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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 - 5 February 2016 @ 3:43pm

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

from the eh? dept

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

from the game-theory dept

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

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

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

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

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

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

from the ink-blot-test dept

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

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

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

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

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

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

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

Hasbro Sued For Font Piracy On My Little Pony Merchandise

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

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

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

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

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

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

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

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

from the yuge dept

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

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

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

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

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

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

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

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

from the that-won't-work dept

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

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

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

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

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

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

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

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

from the swing-and-a-miss dept

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

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

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

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

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

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

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

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

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

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

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


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

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

from the food-for-thought dept

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

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

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

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

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

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

from the still-a-problem dept

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Posted on Techdirt - 22 January 2016 @ 3:30am

How The UK's Counter-Terrorism And Security Act Has Made Law Enforcement Into The Literal Grammar Police

from the if-you-sea-something-say-something dept

We've already talked a couple of times about the intersection with the UK's disastrous Counter-Terrorism and Security Act and its intersection with the country's educational system. As part of its effort to weed out terrorists, the UK tasked teachers with keeping a watchful eye on their students to try to identify those that would be radicalized in the future, a concept that sounds like something out of Airstrip One rather than England. Shortly thereafter it was discovered that a software package that teachers had been given to help with this was exploitable in the typically laughable ways. But the tech isn't the only shortfall here. As one would expect when you take a group of people whose profession has in absolutely no way prepared them to act as counter-terrorism psychologists and ask them to be just that, it turns out that the human intelligence portion of this insane equation is off by several integers as well.

Remember a time when someone would harp on you for something you'd written on the internet with spelling or syntax errors? Remember what you called those people? I call them grammar police. It turns out that the UK actually has grammar police.

A simple spelling mistake has led to a 10-year-old Muslim boy being interviewed by British police over suspected links to terrorism. The boy, who lives in Accrington in Lancashire, wrote in his primary school English class that he lived in a “terrorist house”. He meant to write “terraced house”.

His teachers did not realise it was a spelling error and instead reported the boy to the police, in accordance with the 2015 Counter-Terrorism and Security Act, which states that teachers are obliged to alert the authorities to any suspected terrorist behaviour. As a result, the child was interviewed on 7 December by police and the authorities examined a laptop found at his family home.
So, a situation that could have been resolved in thirty seconds with a conversation between the young man and his teacher instead devolved into police activity, with authorities actually traveling to the boy's terraced house to look at a laptop at what they thought might be a terrorist's house. This would be funny if it weren't so frustratingly sad. Keep in mind that this spelling mistake occurred in the child's English class. So, in other words, the very teacher tasked with teaching the boy how to spell properly involved the police in that boy's life because he wasn't spelling properly. One imagines that, assuming this is allowed to continue, the country had better make sure it has only the best and the brightest teaching children how to spell the native language, or else the police can expect to be quite busy.
A cousin of the boy, who has not been named to protect his identity, said his relatives initially thought it was a joke, but that the boy had been traumatised by the experience.

“You can imagine it happening to a 30-year-old man, but not to a young child,” she told the BBC. “If the teacher had any concerns it should have been about his spelling. They shouldn’t be putting a child through this. He’s now scared of writing, using his imagination.”
Let freedom ring, I guess. The freedom from having to think in a common sense manner, at least, as teachers under this law are incentivized into this kind of over-reaction. Putting any class of citizen under this kind of microscope is abhorrent in and of itself, but to do this to children? I had hoped the West was better than this, but now I'm not so sure.

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Posted on Techdirt - 21 January 2016 @ 2:57pm

Call Of Duty Again Sued Over Another Historical Figure... Who Is A Good Guy In The Game

from the call-of-litigation dept

You may recall that Activision's Call of Duty games have already been the subject of a lawsuit by a historical figure. Previously, notorious figure Manuel Noriega brought a publicity rights case against the game company in the United States, claiming that the game depicted him without his permission. Pretty much everyone agreed that Activision was on solid First Amendment grounds in depicting a historical figure, including Rudy Giuliani, who galloped in to represent Activision and quickly got the case summarily dismissed.

