for what must seem like a never ending joke can be uncomfortable, if not not damned infuriating. To their credit, the folks at Arby's decided to go the fun route instead, with an apparent eye towards just simply being human and awesome.

Brown and his leadership team discussed the Adweek profile. Brown said it could be difficult as a CEO to see your company be the subject of harsh jokes, but that the success of playfully sparring with Stewart earlier that year was a teaching moment.

"Do you write a cease-and-desist letter?" Brown said. "The way I look at it is what kind of person do you want to be a friend with? You don't want to be a friend with that kind of a person who's defensive and you can't joke around."

It's a refreshing attitude to see coming from a company as big as Arby's. Kelly, meanwhile, was super into the interaction and posted it to his own Twitter followers, which likely ingratiated the company to the public even more. Smart business, smart PR, all by being awesome and human instead of freaking out.

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Posted on Techdirt - 27 July 2017 @ 6:27pm

E And J Gallo Sends Cease And Desist Trademark Notice To E And B Beer

from the bullies-be-bullying dept

It's been a refreshing bit of time since we've last written about a silly trademark dispute in the beer and alcohol space, so perhaps you, the dear Techdirt reader, had thought that the complete fuster-cluck that is trademark and alcohol had somehow begun to calm the hell down. Sadly, not so much, it seems. To serve as one reminder, E & J Gallo, maker of wines and spirits and a company that has previously demonstrated its inability to tell different kinds of drinks apart, has sent a cease and desist notice to E & B Beer, a company that makes, you know, beer.

The case pits well known wine and liquor company E and J Gallo against E and B Beer. The owner of Eand B, Santo Landa, says he sees no similarity and feels like this is a case of a big company trying to stomp out the little guy.E and B Beer has been around since the late 1800s in Detroit. It's already been trademarked once before.

Since buying the brand, Landa applied for his own trademark but he's run into a roadblock. An attorney for E and J sent a legal notice saying similarities may cause confusion for customers.

So, let's start with the names of each company. It should be immediately clear that any concern about confusion between the two names is fairly silly. The only similarity between them is the "E and" at the start of each name. Everything else about the names is distinct, from the second initial used to the inclusion of another name (Gallo) and the other mark's description of what the product is (beer). Even if we set aside my personal quest to have the Trademark Office realize that beer, wine, and spirits are all distinct industries and should be treated as such for the purposes of trademark, there's little likelihood of confusion purely from the names of each business. Add to that the logos for each company are beyond distinct and it seems clear that confusion ain't going to be a thing.



None of each company's various iterations of their logos appear to be any more similar than the above. Other than the start of the name and both logos having red in them, there's just nothing there. Certainly not enough to rise to the level of trademark infringement. Which is probably why Landa himself can't figure out what the issue is and sees this as nothing more than a bullying attempt by a larger company.

"I'd like to get an explanation as to what they think is confusion," he says.

The most troubling thing for Landa? He insists he can win a legal fight, but not without big money - money he simply doesn't have.

Now, E and J Gallo apparently offered Landa the rights to keep his name, but only if he limited his sales to 2 states. If you think that's reasonable, you aren't paying attention, because there's nothing remotely like trademark infringement here and there is no reason for Landa to give up his right to sell anywhere at all, never mind limiting himself to 4% of the country's states.

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Posted on Techdirt - 27 July 2017 @ 1:22pm

Court Blocks Wisconsin Augmented Reality Permit Law From Being Enforced

from the augmented-legality dept

You will recall that earlier this year we discussed a lawsuit brought by the makers of a mobile augmented reality game entitled Texas Rope 'Em against the city of Milwaukee over an ordinance it had put in place requiring game developers to obtain a permit to function within the city. Aside from the $1,000 permit fee the ordinance put in place, the requirements to obtain the permit were both odious and laughably non-applicable to the makers of mobile games such as Texas Rope 'Em. Examples of these requirements include plans for garbage collection left by players, plans for on-site security to protect players, and estimates of "crowd sizes." For makers of augmented reality apps, none of these requirements make any sense. When the developer of the game, Candy Lab, cried foul over First Amendment concerns, Milwaukee County replied that the game maker is not entitled to First Amendment rights, arguing that the game wasn't expressive enough to warrant them.

