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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 - 29 September 2020 @ 7:36pm

Bill Murray Responds To Doobie Bros. Copyright Letter With Snark, No Offer To Pay For Use Of Song

from the listen-to-the-musicians dept

It's true that you don't often find us here siding with copyright holders in debates over copyright. It's not that there isn't a place for that sort of thing, of course. It's just kinda not our beat. Also, it's a bit of a dog-bites-man kind of thing. As folks who tend to think that ever-expanding copyright laws and a protectionist culture that has lost its way are bad for business, we typically focus more on artists who are doing exciting things in new business models, artists who are overstepping the purpose of copyright law and/or hurting their own causes through protectionism, and artists who choose to go the human and awesome route rather than pulling out the litigious nuclear bombs.

In fact, we tried to do just that when we discussed the Doobie Brothers sending famed comedian Bill Murray a rather funny and human-sounding letter about his use of their music in ads for his golf apparel company. The letter was constructed to make it clear that Murray should have paid for the use of the music, but also was chock full of one-liner zingers, self-deprecation, and a general treatment of copyright law as not the world's most serious thing. It was a good copyright letter, which is rare.

Well, Murray's legal team has responded. And it seems that they are going all in on the humor part of this exchange, while claiming that Murray's use of the music is fine because the band hasn't been harmed.

If you can't read the whole thing, the response letter is full of puns based on the Doobie Brother's song catalogue. It includes an offer to send some free Murray golf swag to the band. It throws in a reference to the fact that the band's legal team was involved in defending Robin Thicke in the "Blurred Lines" case. And it argues, based in part on that association, that the Doobie Brothers haven't been harmed and so no payment will be forthcoming.

I am sure that Howard King of your firm, who argued that the song "Blurred Lines" did not infringe on Marvin Gaye's composition "Got To Give It Up", would agree that your client was not harmed under these circumstances.

This, frankly, is a bad legal position to take. The two circumstances are nothing alike. Murray is using music from the band in an advertisement. The "Blurred Lines" case was all about minute details of how much of a song's "feel" could be copyrighted -- not the music itself, in terms of the copyrightable expression of a song, but, rather, its style.

What Murray could have done would be to respect the band's congeniality in order to work out an arrangement with minimal impact on his company. The Doobie Brothers' initial letter, with all of its lack of serious threat, seemed to indicate the band would be open to that sort of thing. But to simply use the song in an advertisement and claim no harm, therefore no copyright infringement, seems like a stretch.

In other words, I would advise Murray's legal team try to get back in touch with the band and come up with a real offer to work this out.

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Posted on Techdirt - 28 September 2020 @ 8:23pm

BrewDog's 'Elvis Juice' Now An Approved Trademark In The UK, But Not the EU

from the ain't-nothin'-but-a-brewdog dept

You will hopefully recall that a few years back we discussed a trademark dispute between BrewDog, a UK-based brewery, and the Elvis Presley estate. At issue was BrewDog's grapefruit IPA dubbed "Elvis Juice" and the trademark application BrewDog had filed for it. Somehow, on first review, the UK IPO managed to side with the Presley estate, despite the fact that Elvis is a common first name, that the trade dress for the brew had nothing to do with Elvis Presley, and that this was all occurring in a country where Elvis Presley might not even be the most famous singing Elvis on the market. Fortunately, BrewDog appealed and won, so Elvis Juice is a registered trademark in the UK.

But not the European Union. Side note: did you guys know that the UK stupidly got out of the EU? Crazy! Anywho, BrewDog also had an application to trademark Elvis Juice in the EU. The Elvis Presley estate also opposed that trademark. And, this time, the Presley estate won.

The craft brewing company, based in Ellon, had won the right to register the brand as a trademark in the UK in 2018. However, they have been denied exclusive rights to the name in Europe – potentially threatening sales on the continent.

Unlike its UK counterpart, the EU bought the Presley estate's line that throughout Europe people buying an IPA called Elvis Juice would somehow think it was associated with a crooner from the American 50s as opposed to, say, Elvis Costello. Or the two Elvises that legally changed their name to Elvis that also own BrewDog. How that makes any sense, or how anyone is making this connection in, for instance, Spain is beyond me.

In the case documents, the EU Intellectual Property Office ruled: “It is clear that the applicant’s submission based on the peaceful coexistence of the marks cannot succeed. No evidence actually demonstrating such peaceful existence on the pertinent market has been shown. In short…there exists a likelihood of confusion… A likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application.”

I mean, if this were two years ago, when the UK IPO decision came down, the UK would have been part of that pertinent market. And that should have been all that was needed to side with BrewDog. This, somehow, went the other way.

And, as a result, it's an open question as to whether BrewDog will keep its Elvis Juice branding as a whole, given the EU decision. Meanwhile, the EU IPO also ordered the brewery to pay the Presley estate costs.

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Posted on Techdirt - 25 September 2020 @ 12:05pm

How To Be Funny And Not A Jerk In A Cease And Desist Notice, From The Doobie Brothers

from the zero-bucks-given dept

I've written about famed classic rock band The Doobie Brothers before. As a person who is very much a fan of the band's music, I was rather disappointed when they decided to go after a cover band, The Doobie Decimal System, over trademark infringement. Their argument was that the names would confuse the public as it is too similar to their own band's name and if you aren't already laughing out loud by now you most certainly should be. The legal team for the band went with some fairly standard messaging as well, rather than taking a softer approach.

Unlike, say, how The Doobie Brothers have decided to handle a copyright C&D with comedian Bill Murray.

Let's assume for the moment that the claims in the letter as to Murray's unauthorized use of the band's music are accurate. I have yet to see any response at all from Murray's side, never mind one that refutes the claim that he used The Doobie Brothers' music without a license. Because what should really standout in this C&D is how congenial and funny it comes across, rather than dropping legal nukes at every turn like so many other C&Ds.

In case you cannot read it, it includes lines such as:

The Doobie Brothers perform and recorded the song 'Listen To The Music', which Tom Johnston of the Doobie Brothers wrote. It's a fine song. I know you agree because you keep using it in ads for your Zero Hucks Given golf shirts. However, given that you haven't paid to use it, maybe you should change the company name to 'Zero Bucks Given'.

Not bad. But it gets better.

It seems like the only person who uses our clients' music without permission more than you do is Donald Trump.

Ooooh, topical comedy! It's like a Lewis Black bit! What else?

This is the part where I'm supposed to cite the United States Copyright Act, excoriate you for not complying with some subparagraph that I'm too lazy to look up and threaten you with eternal damnation for doing so. But you already earned that with those Garfield movies...

We'd almost be OK with it if the shirts weren't so damn ugly.

Self-deprecation coupled with witty barbs on a famed comedian for what were some truly awful career choices? Five stars all around!

In addition to being a funny example of a topic we cover here all the time, the real lesson in this is that just because there are legal rights at play doesn't mean you can't have some fun. Witty C&Ds like this, with a little basic human decency thrown in rather than explosive legal threats, are far too rare. Handling matters in this way are publicly endearing and, I imagine, likely to get a more positive response from the target of the letter than nuclear threats. Nicely done!

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Posted on Techdirt - 24 September 2020 @ 7:58pm

Woof: Jack Daniels Takes Fight Over Doggy Chew Toy To The Supreme Court

from the squeak-squeak dept

Back in April, we wrote about a trademark dispute between Jack Daniels and VIP Products LLC. At issue was a doggy chew toy made as clear parody of the Jack Daniels bottle, with the branding changed to "Bad Spaniels", along with other parody references. While Jack Daniels had initially won in court when VIP sought declaratory judgement that its use was non-infringing, upon appeal to the U.S. Court of Appeals for the 9th District, that decision was reversed. Key to that ruling was the court's assessment that, due to the parody nature of the product, it was an "expressive work", and the lower court ought to therefore have applied the Rogers test, and vacated an injunction the lower court had applied.

