Posted on Techdirt - 23 January 2017 @ 4:57pm
Last summer, we brought to you the story of how Bryton Mellott, a young man in Urbana, IL, was arrested for posting a picture of himself burning the American flag on his social media accounts. The story was strange on a variety of levels. First, the law utilized to arrest him, one of many flag-burning prohibitions that exist in laws at the state level, had been declared unconstitutional decades prior to it having ever been enacted. Burning the flag has been codified as a form of protected free speech, no matter how stomach-turning any individual might find it. It was for that reason that the local State's Attorney's office requested that the police let Mellott go and didn't even attempt to bring any kind of charges against him, because they couldn't. The police report also noted that Mellott had been taken in for disorderly conduct, referencing the backlash his actions caused, which is insane. Blaming a victim of threats for receiving those threats as a reaction to protected speech ought to be beneath the common citizen, nevermind those we actually entrust to enforce the law.
But perhaps the strangest part of the story, previously un-noted by us in our original post, the impetus for Mellott's arrest was one officer's apparent desperate search to find something for which to arrest him.
Mellott’s post was widely shared and had received 200 comments by the following morning. But just 12 hours after his post, Urbana police officers arrested him at his job at Wal-Mart after Mellott’s supervisor called and reported threats made by unknown people against Mellott and the store. Officer Jeremy Hale researched the Illinois flag-desecration statute, found it was still on the books, and decided of his own accord to enforce it.
Policing in this country isn't traditionally done in this way. Complaints to a local law enforcement office aren't generally then used to scour the books for some potentially applicable law. For this reason, Mallott is suing the three arresting officers for violating his civil rights.
Mellott filed a civil-rights lawsuit late Wednesday in Urbana federal court, claiming the three arresting officers knew or should have known that flag burning has been a protected means of political protest for almost 30 years. He says they violated his civil rights by arresting him. Mellott seeks compensatory damages and a court order that the Illinois flag-desecration statute is unconstitutional. He is represented by Rebecca Glenberg with the Roger Baldwin Foundation of the American Civil Liberties Union.
“Open dissent is the highest form of American patriotism,” Mellott said in a statement. “And it was a frightening display of irony that on the Fourth of July, I should be taken from my workplace to sit in a county jail for exercising this liberty.”
It's difficult to see how this lawsuit isn't a winner. The Illinois state law is, on its face, flatly unconstitutional. That it was enacted decades after this question was decided says everything about the Illinois legislature and the rise of nationalism nationally and nothing about whether or not it might be remotely legal or enforceable. For Mellott to have been arrested and held for hours in a zealous attempt to punish protected speech, and on Independence Day no less, is about as blatant example of an infringement on the First Amendment of which I can think.
Read More | 37 Comments | Leave a Comment..
Posted on Techdirt - 23 January 2017 @ 1:08pm
This seems to be something of a regular occurrence now. In the recent past, several foreign countries have celebrated how stunningly real video game graphics have become by using them to pretend they are really great at war. The Egyptians did it to pretend that Russia was fighting ISIS, the Iranians did it to pretend that their forces could shoot people from a really long way away, and the North Koreans did it to pretend that they could deliver a nuclear ICBM to our soil.
Well, perhaps there is some synergy to be found over Korea's DMZ, because the South Koreans recently released footage detailing how super-awesome their new fighter jet program is, and that footage included several clips from both Battlefield 3 and Ace Combat.
The South Korean military has a new program to co-develop fighter planes. To show off the project, a web video was created with tax payers’ money. Oh, and unauthorized video game footage.
The Korea Times (via tipster Sang) report that the country’s Ministry of National Defense released the ten minute clip, which features a few seconds of Battlefield 3 and Ace Combat: Assault Horizon to show off the aircraft’s performance.
Here is a sample of a frame from the video and from the game footage it had been taken from, clearly showing that the efforts to disguise the unauthorized usage pretty much amounted to mirror-flipping the image and overlaying a few graphical filters.
It's one thing when a country with a shamble pile of an economy and an overinflated sense of its own power like North Korea does this sort of thing. We've come to expect it, on some level. But there is something really silly when a country with a real economy that is the ally of the United States sinks to the depth of playing make-believe to thump its chest. It's the kind of thing that calls into question the might and capability of the rest of the fighting force of South Korea, which is a terrible signal to send to its northern neighbor.
To induce even more head-shaking, it seems that everyone is blaming each other for all of this.
The military acknowledged that the footage wasn’t authorized and said it will cease using the clip. It also blamed the company that produced the video, and that company is, in turn, blaming the Agency for Defense Development and Korea Aerospace Industries, alleging that they had a say over everything.
One would hope that the game publishers in question won't stoop to the level of trying for a copyright claim over all of this. Instead, they ought to beam proudly that their game footage was deemed realistic enough to attempt to pass off as real-life warring. South Korea, meanwhile, will need to wipe that egg off of its face.