Well, in the opening round of the legal action, Candy Lab is a heavy winner. The court has enjoined the city from enforcing the law until the outcome of the trial, while also including language in the order that makes it fairly clear where the court is going to rule on the First Amendment question.

Plaintiff has a reasonable likelihood of success on the merits of its claims under 28 U.S.C. § 1983 for violation of the First Amendment. Plaintiff will suffer irreparable harm if Defendants are permitted to enforce Section 47.03(3) of the Milwaukee County Code of General Ordinances, adopted in Resolution 16-637.

Now, the trial has been set for next Spring, but fortunately that timeline won't keep Candy Lab from doing its business in Milwaukee with the injunction now in place. Frankly, I'd be somewhat surprised if that trial ever occurs, given the courts clear indication that it sees the law as a First Amendment violation, or at least that Candy Lab is likely to win on the merits of that assertion.

Still, it's troubling that Milwaukee would have tried to put this lab into place to begin with. Frankly, where permitting schemes are often times revenue generators for municipalities, the requirements for the permit in this case seem almost perfectly designed to simply keep augmented reality apps out of the city entirely. Why? It's not like other cities in America, both larger and smaller than Milwaukee, have suffered significant headaches or damage as a result of the now panoply of AR games on the market.

And the claim that an AR game isn't speech-y enough to warrant free speech rights? That's just silly.

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Posted on Techdirt - 27 July 2017 @ 11:55am

Olive Garden Apologizes To Allofgarden.com, Blames IP Enforcement Bot For Legal Threat

from the mea-cappelini dept

You will hopefully recall the recent story we did on Darden, parent company of the Olive Garden restaurant chain, sending a legal threat letter to the man behind allofgarden.com, a site that reviews Olive Garden dishes, because the internet is a strange, strange place. At issues, according to the threat letter, was that allofgarden.com named Olive Garden in metatags in its reviews of the dishes, which you should already know is nothing remotely resembling trademark infringement or infringement upon any other types of intellectual property, either. With that in mind, Vincent Malone replied to the threat letter in a manner both well-informed of his own rights and one which demonstrated just how funny Malone is. After refusing to comply with the requests in the letter, he demanded a reply within nine days in limerick form.

His demands were not met exactly, but Darden has now responded to Malone, apologizing for the letter, promising no further action would be taken against him, blaming an IP enforcement bot for the letter, and sending him a $50 gift card. Sadly, none of this was delivered in the limerick form Malone had requested.


As apologies for this sort of thing go, this one is pretty good. It was apparently in further conversations outside of this letter that Malone was told of the bot, which may well be true but only demonstrates that too many companies play loose with the way they seek to enforce their rights. This story ends on a positive note only because Malone decided not to immediately back down out of fear of a much larger company, after all. It doesn't take too much imagination to suppose that there could be, or perhaps have been, instances we don't know about in which sites simply comply with these unreasonable demands instead of seeking limerick apologies as Malone had.

But if you thought I was going to leave you having read this post without a limerick to read, I can allay those concerns, as Malone himself decided to inform his readers of all of this in poetic form.

As of six thirty-five in the PMs
I've wrapped up my talks with the chieftains
They were misconstrued;
I'm not getting sued
And I needn't write out any ™s

Yes! An official who represents Darden
Has granted me a total pardon
We've reached resolution
I received absolution
For daring to print "olive garden"

The source of the problem was sought
And the sender-offender was caught!
That e-mail was provided
(If you wonder [as I did])
by a prodigious, litigious spam-bot.

My sole issue with Legal's retort
Was the prose of their written report
The demand was specific:
a reply via lim'rick
Well. At least I'm not going to court.

Bravo.

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Posted on Techdirt - 26 July 2017 @ 6:44pm

Titleist Tees Up Lawsuit Against Parody Clothier Because Golf Doesn't Have A Sense Of Humor

from the fore! dept

Back in the more innocent era of the early 2010s, you may recall that we discussed a series of delightful trademark disputes between clothier North Face and a couple of guys who started a business first called South Butt (later changed to Butt Face). In those series of posts, we discussed two conflicting facts: trademark lawsuits against parody operators such as this are extremely hard to win in court... except that those same lawsuits are crazy expensive to fight, so the parody operators typically just cave and settle. It's one of those corners of the law in which the very framework of the legal system virtually ensures that the proper legal conclusion is never reached. Yay.