Accordingly, the court held that, as a threshold matter, the Rogers test needed to be applied. Under that test, a trademark infringement plaintiff must show that the defendant’s use of the mark either (1) is “not artistically relevant to the underlying work” or (2) “explicitly misleads consumers as to the source or content of the work.”  Id. at 9 (quoting Gordon, 909 F.3d at 265). The Ninth Circuit vacated the district court’s finding of infringement and remanded for a determination, in the first instance, of whether Jack Daniel’s can satisfy either element of the Rogers test.

But instead of proceeding along those lines, it seems that Jack Daniels instead wants to have a fight at the U.S. Supreme Court over whether a parody dog chew toy truly is expressive. The appeal takes particular umbrage at the lower court's sense of humor.

Because the court of appeals thought [VIP Products’] notorious copying was funny, it held that the company has a First Amendment interest in confusing consumers into believing that Jack Daniel’s sponsors a dog toy spotlighting poop.

The more serious aspects of the filing focus on just where and how Fair Use can be applied in trademark law.

The Lanham Act provides that certain categories of use “shall not be actionable” as dilution. One excluded category is “[a]ny fair use . . . other than as a designation of source for the person’s own goods or services.” 15 U.S.C. § 1125(c)(3)(A) (emphasis added). The Act identifies parody as a permitted fair use, but it excludes the parodist from liability only so long as the parodist does not use a trademark as its own designation of source. Id. § 1125(c)(3)(A)(ii). The Ninth Circuit did not apply that exclusion here, presumably because it had no basis to reverse the district court’s conclusion that VIP Products used Jack Daniel’s trademarks as a designation of source.

Which is one hell of a presumption. What the court actually did, instead, is recognize the product as parody, deem it expressive because of that, and then indicated that the use of any trade dress or marks therefore didn't act as a source identifier. In other words, the lower court indicated that this ought to be a fight over customer confusion rather than how closely the parody's branding compared with the subject of that parody.

Which is exactly the correct arena for this to be fought in. Because of the clear parody nature of the product, the proper question is will the public be confused into thinking it was buying a product that has any actual association with Jack Daniels. That Jack Daniels doesn't want to have this fight on those grounds should tell you everything you need know.

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Posted on Techdirt - 23 September 2020 @ 8:06pm

Company Owning 'Evel Knievel' Rights Sues Disney Over 'Toy Story 4' Amalgam Parody Character

from the caboom dept

Evel Knievel, it seems, is as litigious in death as he was in life. The famed motorcycle stuntman found his way into our pages previously, having mistaken common modern parlance for defamation and for once suing AOL of all companies because its search engine could be used to get to a Kanye West video. And, while Knievel passed away in 2007, the lawsuits keep coming.

A company called K&K Promotions has sued Disney over the depiction of a character in Toy Story 4.

If the "Toy Story 4" character Duke Caboom reminded you of Evel Knievel, you're not alone -- the folks in charge of his image and likeness thought so too ... and now they're suing.

A company called K&K Promotions just filed suit against Disney, Pixar and whole a bunch of their subsidiaries ... claiming the stuntman driver toy that Keanu Reeves voiced in the latest 'Toy Story' flick is a clear and obvious rip-off of the legendary American motorcycle daredevil.

The suit itself (embedded below) goes into Evel's life story, details the rights K&K has to his trademarks and likeness, reminds the court that an Evel Knievel motorcycle toy was created decades ago, and culminates in asserting that Disney's character has infringed on those trademark and likeness rights. There is also the assertion that Disney asked the film's cast members not to compare characters to the trademarks of others' when doing media hits.

Below is some footage of Duke Caboom from the film.

Now, let's get the easy stuff out of the way. Does Duke Caboom conjure to the mind the memory of Evel Knievel? Yes, it most certainly does! Have folks from Disney actually said that Knievel was part of the inspiration behind the character? As the lawsuit itself points out: uh huh! Producers Mark Nielsen and Jonas Rivera have indicated that the stuntmen from the 70s were absolutely the inspiring force behind Caboom, with the latter going so far as to state that the character was built as "a stuntman evocative of Evel Knievel's era."

So does that make this character infringing on K&K's trademark and likeness rights?

Well, no, probably not. After all, there are marked differences between the characters, such as the country of their origin, the exact makeup of their outfits, what their personages look like in appearance, and so on. It's also worth highlighting the "era" in the Rivera quote, because Evel Knievel was merely the most famous of a series of motorcycle stuntmen in the 70s and 80s. And those stuntmen often had similar routines, motorcycles, and outfits. Dale Buggins is an example of this.

In fact, this all brings to mind Lindsay Lohan's attempt to sue over a Grand Theft Auto character, in that the character was actually an amalgam of tropes for famous Hollywood celebrities. She lost her case for that reason. Here, too, we have a character that is not specifically an Evel Knievel character, but rather an amalgam of motorcycle stuntmen tropes of which Knievel is the most famous. The assertion that Disney asked cast members to avoid getting the company in trouble by invoking the specific names of inspirational forces isn't all that surprising either. Why would the company want to get sued over a cast member's otherwise innocent comment, after all?

This could be a money grab, I suppose. But if it is, you really have to wonder if it's the smartest play. Disney's character, after all, probably caused a great many people to remember the era of motorcycle stuntmen for the first time in a long time, with Knievel coming along for the ride. Why not simply try to capitalize off of that?

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Posted on Techdirt - 22 September 2020 @ 7:46pm

How To Nuke Your Reputation: The Nikola Edition

from the going-downhill dept

This isn't so much in vogue as it was in the past, but it still remains true that one's reputation is a scarce resource that can be frittered away easily. And, on these pages at least, it is often equal parts perplexing and funny to watch some folks in the tech space torpedo their own reputations for various reasons. The more shrewd don't always seem to care about this sort of thing, which is how you get the MPAA pirating clips from Google to make its videos, or a law school taking a critic to court only to have the court declare said critic's critique was totally true. Good times.

Which brings us to Trevor Milton, the founder of Nikola Motor Company. Nikola is playing in the electric truck vehicle space. In 2016, Milton announced in an official video that the Nikola One Semi was "fully functional." In fact, one of Milton's chief public concerns at the time was ensuring that nobody could come by and drive away with one of the trucks. The companion video for the Nikola One was posted to YouTube in January of 2018. This video shows the Nikola One chugging down a lonely one-lane road.

Despite all of the fanfare, it's worth noting that the Nikola One never made it into production. Why? Well...

Hindenburg Research published a bombshell report claiming that the Nikola One wasn't close to being fully functional in December 2016. Indeed, Hindenburg published a 2017 text message exchange in which a Nikola employee stated that the company didn't resume work on the truck in the months after the show.

Even more incredible, Hindenburg reported that the truck in the "Nikola One in motion" video wasn't moving under its own power. Rather, Nikola had towed the truck to the top of a shallow hill and let it roll down. The company allegedly tilted the camera to make it look like the truck was traveling under its own power on a level roadway.

Now, on the one hand, that's objectively funny. It's sort of an Adam West's Batman approach to product demonstration. But, on the other hand, now that Milton has admitted the charges above, he's likely in a whole world of trouble. The company has tried to weasel out of this in fairly absurd fashion.

"Nikola never stated its truck was driving under its own propulsion in the video," Nikola wrote. "Nikola described this third-party video on the Company’s social media as 'In Motion.' It was never described as 'under its own propulsion' or 'powertrain driven.' Nikola investors who invested during this period, in which the Company was privately held, knew the technical capability of the Nikola One at the time of their investment."