You may have thought that would be the end of all that silliness, but you'd be wrong. Over in France, the family of an Angolan rebel also depicted in the CoD franchise is filing a defamation suit against Activision. Note that the defamation laws in France allow for a more liberal application than in the States, and that France doesn't have the same strict concept of Free Speech that we have here.

The family of Jonas Savimbi, an Angolan rebel fighter, says Call of Duty: Black Ops II portrays him negatively—specifically, as a “barbarian” and “a big halfwit who wants to kill everybody,” according to the family’s lawyer Carole Enfert. They’re seeking one million euro in damages from the French arm of the video game publisher. The Guardian reports that France has very strict anti-defamation laws, even in cases where the allegedly defamed individual is dead—so his family may have a case. Savimbi was killed by the Angolan government in 2002.
So there are a couple of wrinkles that make this case different than the Noriega suit. First, as noted, Savimbi is dead. Very dead. And, while he most certainly is a notable historical figure, he doesn't have Noriega's dastardly reputation. Instead, Savimbi is best known for pushing out Portuguese colonialism in Angola and subsequently leading the fight against the MPLA, which is generally considered to be a genocidal group that had aimed at taking power in the country. Included in his reputation, however, is a firm unwillingness to engage in offered peace talks, choosing instead to continue a bloody civil war from which his nation still hasn't recovered.

But it's the final difference that makes this case so baffling: Savimbi is portrayed as a "good guy" in the game. The player is actually tasked with fighting alongside him. See the video below for yourself, with Savimbi's appearance coming in around the six minute mark, and judge for yourself whether you think he's portrayed in a negative way (note: this is a violent video game and the footage below includes some of that violence).

None of which is to say that any of this should even matter. Savimbi is a long-dead historical figure and artistic endeavors ought to have full freedom to portray him in the context of his place in history. That's what the game attempts to do. That the family's suit misses the mark in characterizing his portrayal as outlandishly negative in the context of the rest of the game is telling as far as their motives are concerned, but should be ultimately besides the point.

After all, if free expression is to mean anything at all, certainly it must allow for the discussion and portrayal of historical figures.

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Posted on Techdirt - 20 January 2016 @ 2:03pm

Sony On A Rampage Trademarking Common Terms: Attempted Registrations For 'Let's Play' And 'VRPG'

from the common-sense dept

It's no secret that Sony has never been shy about wielding trademark like a cudgel. That said, there seems to be something new brewing with the company in its recent attempts to trademark fairly common terms, worrying some that it would use those trademarks in the same heavy-handed way. The first of those attempts was the recent Sony filing for a trademark on the term "Let's Play", which any gamer will recognize as the term for popular YouTube videos showing games being played, often offered by well-known YouTube personalities. While the USPTO had already refused the trademark on the grounds that a prior mark for "Let'z Play" had already been registered, a law firm that specializes in gaming law jumped in to try and have the court instead declare that "Let's Play" is now a generic term.

In a blog post from the McArthur law firm, the company explained that in its letter to the USPTO it offered up fifty examples of how ‘Let’s Play’ has become a generic term. The most important part of this is that the letter needs to be taken into consideration before awarding a trademark. Sony does have time to respond to the US Patent and Trademark Office’s initial concerns with its trademark application. However, now the office also has evidence from a third-party showing why Sony shouldn’t be handed ownership of the term ‘Let’s Play’.
It would be difficult to imagine an argument against the notion that "Let's Play" is now a well-known generic term, given its widespread use by online personalities. More interesting is the attempt itself, in that Sony is certainly well aware of the term's status and use, yet it decided to try to lock up the term via trademark anyway, specifically for the uses in which it's currently employed. That isn't what trademark is for, of course, and it would be insane to see the USPTO award the mark and allow the possibility for an insane number of trademark actions based on Let's Play videos tied to advertising revenue. Blech.