It seems that North Face's peers in the clothing industry share its disdain for these parody companies. Titleist, for instance, recently filed a trademark and dilution lawsuit against a company called I Made Bogey, suggesting that the following example of its product both will confuse the public as to its origins and will tarnish Titleist's reputation.


Now, if you want to make the point that the hats and other items with this same branding aren't funny, go ahead. I'm right there with you. It's not even particularly clever. That said, it's also not the case that anyone is going to view this stuff as anything other than what it actually is: a parody of the notably poshly-presented golf brand. In fact, the joke only works, insofar as it does at all, if a person realizes that the parody pokes fun at the polite and often Waspy culture of golf. In other words, none of this is a thing were it not easily differentiated from Titleist's brand. For that very reason, attacks on parody like this have a heavy legal load to tow up a large mountain of precedent.

In the suit, Titleist claims both trademark infringement and dilution. For dilution to stick, it must show that I Made Bogey’s hats tarnish Titleist’s reputation or blurs its fame. For trademark infringement, however, Titleist must show that consumers would be confused by the two logos. “They would have to show that people would think Titleist is making hats” with the sexually explicit misspelling, said Tobin, the attorney. And that would be pretty difficult, she said.

And, yet, despite all of that, conventional wisdom suggests that this will all be settled out of court before the lawsuit progresses much further. The cost to fight this fight is likely to be too much for I Made Bogey to shoulder.

That doesn’t mean I Made Bogey is necessarily going to prevail, though. Trademark suits are expensive to defend, and there’s no guarantee the maker of Titties hats will come out on top. If you want a lewd golf hat, act sooner rather than later.

And, whatever your opinion of I Made Bogey's products, that's too bad. Taste is not really at issue when it comes to protecting parody, an important form of speech. Defenders of free speech need to be able to keep their spines when opportunities to defend speech they don't like arise. This is certainly one of those times. Abusing trademark law and playing pretend about public confusion to silence offensive speech is an action without any virtue.

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Posted on Techdirt - 26 July 2017 @ 9:32am

Teenager Reports Laughable Flaw In Budapest Transit Authority's Ticketing System And Is Promptly Arrested

from the that's-just-mean dept

For some reason, this keeps happening and I will never understand why. For years, we have covered incidents where security researchers benignly report security flaws in the technology used by companies and governments, doing what can be characterized as a service to both the public and those entities providing the flawed tools, only to find themselves threatened, bullied, detained, or otherwise dicked with as a result. It's an incredibly frustrating trend to witness, with law enforcement groups and companies that should want to know about these flaws instead shooting the messenger in what tends to look like a fit of embarrassment.

And so the trend continues, with a teenager in Hungary being arrested after pointing out a flaw in the ticketing website for the group that acts as the Budapest public transportation authority, the BKK.

The young man discovered that he could access BKK's website, press F12 to enter the browser's developer tools mode, and modify the page's source code to alter a ticket's price. Because there was no client or server-side validation put in place, the BKK system accepted the operation and issued a ticket at a smaller price. As a demo, the young man says he bought a ticket initially priced at 9459 Hungarian forints ($35) for 50 Hungarian forints (20 US cents).

The teenager — who didn't want his name revealed — reported the issue to BKK, but the organization chose to contact the police and file a complaint, accusing the young man of hacking their systems. Police arrested the teenager in the middle of the night shortly after, even if the young man didn't live in Budapest, nor did he ever use the fraudulently obtained ticket.

Teenager discovers flaw, reports it directly to the group affected by that flaw, and subsequently gets arrested? And not only that, actually, as the BKK then held a press conference essentially to brag about the arrest before stomping its metaphorical feet and declaring that its systems were now "secure." Shortly after the press conference, an outraged internet did its thing and all of the sudden all kinds of security flaws in BKK sites began to emerge from Twitter users. On top of that, the IT company BKK contracted to put all of this "security" in place had itself sponsored "ethical hacking" contests in the past. If there is a more ethical version of hacking than finding exploits in public systems and reporting them immediately, I'm having trouble thinking of what that could possibly be.