Not everyone seems to think that's true. The SEC and DOJ are reported to have opened investigations into the company's behavior after these revelations. And, as to the point of Milton's reputation personally, he's out at Nikola.

Milton's resignation came just 10 days after a bombshell research report revealed that Milton wasn't telling the truth in 2016 when he unveiled the company's first product, the Nikola One, and claimed that it "fully functions."  Over the weekend, Milton offered (voluntarily, he says) to resign as executive chairman, and Nikola's board accepted his offer. Milton will also relinquish his seat on Nikola's board.

Now, a few items of note. First, Nikola does now have a functioning prototype, the Nikola Two. It's also partnering with several automobile companies and has contracts in place with them.

But for Milton, he loses his position at the company he founded, millions in stock and consulting fees, and has gained infamy as someone who is willing to, at best, mislead the public about his companies' products. Your reputation is a scarce good. Frittering it away by turning the camera on an angle probably isn't the best move.

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Posted on Techdirt - 18 September 2020 @ 7:39pm

Ubisoft Bows To Monster Energy To Rename An Upcoming Game Horribly

from the scared-of-the-monster dept

Veteran Techdirt readers will have been so tempered by stories about Monster Energy playing the trademark bully at this point that the mere mention of the company should cause them to roll their eyes. Still, the history of what we've covered in the Monster's attempt to win the trademark-protectionist championship are still constructive in one very important way: Monster Energy regularly loses these disputes. That in itself shouldn't be terribly surprising; the company's decisions on just how often to enforce the trademark rights it has are often so absurd that it would be a shock if it put together any sort of real winning streak. But what is surprising is when victims of Monster's bullying choose to actually concede to the bullying, given that losing track record.

But it happens, even when the victim is a large enough entity that it could fight if it wanted to. A recent example of this is how Ubisoft changed the name of an upcoming video game after Monster Energy opposed its trademark application for it.

Ubisoft's Gods & Monsters recently underwent some rebranding, switching its name to the demonstrably-worse Immortals Fenyx Rising a few weeks ago. It has gone over like a lead balloon. In fact, it had our team wondering if we should just refuse the new name and stick with the old one!

As uncovered by TechRaptor, Monster Energy opposed Ubisoft's trademark for the title "Gods & Monsters." The logic goes that Monster has enough of a presence within video games that Ubisoft's use could reasonably cause confusion among consumers.

Logic which runs counter to the purpose of trademark law, to how trademark law actually works in terms of market designations, as well as to good business and marketing. Taking those in reverse order: the name change is almost objectively terrible. I have yet to find any publication that thinks the title switch was even a wash for Ubisoft, never mind beneficial. The universal opinion seems to be, and I agree with it, that Ubisoft to one extent or another participated in a bit of self-harm by this rebranding.

Now, on to the actual legal question. The consensus here too seems to be that Ubisoft could have easily have won this battle on the merits, but didn't want to simply to avoid any delay stemming from a legal battle.

Playing armchair attorney, this seems like something Ubisoft probably could've won, no? My guess is that it has less to do with whether or not Ubisoft cared to spend the money on this legal battle, and more to do with just getting the game out on shelves. Immortals has been delayed already, and its sales factor into Ubisoft's fiscal year that ends in March 2021. Fighting a protracted trademark infringement case would further delay the game. Going ahead with the name Gods & Monsters would result in an injunction. Ubisoft may be in the right, but it doesn't have the time to prove it.

Which is all probably true, but only if Ubisoft couldn't have gotten a declaratory judgement when Monster Energy first opposed the trademark application. Because it is quite clear that there is no infringement here. Whatever participation Monster Energy has in the video game space, most of which is mere sponsorship and advertising, it still isn't a maker of video games. Ubisoft should have needed merely to point that out to get its use declared legit. Couple that with the broader question as to whether literally anyone would make the association between a video game called Gods & Monsters and an energy drink company and I would guess getting a court to side with it would have been fairly easy for Ubisoft.

But Ubisoft decided against that route and bowed to Monster Energy's bullying. Which is how we get Immortals Fenyx Rising instead of Gods & Monsters. An objectively worse name. For no reason, other than trademark bullying.


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Posted on Techdirt - 17 September 2020 @ 7:30pm

Twitch Experiments With Intrusive Ads That Piss Off Its Most Important Asset, Its Talent

from the twitch-ain't-tv dept

As any internet platform matures, the growth it undergoes will inevitably lead to experimenting with revenue models. For a healthy chunk of the internet, advertising plays some role in those experiments. And, like anything else, there are good experiments and bad experiments.

But I am very much struggling to understand who in the hell at Twitch thought that breaking away from live streams to force viewers to watch commercials, all without the control or input of Twitch streamers, could possibly be a good idea.

“Beginning in September, as part of an ad experiment, some viewers may begin to notice that they are receiving ads during streams that others in a channel aren’t receiving,” the company wrote on its website. “Like pre-rolls, these are ads triggered by Twitch, not by the creator.”

Crucially, these ads utilize Twitch’s “picture-by-picture” functionality, which basically means that the stream you’re watching pops out into a smaller window while the ad rolls in the main window. However, ads will still steal the show from some viewers, with streamers none the wiser as to who can hear what they’re saying (picture-by-picture mutes streams) and, therefore, understand what’s happening on stream while ads are playing.

If this reads as though Twitch were trying to turn its platform into some flavor of broadcast television, where the content is broken away from in the service of displaying advertising, that's because that's exactly what this is. Which doesn't make any sense. Twitch is not television. Sure, some streamers choose to break away from their own content for advertising. In fact, doing so staves off this new process of forced breakaways. But many streamers don't do that. For a viewer to be torn away from the content that continues on, muted, all while they're forced to view ads, would be stupid on its own. To give streamers not only almost zero control over whether this happens, but also zero visibility into when and to whom it's happening, can only serve to piss everyone off.

Which is exactly what it did.

“You’re not YouTube,” said Twitch partner ThatBronzeGirl on Twitter in response to Twitch’s announcement. “When ads play in the middle of the stream, viewers actively miss out on content (muted or not). Add this to the fact that viewers are hit with an ad as soon as they enter a stream, so channel surfing is cumbersome. Idk why y’all hate viewer retention.”

“This means either one of two things happens: 1) I schedule a break in the stream to have control over ads running that are proven to drive viewers away. 2) Viewers get an ad randomly that is all but guaranteed to drive them away. Which of those is for us though?” said variety streamer Deejay Knight.

“If I don’t play enough ads, Jeff Bezos literally comes to my stream and pushes the ad button, what do I do,” said former Overwatch pro Seagull.

Let's be clear, Twitch is a thing because of the talent that chooses to use it. It's bad enough to put a new advertising model in place that pisses off viewers. But piss the talent off and they'll simply go somewhere else, particularly when the viewers voice their frustration by removing their eyeballs. Some of this seems to also be Twitch not understanding that the platform is no longer video game let's-plays. The content is wide and varied and much of it cannot function with this sort of intrusive advertising.

“A streamer could be talking about suicide prevention, and up pops an ad,” said Scottish Twitch partner Limmy. “Depending on the implementation, the streamer would either be unaware, which is bad, or the streamer has to announce a forced ad break at an inappropriate time.”

“We’re not all Overwatch and Fortnite,” said dungeon master MontyGlu. “In narrative streams such as DnD live shows and RPG game streams, 10-30 seconds removed could completely deprive people of story, context and investment.”