But that attempt dovetails nicely with another attempted registration of a trademark by Sony, as the company has recently applied for a mark on the term "VRPG."
Filed by Sony Computer Entertainment Japan (SCEJ) back in December, the trademark filing was listed online by the Japanese Patent and Trademark Office. The document is entirely in Japanese but DualShockers states that the filing is Class 9 (which is used for games) and “includes pretty much all the standard definition for game trademarks.” Unfortunately, there’s little else to go on, but one popular theory from fans is that VRPG actually stands for Virtual Role-Playing Game and relates to a new PlayStation VR game.
It's not clear yet that this is what "VRPG" stands for, but if it is, it will provide a wonderful litmus test for exactly how sane the USPTO is, because awarding that mark would be crazy. RPG is, of course, a standard term in gaming circles, making the application essentially all about the "V", another common abbreviation for all things virtual reality. Virtual reality is itself becoming a household term in gaming circles, with the renewed interest in VR headsets such as the Oculus Rift. Allowing Sony to own a mark on a term that describes what may shortly become an entire genre of the gaming industry is tantamount to a language monopoly that, far from serving the interests of the consuming public, instead serves only to carve out very commonly used terms for sole use by certain corporate interests.

This, as in the previous case, is simply not the aim of trademark provisions. There's nothing source identifying in a mark that essentially declares a product to be a virtual reality role-playing game. That's entirely too broad. So place your bets on exactly how sane the folks at the USPTO will be.

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Posted on Techdirt - 15 January 2016 @ 7:39pm

Facebook Nixes Picture Of Bronze Mermaid Statue For Showing Too Much 'Skin'

from the no-skin-in-the-game dept

As they say, with great power comes great responsibility. Facebook, being a dominant force in the social media industry, certainly has a great deal of power, but how does it do in the responsibility department. It's an important question, because as a platform essentially designed to facilitate speech and expression, it would seem necessary to treat with care how it collides with that speech when controversy arises. Unfortunately, we've seen time and time again how Facebook treats the question bureaucratically rather than with any kind of nuance. Between bending the knee to national interests, promising to censor speech deemed to be hateful, or just flat out hiding behind a wall of corporate speak in order to take down photos, the trend for Facebook is one of grip-tightening rather than free expression.

And so the trend continues, being helpfully highlighted by an instance in which a Danish public official has a photo of a bronze statue removed for showing too much body.

Social Democrat MP Mette Gjerskov wanted to post a link to her blog, which included a shot of the bronze statue, when she received a rejection notification from the site, the Ekstra Bladet website reports. The message, which Ms Gjerskov shared on her social media accounts, said the Little Mermaid image contained "too much bare skin or sexual undertones". It added that the rules applied even if an image had "artistic or educational purposes".
Here is the Little Mermaid statue in question.

If you find that image arousing, you are in severe need of psychological care. The idea of a bronze piece of art showing too much skin is the kind of ridiculousness you can only get from bureaucracy, even in the private sector. Rules built to stifle speech that cast wide nets will always, always, always catch too much non-offending speech to be worth the policy.

Now, Facebook eventually agreed after complaints were sent in, citing a policy clarification from last year.

Ms Gjerskov described the decision as "totally ridiculous", although in a later update she said Facebook had subsequently relented and approved the image. In March 2015, the site clarified its rules on nudity and said that it does allow photos of paintings, sculptures and other art that depicts nude figures.
Except this doesn't really solve the issue. Instead, it transfers the dilemma to the question of exactly who are the arbiters of what constitutes artistic expression which should be allowed under the policy. One person's art may be another's pornography, after all. And, while the solution probably can't be a completely limitless allowance of all kinds of nudity in every case, it seems clear that any policy currently entrapping bronze statues of mermaids is probably off by a matter of multiples.

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Posted on Techdirt - 15 January 2016 @ 3:33pm

Lego Reverses Policy On Block Orders For Political Projects After Public Shaming

from the blockheads dept

Late last year, we relayed the story of Ai Weiwei, an artist who had previously used Legos to create political art in the form of portraits, being refused a bulk order of Lego blocks by the company. At issue was a long-standing company policy prohibiting its facilitation of blocks being used for political speech. As a result of Weiwei going public about the refusal, the story was Streisanded into the public consciousness, resulting in condemnation and shaming from more of the masses than would have ever been aware of the project otherwise.