Meanwhile, the Hungarian public got immediately pissed.

In the meantime, tens of thousands of Hungarians have shown their solidarity and support for the teenager by going on Facebook and leaving one-star reviews on BKK's page. While initially, reviews came from Hungarians, international users started leaving their own thoughts on BKK's page after the incident become a trending topic on Reddit.

"You should partner with better companies managing the security and reliability of your online purchase systems! Shame on you BKK!," said one user.

I would say this was something of a Streisand Effect except that much of it was kicked off by BKK's boasting press conference, so unless it is attempting to Streisand itself, this is more along the lines of an agency simply being as dickish as it possibly could after receiving what should have been deemed a gift from a security researcher and now getting slapped around publicly for it. All, mind you, while new security exploits are exposed by an angry internet.

Great job all around, guys.

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Posted on Techdirt - 25 July 2017 @ 6:31pm

Winnipeg Man Has Vanity Plate Referencing Star Trek Recalled Over Complaints Of How Racist It Is

from the resistance-is-futile dept

Here in North America, because 2016 just had to become the most infuriatingly stupid and polarizing year in the history of the multiverse, far too much oxygen was spent on debates over both how much racism was okay on one side and exactly what qualified as racist on the other. It's one of those frustrating contests with nobody to root for, as half of the population proclaimed that racism was dead and everyone was too stuck up about it while the other side managed to find racism everywhere, introducing into the popular lexicon terms like "privilege" that mostly make me want to put my head in a vice and get to rotating that lever.

Still, this isn't a debate that should be totally ignored. After all, at its heart is the matter of free speech, not just as a legal framework but also as an ideal that the West tends to claim to hold in high regard. Strangely, one of the beacons of this debate shall now be on the subject of vanity license plates, with a heavy dash of nerd culture thrown in just to make it extra fun. For this story, we go to Winnipeg, where a Star Trek fan received the following vanity plate for his car.


The plate, owned by the unfortunately named Nick Troller, will be instantly recognizable to Star Trek fans, particularly those of us that go back to The Next Generation. The Borg was an alien race that assimilated other races into its hive-mind whatsit and traveled around in big grey cubes, because, you know, aliens. They often communicated such witticisms as "Resistance is futile" and "You will be assimilated." I imagine to those that are not fans of the series, the vanity plate would probably register as a curiosity. For some in Canada, apparently, it was a racist mantra.

If you've existed at all in the modern day political climate you'll understand how some people who are—rightfully—sensitive to the rise of normalized racism, saw Troller's plate as problematic. Seeing the plate as a problem some people complained and Manitoba Public Insurance (MPI) told Troller he had to get rid of it. Troller has since relented to the pressure and gotten rid of the plate for one that says "COLECTV"—the plate still has the bracket sporting the "resistance is futile" saying.

Now, in this hyper-partisan time where everyone is either a racist or an SJW and we all hate each other with the burning passion of eight pissed off suns, it's no wonder that Troller's license plate has become an issue and that people on both sides have seized upon it. The Justice Centre for Constitutional Freedoms, which is known for taking people to court for denying anti-abortion activists a voice and other free speech issues, now—after advocating for Troller initially—may be taking the case to court.

Ok, let's just get this out of the way. The license plate isn't remotely racist and anyone apologizing for some people freaking out and complaining of its racism should stop. Stop and never do that again. For those of us that care about combating actual racism, these hypersensitive offense-magnets are getting in our way and impeding progress, acting as an example for some why real racism is dead. It's lame and it isn't to be apologized away.

But it's also worth noting that something like a vanity plate is plainly a form of speech and having a government strip a citizen of that speech simply because other people are wrong about that speech is flatly insane. Particularly when you have to work really, really hard to convince yourself that the license plate above is racist, and when the acceptable alternative -- "COLECTV" -- I could easily argue is racist as well were I so inclined. Collecting? Collecting whom, you racist! See?

We can all certainly have an argument over what the current levels of racism are and how they impact our culture or not, but it should be plain that this was a clear case of a government overstepping its bounds.