As the Kotaku post notes, part of the problem here is that all the monetary incentives for streamers compared with the platform are horribly misaligned. Many streamers make most of their money through subscriptions and brand partnerships. The money they get from Twitch is mostly an afterthought. Twitch, on the other hand, makes gobs of money from advertisements. It's a scenario in which the platform is incentivized by advertising while the talent is very specifically incentivized by a lack of advertising. More ads drive eyeballs away, which means less lucrative partnerships and subscriptions.

If Twitch wants to push more ads, it desperately needs to get the streamers on board.

“While I’m not allowed to say specifics, Twitch has the worst CPM ad-revenue share to creators with their standard contracts (read: not the big shots with custom negotiated rates),” said Minecraft YouTuber and Twitch streamer KurtJMac. “They want ads to run because they make bank. Pay a fair rate to creators and we’d be glad to run ads!”

Somewhat amazingly, Twitch has stated that it isn't backing down. The experiment will run its course, the company said, and it will review the data afterwards. I simply can't imagine that said data will show that intrusive ads that everyone hates are good for the company.

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Posted on Techdirt - 16 September 2020 @ 7:55pm

EA To Rebrand Its Origin Platform As It Bows Out Of The PC Gaming Platform Wars

from the white-flag dept

It has been a long and largely fruitless road for Origin, EA's PC gaming client that it had planned on building into a rival of Valve's Steam. What was originally supposed to have been the chief antagonist to Steam in the ongoing PC gaming platform wars instead is best described as a failure to launch. Released in 2011, Origin began life as it lived in total: the walled garden for most EA games. Critics appeared almost immediately, stemming from odious requirements to relinquish personal information, the use of DRM, and security flaws. Couple that with a game library that was relatively stilted compared with Steam, by design mind you, and it's not difficult to understand why the adoption numbers for the game client just never took off.

Several weeks ago, to the surprise of many, EA suddenly released its gaming catalog on Steam. Given the long history of the company keeping its toys for itself, it left many scratching their heads in confusion. This week, the inevitable occurred, with EA announcing that Origin will be no more. Instead, the PC gaming client will rebrand, rebuild, and become an optional place for EA gamers to play, rather than a Fort Knox for EA games.

EA has yet another piece of interconnected news to share: it's rebranding its Origin desktop app to simply be called the EA desktop app, alongside giving its PC platform a visual refresh.

Speaking to GamesIndustry.biz, EA SVP, strategic growth Mike Blank says the overhaul is intended "to create a more frictionless, fast, socially-oriented experience for our players, where it becomes the best place for them to connect with the people they want to play with in the games they want to play."

I'm frankly not used to giving EA a ton of kudos in these pages, but the overall strategy is a good one. The company appears to have finally realized that being permissive with gamers that just want to play the company's games is better business than trying to lock them into a failed client few want to use. The revamping of the UX was long needed, too, but the real star of the show here is that EA is looking to be more open in general.

"All of that is signaled by creating a common and consistent brand that is centered around EA and what EA stands for," Blank says. "And what signals it is this inflection about how EA stands for bringing your players together around the games they want to play on the platforms they want to play on. So yeah, it's not just a name change. It really signals an ethos that is critically important to us and that we know that's important to our players.

It's been a long journey for EA in this regard to where our games show up and where they don't. One of the things that we value is democratizing gaming, which is: how do you enable more people to play? And how do you make it easy for them to do so? And by bringing our games to Steam, we are doing just that. So whether we were there in the past or not, I look towards the future. And what I think today is that we are stronger and healthier. And I think we're responding more effectively to the needs of our players today than we ever have, and Steam is part of that journey."

Again, this is EA we're talking about, so it's going to take more than just the right words to convince most of us that this truly is a new direction for the company. Still, these are the right words. EA has long built a reputation for itself as being anti-consumer in many ways, but all of those ways come down to one thing: control. For a company with that history to suddenly start giving up that control, not out of surrender but out of a belief that it's good business, is a positive step.

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Posted on Techdirt - 15 September 2020 @ 7:31pm

How Not To Be A School District Superintendent: The Elmhurst, IL Edition

from the learning-opportunity dept

It should serve as no surprise that school district superintendents are not somehow universally amazing people. Like any population, there will be good ones and bad ones. All of that being said, it seems that the COVID-19 pandemic has been particularly good at highlighting just how bad at the job, not to mention at public relations, some superintendents can be. The most useful example of this came from Georgia, where a school district suspended, then un-suspended, students for posting pictures of just how badly their schools were failing at managing bringing students back during the pandemic.

But a more recent example comes to us from -- checks notes -- huh, my hometown of Elmhurst, Illinois. Dave Moyer, the superintendent for the Elmhurst public schools, kicked up a local shit-storm for himself a couple of weeks ago when he decided to have an exchange with a revered teacher in his district over the use of masks by teachers.

Last week, District 205 technology teacher Jennifer Leban tweeted, "Maybe I'm in the minority here, but I feel like parents would much rather have teachers talking to students via Zoom WITHOUT masks on instead of WITH... Seems like an obvious choice?"

Moyer responded, "Then take your mask off."

But Leban, a 2020 Illinois Teacher of the Year finalist, said she does not have her own room, so state regulations bar her from taking off her mask.

For context, while new case counts have been dropping across much of the country, the same is not true for the Midwest. Here in Illinois specifically, new cases have been on the rise since July, including a breathtaking day mere weeks after Moyer's suggestion that a teacher remove her mask where the state saw nearly six thousand new cases get reported. Leban, by the way, is immunocompromised, making Moyer's suggestion that she simply remove her mask all the more idiotic. She presented the district with a doctor's note that recommended she get a remote placement, for which there are some slots in the district, but that request was denied without explanation.

Others, of course, saw the Twitter exchange as well.

In the Twitter discussion, Kim Gwizdala, an English teacher from Glenbard West High School, said it was "absolutely wild to me that your own superintendent would suggest a thing when it is in direct violation with health guidelines and science."

Moyer took exception to that comment.

"Excuse me. The attorneys have indicated that the interpretation from the State is as follows: Teachers can take their mask off when they are in their rooms by themselves facilitating remote learning. Get your facts straight before you pontificate."

To Leban, he wrote, "Your entire media center isn't good enough? OK then."

Shortly after that, for reasons that should be obvious, Moyer deleted several of those tweets. No public apology came, however. Also, as parents began jumping into the conversation, Moyer chose to block them on Twitter, even though his account is that of the school district's website, not a personal account. It's worth noting here that the courts recently ruled that Donald Trump, as a public official, could not block the public from his official account because his control over the account and his status as a public official made that specific space a public forum. Why Moyer's account, tied to the district's website, should be any different is anyone's guess.

In a Twitter discussion last week about an Elmhurst teacher's position on masks, Alicia Duell, the director of technology and information services at Wheeling School District 21, said Moyer blocked her from his Twitter account. An Elmhurst resident, Duell noted Moyer was the superintendent of her children's school district.

Meanwhile, an Elmhurst resident emailed Patch over the weekend that she, too, had been banned from the superintendent's account.

Which brings us to the present, where the public has taken notice of Moyer's behavior at a recent board meeting and is voicing their complaints.

Last Monday, a number of written comments were read during the public comment portion of the meeting, including those critical of Moyer. Eileen Espinosa, a local resident who once served on a school council in Chicago, said she has "extended grace" to Moyer during the pandemic, but could no longer remain silent.

"His utter lack of leadership is overwhelming and you're ignoring it is no longer acceptable," Espinosa said to the board in her comments. "Dr. Moyer's inability to send communications that help the community to come together in the spring and throughout the summer and into the school year are a repeated reminder that he does not lead our district. He continues to air his grievances and personal opinions on social media."