And, in a classic example of how the Streisand Effect often culminates, Lego is now reversing course -- not only regarding Weiwei's project, but it's nixing the entire policy.

On Tuesday, Lego announced that it would no longer ask what the "thematic purpose" of a project is. Instead, customers who intend to display their creations in public will be asked to make clear that Lego does not support or endorse them.

Asked whether it was in response to Ai's case, the toy-maker said it had been asked whether it supports human rights and freedom of expression. In an email, spokesman Roar Rude Trangbaek wrote: "We always have and continue to do — this is at the heart of what Lego play is all about. ... We hope the new guidelines will make it more clear what we stand for."
It would have been too much to hope for to expect Lego to come out and flat out admit the policy it had previously adopted was simply wrong on a moral level. Still, this is a lesson in the power of public shaming, particularly in an era where the internet has fostered wider connections than had been possible previously. Would Lego have revised its policy if Weiwei's story had not gone viral? I think we know the answer to that question, given that this isn't the first time the question over Legos being used in political artwork has come up, but is the first time the policy has been revised.

Oddly, after Lego had initially refused Weiwei's order, he turned to a Chinese competitor instead. This was done as many speculated that Lego had taken its actions in order to appease the Chinese government, as Weiwei is a Chinese dissident.
The Melbourne exhibition, which opened in December, was to feature 20 portraits of Australian pro-freedom figures made from Lego bricks. Instead, it used similar bricks from a Chinese company, Ai said.

"I couldn't tell much difference and the price is much, much lower," he added.
And now the Streisand Effect has multiplied to include the greater exposure of a Lego competitor. Perhaps that's the reason for the policy change.

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Posted on Techdirt - 15 January 2016 @ 8:35am

God v. Copyright: Mike Huckabee Invokes Religion In Copyright Suit

from the holy-fair-use,-batman dept

Strap in, folks, because we've got quite a battle brewing. You may recall that Mike Huckabee recently found himself the subject of a copyright dispute with Frank Sullivan, a member of Survivor, over the use of the band's hit song Eye of the Tiger at a rally for the release of Kim Davis. Davis was the county clerk who asserted that her right to express her religion -- in the form of denying same sex couples the right to marry -- overrode the secular law of the land, which is about as bad a misunderstanding of how our secular government works as can be imagined. Sullivan's filing indicated that the rally was conducted by the Huckabee campaign and that the use of the song had been without permission, therefore it was an infringing use. Left out of the filing was any indication of whether the Huckabee campaign had acquired the normal performance licenses.

Based on Huckabee's response, it seems like no license was ever obtained, as Huckabee is instead claiming the use was fair use, and that the use was exempt from copyright law to begin with because the Kim Davis rally was a religious assembly.

The fair use claims are pretty simple, though I'm not sure they're particularly likely to succeed. Huckabee claims the use was non-commercial (relating back to the nature of the rally as a religious gathering), that the amount of the work he used was non-substantial (something like a quarter of the entire recorded song was used), and argues that the effect of it being played was essentially one of free advertising for the band, and so there was no harm done in the marketplace. We've seen those affirmative defenses raised in the past, with varying degrees of success, but this doesn't ring as a case where the copyright holder is reaching as far as in other cases we've covered.

And, ultimately, part of Huckabee's fair use defense - in particular that the use was non-commercial and, as Huckabee goes even further to state, had nothing to do with election campaign -- relies on the notion that the Kim Davis rally was an independent religious gathering, not any kind of campaign stop.

His campaign also invokes a rarely used limitation to a copyright owner's rights — one that exempts "performances of a nondramatic literary or musical work ... in the course of services at a place of worship or other religious assembly."
From the filing itself:
Notwithstanding the provisions of 17 U.S.C. § 106, 17 U.S.C. § 110 (3) provides in part that the performance of a nondramatic literary or musical work in the course of services at a place of worship “or other religious assembly” is not an infringement of copyright. Although not explicitly defined in the Copyright Act of 1976, the term “nondramatic musical works” refers to musical works, such as popular songs, not incorporated and performed in an opera or theater musical. Based on the averments of paragraph 7 of the Complaint, “Eye of the Tiger” is a popular song and a “nondramatic musical work” within the meaning of 17 U.S.C. § 110 (3).