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Posted on Techdirt - 25 July 2017 @ 11:56am

Terrible Ruling Allows Untied To Keep Its Domain But Not Its Soul

from the pointless-generosity dept

Let's jump back in the wayback machine for a moment and discuss Untied, your primary source for customer and employee complaints about United Airlines. When we last wrote about the site in 2012, we first mentioned that Untied.com has been a thing since 1997 before detailing the lawsuit United Airlines filed in Canada after it found that Untied.com had redesigned its parody site to look more like United.com.

Untied, if you are not aware, is a site that started with a single person's complaint about United Airlines customer service before morphing into an aggregator of such complaints from both customers and internal airline staff and former staff. If you want a bible to be written on what United has done wrong in the realm of customer service, you need not worry because Untied.com is that bible. Had this suit been filed in America, it would face a mountain of caselaw suggesting that so-called "sucks sites" are well within the boundaries of protected nominative fair use. It's worth mentioning that Untied doesn't actively attempt to mislead visitors to the site into thinking it's affiliated with the airline. In fact, visitors are shown a popup upon visiting that alerts them to Untied's status as a parody site. Even a cursory glance at the site's contents would confirm that status, as the entire site is dedicated to taking a metaphorical dump on United Airlines' reputation.

Despite the site having existed for so long, and despite the fact that the Streisand Effect exists, United Airlines filed its lawsuit, bringing all manner of attention to Untied that it otherwise would not have had, even as the airline is and has been maligned in nearly every corner of the internet for its laughable attempts at customer service. In its filing, United Airlines insisted that Untied had infringed its trademark rights and copyright rights with the site. It requested an injunction against the site before suggesting that just to make sure the injunction was clear, maybe the court ought to just hand the site over to United Airlines to boot.

"If the Court finds in favour of United Airlines and determines that an injunction should issue, the injunction needs to be clearly understood by the parties, and in particular the Defendant. As such, the Court may need to consider ordering the Defendant to transfer ownership of the domain name and other internet presences to ensure the injunction is clear and will be respected."

Well, the court has ruled on the injunction. The good news is that the court declined to hand over the Untied.com domain to the airline. The bad news is that court does rule that the site is infringing both United's copyright and trademark rights and instead said Untied can only keep its name if it ceases to be Untied at all.

The Plaintiff is entitled to an injunction restraining the Defendant’s use of the United Marks and the copyrighted works. The Court retains jurisdiction over this matter to provide effective relief against the Defendant. The Defendant may retain the use of the domain name www.untied.com – however, this must not be in association with the same services as provided by the Plaintiff.

As the folks who run Untied explain, the entire argument that United Airlines made in this action is that it too provides consumer feedback and complaint services for its own business, which is why it declared the public would be confused by the site. Effectively, this ruling allows Untied to keep its domain, but only if it ceases to be Untied.

Keeping in mind the position argued by United, that one of its "services" is dealing with passenger complaints, this would mean that the injunction would prevent Untied.com from existing as a site hosting passenger complaints against United. I feel that I have no choice but to bring this decision to the Federal Court of Appeal. Even if the wheels of justice are stacked against me as a self-represented litigant, defending myself against a massive corporation with virtually unlimited resources, I don't want to throw in the towel in defeat.

It's nice to see someone want to fight this out, but the focus here also needs to be on what an absolutely atrocious ruling this is from the court. Parody is to be protected on matters of copyright, whereas trademark law is focused on real or potential customer confusion within the marketplace. Again, this suit was filed in Canada, so the exact American standard for fair use doesn't apply, but no serious examination of the Untied.com website would lead to the conclusion that confusion was any issue, only strengthening the stance that the parody status of the site ought to protect it from the copyright claim. To, in the face of all that, first rule otherwise and then make this meaningless concession only adds insult to injury. For United to spend half a decade doing battle with a site that echoes many others' disdain for United's customer service in the name of trying to censor that site makes zero sense from a purely business perspective.

Perhaps, rather than spending half a decade fighting a website about customer service complaints, United Airlines could have spent that time and money providing better customer service and not dragging paying passengers off their airplanes.

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