There are more, as well. The ultimate lesson here is in just how badly Moyer handled this at every step. One-liners to immunocompromised teachers advising them to take of their masks against both state regulations and common sense is an obvious misstep. Doubling down with sarcasm and snark when called on it, all the more so. Deleting those tweets and thinking this would all go away, rather than simply apologizing, put this on the tee at the Streisand National Open. Going on a parent-Twitter-blocking spree to try to stifle dissent hit the ball right in the middle of the fairway. And the refusal to publicly comment to date on the matter made the Streisand crowd go wild.

When asked for comment about his deleted tweets late last month, Moyer did not directly answer. In an email, he said his public messages should be interpreted as seeking "a balance between safety for all and creating the healthiest learning environment for students. It is time for all of us to move beyond the negativity and keep the focus where it belongs."

Right now the focus may just be on whether Moyer is the best person to be leading a school district during a pandemic in a state that is suffering under a surge of the virus.

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Posted on Techdirt - 14 September 2020 @ 8:20pm

Craft Brewing Trade Mag Argues Beer Is The Most IP Product Ever, Ignores History Of The Industry

from the calling-all-lawyers dept

And now, we shall talk about one of life's great pleasures: beer. This nectar of the gods has been something of a focus of mine, particularly given the explosion of the craft brewing industry and how that explosion has created an ever-increasing trademark apocalypse over the past decade. It is important context for the purposes of this post that you understand that the craft brewing industry, before it exploded but was steadily growing, had for years operated under a congenial and fraternal practice when it came to all things intellectual property. Everything from relaxed attitudes on trademarks, to an artistic bent when it came to beer labels, up to and including the regular willingness of industry rivals to regularly collaborate on specific concoctions: this was the basic theme of the industry up until the past decade or so. It was, frankly, one of the things that made craft beer so popular and fun.

With big business, however, came corporatized mentalities. Suddenly, once small craft breweries doubled in size or more. Legal teams were hired and there was a rush to trademark all kinds of creative names. The label art, once the fun hallmark of the industry, became a wing of the marketing department. This is how, now in 2020, you get trade publications like Craft Brewing Business arguing that beer is one of the most all-encompassing products when it comes to intellectual property.

To be fair, given the current climate, you can see some of the logic in the following:

Beer aficionados worldwide can easily describe the nuances of pilsners, IPAs, milkstouts, and lagers. More hazy is the fact that beer is a product that touches upon nearly every type of intellectual property. Indeed, the names of breweries and beers are subject to trademark; label art and packaging are works of authorship covered by copyright law; and hops—that critical component of a beer’s aroma and flavor—can be patented.

It's a fair point, certainly. Though, left entirely unsaid in the entire post is whether any of this is a good thing. Instead, the post goes on to explore in some detail just how all things IP can be applied to brewers' products. Even when it gets absurd, the post hand-waives away any concerns. We'll start with the patenting of hop varieties.

The short answer to this seemingly straightforward query is the plant patent. By statute in the United States, whoever:

” invents or discovers and asexually reproduces any distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings, . . . may obtain a patent therefor. . . .”

Hops can be among these new plant varietals, and as part of the bargain for inventing a novel strain, brewing innovators release their work into the public domain after 20 years. But until that two-decade window closes, the creator and owner of a plant patent gets to cash in exclusively on the agricultural brainchild.

A couple of things here. First, the idea that mild differences in varieties of particular plants should get patents doesn't strike me as a great thing. And, given the longstanding practice of patent-extending by making minor tweaks to the biology of the plants and then re-patenting them, I can't imagine why the craft beer industry, once rife with creative brews, would want any of this protectionism.

Second, as the post mentions, though barely, patent holders for even some of the most well-known hop varieties regularly fail to hold up their end of the patent deal with the public.

Of note, if a patent owner does not adequately teach the world (translation: the public domain) about the plant at issue and how to make it upon the patent’s expiration, the patent’s owner—by effectively keeping the invention secret and taking advantage of the 20-year monopoly bestowed by patent law—has not kept up its side of the bargain. This unfortunately seems to be the case with respect to the Citra hops patent, which does not offer much in the way of substantive direction for replication of this varietal, meaning it may not be enabled and, therefore, subject to challenge.


When it comes to trademarks, the post does a decent job of articulating how trademarks are chiefly meant to avoid customer confusion. While true, the industry survived for decades without putting any real emphasis on trademarks. That seems worth mentioning. Instead, the post goes on to use an absolutely awful example of trademarks being used to protect an industry brand.

To be clear, marketplace confusion is what trademarks are meant to prevent. That being said, if a shopper strolls down a grocery aisle, peruses the beer selection, and confuses a bottle of Stone IPA with and a Keystone Light by virtue of packaging—and advertisement—encouraging drinkers to “grab a Stone,” Molson Coors Beverage Company (owner of the Keystone brand) may be infringing upon Stone IPA’s trademark. If this scenario sounds familiar, that is because this very dispute between Stone Brewing and Molson Coors is scheduled for an October trial in federal court.

Here again we have errors of omission. While Stone is indeed in a fight with Molson Coors as described above, the article fails to point out that Stone Brewing, in service of getting a huge judgement in this court case, has turned on a ton of other craft breweries with which they used to coexist peacefully, and has started bullying them with its trademarks as well. And, what's more, Stone went on to piss and moan when the wider public thought it was behaving like bullying dickheads in all of this. This seems like exactly the sort of thing craft breweries could learn from, yet it's all totally absent from the post.

And, while the post goes on to ignore the question of copyright in label art, the most glaring absence of information has to do with the history of the industry. Again, this is an industry that exploded before everyone decided to have corporatized legal firms challenging every trademark application that's even close to infringement. If there is a lesson in the last decade for the craft beer industry, it's that it should have striven really hard to retain its roots when it became big business.

And the real shame of it is that new brewers reading trade magazines like Craft Brewing Business may not know, and now won't learn, of those far better times.

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Posted on Techdirt - 11 September 2020 @ 7:39pm

The Next Generation Of Video Game Consoles Could Be The Beginning Of GameStop's Death

from the stop-discing-around dept

Predictions about the death of video game retailer GameStop have been with us for at least a decade. There have been many reasons for such predictions, ranging from the emergence of digital downloaded games gobbling up market share to declines in retail stores generally. But there are two recent new headwinds that might frankly be the end of this once ubiquitous franchise as we know it.

The first headwind is one common to all kinds of retailers currently: the COVID-19 pandemic. The pandemic is actually almost certainly worse for GameStop compared with retailers for other industries. As noted above, sales for the industry have long been trending towards digital downloads. Yes, there are still those out there who insist on buying physical media games, and in many cases there are good reasons for doing so, but the truth is that market was shrinking steadily for a long, long time. With the pandemic both shuttering many retail stores and keeping scared consumers out of those that remain open, the digital market share in the gaming industry has grown quickly. Whether anyone will want to go back to buying physical copies of games, new or used, is an open question.

All of which might not ultimately matter, as the other headwind is the next generation of consoles being released with options for no built in disc drive at all.

The latest quarterly earnings report from GameStop doesn't show much sign of a turnaround for the long-troubled game retailer. Sales were down 26.7 percent year over year for the April through June quarter. Even accounting for permanent store closures and COVID-related reduced operating hours, so-called comparable "same-store" sales were still down 12.7 percent year over year. GameStop's already depressed stock is down nearly 8 percent on the news, as of this writing.

GameStop still publicly sees an "opportunity to capitalize" on the upcoming release of new Sony and Microsoft consoles, which could help turn its business around in the short term. But there's some reason to believe the coming generation of consoles could actually make GameStop's long-term prospects worse, thanks to console options that get rid of disc drives entirely.