The September 8, 2015, assembly for Mrs. Davis was, in view of all the surrounding circumstances, a “religious assembly” within the meaning of 17 U.S.C. § 110 (3) and the First Amendment to the Constitution of the United States.
Drink it in. The claim is a stunning one, where Huckabee, ostensibly a man who holds faith and religion in high regard, is suddenly willing to degrade the concept of a religious gathering simply to support his use of a popular song at a rally for someone he supports. One wonders exactly how the claim might work, what with the wide swath of gatherers at the rally, located outside the jailhouse for a secular government, on public land, and attended ostensibly by enough people that it strains credulity to even imagine that they might all be from one church or one faith. Nowhere is it asserted that anyone was referring to the Kim Davis rally as a religious gathering before this filing.

But think of the possibilities if the court buys this argument. Suddenly, loosely-defined religious grounds can be asserted as an affirmative defense to copyright infringement. The very idea of public performance licensing largely goes out the window, as one can imagine all kinds of gatherings suddenly proclaiming religiosity. Keep in mind that our government is not permitted to distinguish between the faiths, so any faith would do. Hell, one enterprising Techdirt writer such as myself might take up the mantle of L. Ron Hubbard and simply whip up a religion out of whole cloth, calling it the Fairusenalists, replacing the prayer rug, the eucharist, or the kippah with loudly-blasted recordings of Justin Bieber. Were Huckabee's argument to be accepted, who could stop us?

That said, I doubt it will be accepted, largely because Huckabee's claims that his campaign had nothing to do with the rally are blatant lies, given the attendance by his campaign staffers and the blatant promotion of the rally on the Huckabee campaign site. Still, the thought is tantalizing, to say the least...

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Posted on Techdirt - 14 January 2016 @ 11:23pm

Feds Confirm Cardinals Accessed Astros System With Old Password, File Unauthorized Access Charges

from the the-cardinal-way dept

Sports fans in the city of St. Louis are having a rough go of it lately. Fresh on the heels of losing their football team to Los Angeles, now we are learning that the federal government has charged former Cardinals scouting director Christopher Correa with unauthorized access into the Houston Astros computer systems. While some had speculated that the government would go after the Cardinals under the Economic Espionage Act, it's beginning to look like our original assumption that the CFAA would be the tool the government would wield has been proven correct. Also appearing to be correct were reports that the "hacking" that took place in this instance was of the less hack-y variety and more of the let's-try-the-guy's-old-password-y.

Correa illegally accessed the Astros' computers in the following way: In December 2011, as Victim A prepared to leave the St. Louis Cardinals and join the Houston Astros, he was directed to turn over his Cardinals-owned laptop to Correa -- along with the laptop's password. When Victim A joined the Astros, he re-used a similar (albeit obscure) password for his Astros' email and Ground Control accounts. No later than March 2013, Correa began accessing Victim A's Ground Control and Astros' email accounts using this variation of the password to Victim A's Cardinals laptop.
Note that Victim A is Jeff Luhnow, now Astros General Manager and former Cardinals employee, while Ground Control is the name for the Astros' player scouting database. As far as competitive information goes, this is the treasure chest for any baseball team. At the court hearing, Correa entered a plea of guilty, claiming that he only accessed the Astros' systems because he believed that propietary information from the Cardinals' club had been taken first. Correa followed that up by admitting that such reasoning was "stupid."

And indeed it is stupid, given the penalties that can be assessed for his crime.
The parties agreed that Correa masked his identity, his location and the type of device that he used, and that the total intended loss for all of the intrusions is approximately $1.7 million.

Each conviction of unauthorized access of a protected computer carries a maximum possible sentence of five years in federal prison and a possible $250,000 fine.
Given the plea deal, and the fact that Correa isn't a young man pushing back at the government in trying to change the world, I expect that the jail time will be minimal if any. Which is probably unfortunate, because as far as CFAA cases go, this is one where actual crimes have been committed.

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