During a recent earnings call, CEO George Sherman tried to spin this in the opposite direction, pointing out that the new consoles include an option for a disc drive as a reason for optimism. A huge chunk of GameStop's money is made reselling used games that are marked up considerably. If the best a cheerleader for the company can muster is pointing out that, at least for this generation, some of the consoles will still have drives... well, that isn't great.

Especially when you put this all in context. Both Microsoft's Xbox and Sony's PlayStation forthcoming consoles have options for discless devices that are priced significantly less than the alternative. That represents yet another reason why some gamers, who might not have gone all digital otherwise, will be jumping ship. Between the virus pushing more gamers to download games digitally, lower priced consoles in the middle of an economic downturn, and the general trends that pre-date the pandemic, the analogies some are drawing to GameStop's future aren't pretty.

Sherman confirmed in the earnings call that GameStop will sell these disc-drive-free consoles in its stores, a move akin to a world where Tower Records decided to sell iPods as its physical album sales cratered.


Now, none of this suggests that every gamer everywhere is ready to give up discs. Nor should this be taken to indicate that retail game stores are going to become fully extinct. In fact, I don't think the Tower Records analogy is the best that can be drawn, even if we stay in the music space. Instead, it is beginning to feel inevitable that GameStop, or other companies, will be become like modern day record stores: there to cater to the niche market of those that want CDs and vinyl, with all of the nostalgia that's as important for buyers as the product itself.

But it sure as hell won't be the GameStop of the last two decades.

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Posted on Techdirt - 10 September 2020 @ 8:19pm

AB InBev And Patagonia Trademark Dispute Will Proceed To Trial

from the busch-league dept

A little over a year ago, we discussed a lawsuit brought by Patagonia, famed West Coast clothier for all things outdoor lifestyle, against AB/InBev, famed macro-brewer. At issue was AB/InBev's decision to sell a Patagonia-branded beer line at pop up stores at ski resorts, the exact place where Patagonia clothing is quite popular. Within those stores, AB/InBev also sold Patagonia-branded clothing. Coupled with the beer maker's decision to do absolutely nothing with its "Patagonia" trademark for six years, you can see why Patagonia sought to invalidate AB/InBev's trademark. It's also understandable that the court ruled against AB/InBev's attempt to have the suit tossed last summer, with the absurd claim that the Patagonia brand for clothing isn't actually well-known at all. In the meantime, Patagonia asserted in filings that AB/InBev actually defrauded the USPTO when it got its trademark in the first place.

Which brings us to the present, where the beer maker attempted to get at least some of the claims against it dismissed, arguing that the claims about defrauding the USPTO were simple clerical errors and that Patagonia had failed to protect its mark for too long. The court ruled in favor of Patagonia, meaning this will now go to trial. We'll start with the claims of Patagonia failing to protect its mark, which center around AB/InBev's registration for trademark indicating the company had been using "Patagonia" continually for five years.

Argentinian brewer Warsteiner Importers Agency Inc. first filed the intent-to-use application for a Patagonia beer trademark in 2006, based on its intent to sell its beer in the U.S., the court said. It filed several extension requests, including one in 2011 that said it still intended to use the mark, but didn’t intend to import its beer. Anheuser-Busch asked it to file one more extension and then bought the application in March 2012. It filed a statement of use, claiming it began using the trademark in July 2012 and received the trademark registration later that year.

Patagonia learned of the trademark in 2013 but believed that Anheuser-Busch had legitimate rights, according to the opinion. But shortly after the beermaker launched Patagonia beer at a pop-up stores at ski resorts in 2019, with the beer and promotional apparel featuring a mountain logo that allegedly infringed Patagonia’s trademarks, Patagonia sued.

In other words, the company picked up on a long-delayed application by another beer maker, bought the application rights to the trademark, and then claimed it had been using the mark for five years, which it had not. When Patagonia learned of the application, it thought AB/InBev's application was legit, but learned after the pop-up stores began selling clothing that it was not. Patagonia, to add to all of this, sells some beer under its mark as well. Trademark law includes "anti-trafficking" rules that prevent companies from buying applications like this prior to the mark in question actually being used in commerce. The rules for this are complicated, but the claims Patagonia is making as to how AB/InBev tried to get around these rules most certainly are not.

Patagoina also argued that the beermaker fraudulently had Warsteiner change the date on the document assigning the trademark to suggest compliance with the anti-trafficking rule. Anheuser Busch said the change was to correct an error.

The court rejected Anheuser-Busch’s bid for a judgment that its Patagonia trademark had become incontestable, finding it hadn’t been used continuously for five years as required. Incontestable marks can only be challenged if they became generic, abandoned for nonuse, or acquired by fraud.

Anheuser- Busch also still faces allegations of fraud through its alleged violation of the anti-trafficking rule and false claims of continuous use.

In addition to all of the above, the court also decided that the branding AB/InBev decided to use was similar enough that a jury should decide if there was true trademark infringement here.

What should perhaps be most striking in all of this is just how callous AB/InBev appears to be when it comes to the trademark rights of others, especially compared with how protective and expansionist the company is of its own trademarks. It is quite silly to expect virtue and consistency from a multi-national corporation, of course, but the hypocrisy is still quite glaring.

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Posted on Techdirt - 9 September 2020 @ 8:03pm

Esports Milestone: Guild Esports Looks For London Stock Exchange Listing

from the prospecting dept

For years now, we've covered various milestones the esports industry has hit as it has exploded in popularity. Once relegated primarily to a few overseas markets, the past decade has seen an acceleration of the industry hitting the mainstream, from features in sports media on participants, college scholarships for esports, IRL leagues getting in the game, and even the betting markets opening up to esports gambling. While this trend began long before the world's current predicament, it's also true that the COVID-19 pandemic, which shuttered live sports for months, acted as a supercharger for all of this.

All of which contributed to the latest milestone the esports industry has managed to hit, as famed footballer David Beckham's Guild Esports franchise has announced it plans to get listed on the London Stock Exchange.

Guild Esports, a UK-based owner and developer of esports teams, confirmed plans for an initial public offering in a statement Wednesday. The company said it wants to build a global sports franchise modeled on the English Premier League, NBA and NFL. It will float 40% of its shares next month and hopes to raise £20 million ($25.9 million) to recruit new players and invest in the business.

Beckham, a former Manchester United and England footballer, will use his global influence and following to support the Guild Esports brand, the company added. Beckham is also co-owner of Inter Miami CF, a Major League Soccer team in the United States.

The CNN post goes on to note that ad revenue in the industry for 2019 was just under a billion dollars. The point in all of this is that the difference between a beloved hobby and professional sports is the "professional" part. In other words, money. Now that esports has not only emerged as a major force in competition when it comes to ad revenues and eyeballs, but also now a place for potential owners of sporting franchises to invest very real money, the only question is just how popular and dominant esports will grow to become.

Based on the company's plans, it has some very lofty goals.

The company plans to recruit up to 20 esports players by the end of next year, modeling player training and scouting on the talent academies pioneered by Premier League football teams.

The last milestone is probably one we're hurtling toward at speed: when the maturity of the esports industry is so accepted that these posts on Techdirt no longer make sense to write.

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Posted on Techdirt - 8 September 2020 @ 7:47pm

Game Creator Has His YouTube Video Of Game Demonetized Over Soundtrack He Also Created

from the on-the-money dept

Content moderation, whether over social or intellectual property issues, is impossible to do well. It just is. The scale of content platforms means that automated systems have to do most of this work and those automated systems are always completely rife with avenues for error and abuse. While this goes for takedowns and copyright strikes, it is also the case for demonetization practices for the big players like YouTube.

But how bad are these systems, really? Well, take, for instance, the case of a man who created a video game, and the soundtrack for that game, having his YouTube videos of the game demonetized due to copyright.

Doki Doki Literature Club creator Dan Salvato is being demonetized for his own music on YouTube because the platform claims the soundtrack included in his videos - which he himself composed - is "someone else's content."

Salvato took to Twitter in order to share his grievances. Apparently, his videos have been subjected to demonetization for several months due to purported copyright infringement for the music he used in them - however, Salvato himself composed all of said music, meaning that YouTube is claiming that he is essentially stealing his own intellectual property.

We have of course heard of this sort of thing in the past: a person has videos demonetized despite the content being of their own creation. Still, there is something perfectly simplistic about this case. A game and music maker puts videos up of his own game and music...and it gets demonetized. While no system is ever perfect, that YouTube's system allows for this sort of thing to not only happen, but to go on for months without correction, is an indication that the system sucks and something else should be done.

Now, as often happens, once Salvato complained publicly, YouTube got in touch to investigate. People will point to this as though future rectification made all of this acceptable. But that's absurd. After all, you're forced to wonder just how often this sort of thing occurs and doesn't ever get fixed.

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Posted on Techdirt - 4 September 2020 @ 7:39pm

Students, Parents Figure Out School Is Using AI To Grade Exams And Immediately Game The System

from the teacher-bot dept

With the COVID-19 pandemic still working its way through the United States and many other countries, we've finally arrived at the episode of this apocalypse drama where school has resumed (or will be shortly) for our kids. It seems that one useful outcome of the pandemic, if we're looking for some kind of silver lining, is that it has put on full display just how inept we are as a nation in so many ways. Federal responses, personal behavior, our medical system, and our financial system are all basically getting failing grades at every turn.

Speaking of grades, schools that are now trying to suddenly pull off remote learning for kids are relying on technology to do so. Unfortunately, here too we see that we simply weren't prepared for this kind of thing. Aside from all of the other complaints you've probably heard or uttered yourselves -- internet connections are too shitty for all of this, teachers aren't properly trained for distance learning, the technology being handed out by schools mostly sucks -- we can also add to that unfortunate attempts by school districts to get AI to grade exams.

This story begins with a parent seeing her 12 year old son, Lazare Simmons, fail a virtual exam. Taking an active role, Dana Simmons went on to watch her son complete more tests and assignments using the remote learning platform the school had set students up on, Edgenuity. While watching, it became quickly apparent how the platform was performing its scoring function.

She looked at the correct answers, which Edgenuity revealed at the end. She surmised that Edgenuity’s AI was scanning for specific keywords that it expected to see in students’ answers. And she decided to game it. Now, for every short-answer question, Lazare writes two long sentences followed by a disjointed list of keywords — anything that seems relevant to the question. “The questions are things like... ‘What was the advantage of Constantinople’s location for the power of the Byzantine empire,’” Simmons says. “So you go through, okay, what are the possible keywords that are associated with this? Wealth, caravan, ship, India, China, Middle East, he just threw all of those words in.”

“I wanted to game it because I felt like it was an easy way to get a good grade,” Lazare told The Verge. He usually digs the keywords out of the article or video the question is based on.

And Lazare appears to have been right, as he now gets perfect scores on all of his tests. This is obviously both lazy teaching and lazy technology. Relying on software to grade tests that are essentially short-form essay tests, as opposed to multiple-choice Scantron style tests, make zero sense. Human grading is needed.

But the technology is quite lazy as well. How can a platform that is grading exams of this nature not build in a check against proper grammar, for instance? The fact that a student can simply toss in a bunch of disjointed words at the end of an answer, like some kind of keyword metadata, and get away with it is crazy. Especially when Edgenuity informs everyone that it's supposed to work this way.

According to the website, answers to certain questions receive 0% if they include no keywords, and 100% if they include at least one. Other questions earn a certain percentage based on the number of keywords included.

Whatever that is, it sure as hell isn't good education. And while testing practices in education are generally under scrutiny wholesale at the moment, there is little reason to issue tests at all if everyone involved is going to be this lazy about it.

And, to be clear, this is happening all over the place, with students finding more than one way to game the system.

More than 20,000 schools currently use the platform, according to the company’s website, including 20 of the country’s 25 largest school districts, and two students from different high schools to Lazare told me they found a similar way to cheat. They often copy the text of their questions and paste it into the answer field, assuming it’s likely to contain the relevant keywords. One told me they used the trick all throughout last semester and received full credit “pretty much every time.”

Another high school student, who used Edgenuity a few years ago, said he would sometimes try submitting batches of words related to the questions “only when I was completely clueless.” The method worked “more often than not.”

I think it's fair to say that Edgenuity probably doesn't get a passing grade for its platform, now widely used thanks to COVID-19.

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Posted on Techdirt - 3 September 2020 @ 8:11pm

Sony May Just Be Loosening The Reins As Gaming Brings In A Plurality Of Its Revenue

from the money-games dept

Any trip down Techdirt's memory lane when it comes to Sony is not going to leave you with a good taste in your mouth. This is a company that has been almost comically protective of all things intellectual property, engaged in all manner of anti-consumer behavior, and is arguably most famous for either using an update to remove features from its gaming console that generated sales of that console or for installing rootkits on people's computers. When it comes to any positive stories about the company, in fact, they mostly have to do with the immense success Sony had in the most recent Console Wars with its PlayStation 4 device.

Positive results and gaming aren't a crosstab of coincidence for Sony, it seems. There are couple of converging stories about Sony, one dealing with its revenue and another with its plans for its gaming divisions opening up a bit, that point to positive developments. To set the stage, let's start with the fact that the video game industry is now the biggest revenue generator for Sony.

Sony’s full year corporate report was published over the weekend Australian time, and as always it covers Sony’s PlayStation division as well as the other units within its business. Naturally, the coronavirus was a big factor, with Sony estimating a ¥68.2 billion loss ($876.3 million) in operating income just from COVID-19.

But gaming has done well for Sony. The PlayStation business now generates more sales and operating income than any other part of Sony:

Now, it's worth noting that Sony's gaming revenue is actually down for 2019, but the percentage as revenue generator for the company is up. And, as noted above, gaming is now the single largest revenue generator of any market Sony is in. And what's really interesting in all of that is that it's happening while Sony has famously limited its own reach with walled gardens. PlayStation exclusives have been the norm wherever Sony can sign them. Sony's first-party games, many of them among the best that gaming has to offer, have of course been siloed on PlayStation consoles. For years, Sony limited PS4's remote play function to Sony Xperia phones that never broke ground in market share. Everything, it seemed, was designed to be as locked into Sony's walled garden as possible.

But we're starting to see signs that the company has recognized that it needs to change.

All that said, explicitly mentioning the potential for PC ports in its annual report is the latest sign that Sony continues to slowly loosen its tight, walled-garden approach to game hardware and software. In 2017, for instance, Sony expanded its PlayStation Now streaming service to work on Windows PCs as well as PS4 hardware. That service now has 2.2 million regular subscribers, Sony says, up significantly from the 1 million subscribers claimed last November.

In 2018, Sony finally opened PS4 titles to cross-platform online play with other consoles after years of public reluctance on that score. Then, earlier this year, Sony said MLB: The Show will come to non-PlayStation consoles as soon as 2021, after decades of PlayStation exclusivity.

It all speaks to a company that's more aware that "competition from online PC games and players from other industries is expected to continue to intensify," as it says in its annual report. Even as Sony pushes hard for the exclusive "speed, haptics, and sound" improvements of the upcoming PlayStation 5 this year, it is hedging its bets somewhat with support for non-Sony hardware as well.

If gaming is your best revenue generator, these moves only make sense. MLB The Show is fantastic; why should Sony only sell it to PlayStation owners? While Horizon: Zero Dawn took over three years to make it to the PC... it still made it. Why wouldn't Sony want to sell its game to PC gamers that may never want to buy a PlayStation, but would love to play some of the games previously exclusive to it?

It's long past time Sony teared the walls of its garden down. Let the revenue streams in. Increase availability of its products. Make more money.

The only surprising aspect of all of this is how much work it took to convince Sony that more money was good.

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Posted on Techdirt - 2 September 2020 @ 7:37pm

Animal Crossing Continues To Be An Innovative Playground As Biden Campaign Begins Advertising On It

from the sign-of-the-times dept

For nearly half a year now, especially when this damned pandemic really took off, we've been bringing you the occasional story of how Nintendo's Animal Crossing keeps popping up with folks finding innovative ways to use the game as a platform. Protesters advocating for freedom in Hong Kong gathered in the game. Sidelined reality show stars took to the game to ply their trade. Very real people enduring very real layoffs used the game's currency as a method for making very real money. As someone who has never played the game, the picture I'm left with is of a game that is both inherently malleable to what you want to do within it and immensely social in nature.

So perhaps it was only a matter of time before one of the major Presidential candidates got involved.

Joe Biden's presidential campaign is rolling out a series of official virtual yard signs designed for display on islands in Animal Crossing: New Horizons for the Nintendo Switch.

As first reported by The Verge, the four virtual sign designs squeeze supportive messages for the Democratic candidate into a 32 x 32 pixel, 16-color custom pattern square, suitable for displaying on a sign in front of your virtual house. In addition to the standard "Biden Harris" and "Team Joe" designs, the campaign has also released a version with a rainbow pride logo integrated into the "JOE" branding and a design featuring Biden's signature aviator sunglasses in red, white, and blue.

Putting any thoughts about individual candidates aside, it's a pretty fun and low-risk use of a social video game by the Biden team. How much effort did it take to put these images and in-game items together? Not very long, to be sure. And, with turning out the youth vote being such a premier goal of literally any political campaign, this is at least an innovative way to try to build some momentum with younger voters.

And, thankfully, it won't be terribly intrusive, unlike the politics of this stupid real life hellscape we all live in. Nobody is going to see these signs unless they visit the island of the person using them. This isn't any more in-your-face than real life yard signs for a candidate.

All that being said, the Biden campaign should probably be on the lookout for some unintended fuckery, given historical attempts to do this sort of thing.

Political campaigns using video games to get their message out has a short and spotty history. Former Virginia Gov. Mark Warner was among the first politicians to be interviewed in Second Life's virtual world back in 2006, an interview locale which later became known for attacks by flying penis griefers.

Not going to lie, I'm sort of sorry I missed that one. Either way, it remains interesting to see how folks are finding new ways to use open and social worlds like Animal Crossing.

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Posted on Techdirt - 1 September 2020 @ 3:43pm

SafeSpeed Executive Charged With Bribing Cook County Officials For Red Light Camera Contracts

from the safe-bet dept

In January of this year, we discussed how the Illinois Comptroller had decided to opt out of collecting red light camera fees for motorists ticketed by these automated revenue generators. Susan Mendoza said in a statement that while her office was taking this action due to the feds investigating the contractor for the cameras, a company called SafeSpeed, it was also her position that red light cameras were revenue generators with little efficacy at impacting public safety.

All very true... but about that federal investigation.

Omar Maani, a former co-owner of politically-connected red light camera company SafeSpeed, has been charged with scheming with a former high-ranking Cook County official to bribe the relative of an Oak Lawn village trustee in order to install new red light cameras in the southwest suburb.

Maani is charged with one count of bribery conspiracy in a two-page document known as a “criminal information,” which is typically used in cases [w]here the defendant intends to plead guilty.

If true, such a guilty plea and quick conviction would lay bare the truth that red light cameras for years have been used to bilk money from taxpaying citizens to fill the coffers of both state governments and the contractors those governments work with. In this specific instance, the accusations against Maani suggest fairly brazen behavior. Maani is accused of attempting to pay a close family member of trustee from a Chicago suburb in exchange for installing SafeSpeed cameras in the city. While that is good old fashioned Chicago area politics, it's also textbook bribery.

And if you might think this was some one-off scheme, it came about in coordination with the chief of staff for Cook County's Commissioner, Patrick Doherty, among others.

In February, Doherty was indicted on two counts of bribery and one count of conspiracy to defraud, accused of conspiring with a fellow SafeSpeed sales agent and one of the company’s owners to pay $4,000 in bribes to the relative of an Oak Lawn village trustee, in exchange for influencing that trustee to help approve the installation of additional cameras.

The charges against Doherty came about two weeks after former Illinois State Sen. Martin Sandoval pleaded guilty to taking $70,000 in bribes to act as a “protector” for red light camera company SafeSpeed. Sandoval said he agreed to take bribes in exchange for blocking proposed legislation to ban red light cameras.

This again should lay to rest what the purpose of red light cameras is: revenue generation. They aren't about safety. They aren't about the law. They aren't about influencing driving habits. They are about money, full stop.

Which is why they should not exist.

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Posted on Techdirt - 31 August 2020 @ 7:57pm

If A College Is Going To Make COVID-19 Contact Tracing Apps Mandatory, They Should At Least Be Secure

from the tracer-round dept

One of the more frustrating aspects of the ongoing COVID-19 pandemic has been the frankly haphazard manner in which too many folks are tossing around ideas for bringing it all under control without fully thinking things through. I'm as guilty of this as anyone, desperate as I am for life to return to normal. "Give me the option to get a vaccine candidate even though it's in phase 3 trials," I have found myself saying more than once, each time immediately realizing how stupid and selfish it would be to not let the scientific community do its work and do it right. Challenge trials, some people say, should be considered. There's a reason we don't do that, actually.

And contact tracing. While contact tracing can be a key part of siloing the spread of a virus as infectious as COVID-19, how we contact trace is immensely important. Like many problems we encounter these days, there is this sense that we should just throw technology at the problem. We can contract trace through our connected phones, after all. Except there are privacy concerns. We can use dedicated apps on our phones for this as well, except this is all happening so fast that it's a damn-near certainty that there are going to be mistakes made in those apps.

This is what Albion College in Michigan found out recently. Albion told students two weeks prior to on-campus classes resuming that they would be required to use Aura, a contact tracing app. The app collects a ton of real-time and personal data on students in order to pull off the tracing.

Aura, however, goes all in on real-time location-tracking instead, as TechCrunch reports. The app collects students' names, location, and COVID-19 status, then generates a QR code containing that information. The code either comes up "certified" if the data indicates a student has tested negative, or "denied" if the student has a positive test or no test data. In addition to tracking students' COVID-19 status, the app will also lock a student's ID card and revoke access to campus buildings if it detects that a student has left campus "without permission."

TechCrunch used a network analysis tool to discover that the code was not generated on a device but rather on a hidden Aura website—and that TechCrunch could then easily change the account number in the URL to generate new QR codes for other accounts and receive access to other individuals' personal data.

It gets worse. One Albion student was able to discover that the app's source code also included security keys for Albion's servers. Using those, other researchers into the app found that they could gain access to all kinds of data from the app's users, including test results and personal identifying information.

Now, Aura's developers fixed these security flaws...after the researchers brought them to light and after the school had made the use of the app mandatory. If anyone would like to place a bet that these are the only two privacy and security flaws in this app, then they must certainly not like having money very much.

To be clear, plenty of other schools are trying to figure out how to use technology to contact trace as well. And there's probably a use for technology in all of this, with an acceptable level of risk versus the benefit of bringing this awful pandemic under control.

But going off half-cocked isn't going to help. In fact, it's only going to make the public less trustful of contact tracing attempts in the future, which is the last thing we need.

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