13 Comments | Leave a Comment..
Posted on Techdirt - 20 January 2017 @ 2:55pm
This story is a rather fast-moving, so let's dig in. Ark: Survival is a survival game in which you hunt dinosaurs. Being a PC game, there is a fairly healthy modding community working with the game to expand it, make slight alterations to it, and even inject other instances of pop culture into it. Case in point is the Pokemon Evolved mod, which replaces the dinos that are to be hunted with, you guessed it, pokemon. As you probably also have already guessed, the mod was hit with a DMCA notice and was briefly taken out of the Steam Workshop.
You would be forgiven at this point if you immediately assumed that it was the folks at either Nintendo or The Pokemon Company, both of which have been noticed policing the Pokemon IP aggressively. It was therefore head scratching that much of the reporting was peppered with caution over assigning blame for the DMCA, such as was the case in the original PC Gamer post linked above.
We're not sure yet who issued the DMCA notice—we've inquired and will let you know when we hear back, but it could definitely spell trouble for the mod, especially since modder 'Mystic Academy' admits the models and animations used in the mod were imported directly from Pokémon X/Y rather than recreated from scratch. The modder only made changes to ensure the models worked in-game.
Anyone familiar with how the Pokemon property has been protected in the past no doubt saw these caveats as superfluous hand-wringing. Turns out they were not, however. The developer of the mod, Mystic Academy, began making a great deal of noise about the DMCA actually coming from a rival modding group that was also releasing a mod for the game to inject Pokemon into it. That accusation appears to now be the accepted reality, with the DMCA being rescinded...
The DMCA notice has apparently been lifted, and no longer appears on the mod's page in the Steam Workshop.
...and Mystic Academy having a bit of fun at the accused DMCAer, a modder going by "Cheese", who does indeed have a rival mod called ARKmon WIP.
Now, the DMCA process is supposed to be utilized by rights-holders to protect their own intellectual property. DMCA notices initiated with service providers typically (always?) include language such as the following example from Vimeo:
A statement by you UNDER PENALTY OF PERJURY that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
The "penalty of perjury" portion sounds great, warning against issuing DMCA notices over intellectual property not owned by the issuer, except the provision is so rarely enforced as to render it mere legal smegma. Too often the DMCA process is abused in this way, acting as a weapon against rivals rather than a tool for copyright enforcement. That this can be done at all should signal a significant flaw in the process, one in need of correcting.
Of course, the next update in this story may end being that Nintendo or The Pokemon Company render this drama moot by issuing their own DMCA notices to takedown both mods, which would be disappointing but not surprising. Still, this serves as a useful highlight of a flaw in the system that renders DMCA as a potential tool for censorship rather than protection.
6 Comments | Leave a Comment..
Posted on Techdirt - 20 January 2017 @ 1:15pm
Let's start this off by stipulating that the Red Cross is an organization well known for doing very real humanitarian work. While some have raised questions as to exactly how ethically it spends donor money, the organization is still on the front lines in helping those suffering from natural and man-made disasters. All that being said, the Red Cross has also shown itself to wander over the line of sense when it comes to both video games and policing some of its iconography. Recall that the Red Cross insisted, for instance, that games that allowed players to commit what would constitute war crimes also be required to include virtual punishments for those actions. On policing the use of its icons, the organization has suggested in the past that the use of its red cross symbol on theatre costumes constitutes a violation of The Geneva Conventions.
These two realms in which the Red Cross likes to play crazy have now converged, with Mark Morris and Chris Delay, makers of the notorious video game Prison Architects, having received notice that the game's inclusion of an ambulance emblazoned with a red cross constituted a violation of The Geneva Conventions.
Days before Christmas, Delay and Morris received a concerning email from the British Red Cross.
"My immediate reason for writing is that it has been brought to our attention that in your game ‘Prison Architect’ a red cross emblem is displayed on vehicles," it reads. "Those responsible may be unaware that use of the red cross emblem is restricted under the Geneva Conventions for the Protection of War Victims of 12 August 1949, and that unauthorised use of this sign in the United Kingdom is an offence under the Geneva Conventions Act 1957."
The two had made a mistake stemming from a common misconception that a red cross denoted health services. It doesn't. And The Geneva Conventions do indeed offer international protection to the Red Cross icon, theorizing that allowing other uses of it would dilute Red Cross worker's safety when operating in war zones and elsewhere. The idea is that the rules of war ought to prevent opposing military forces pretending to be Red Cross workers in order to gain a strategic advantage.
How the Red Cross believes this goal bleeds into the virtual world of running a prison is anyone's guess.
Yet the use of the red cross for just those reasons is common. A Google search for 'health pack' returns dozens of results for everything from Doom to Halo. Outside of videogames, it appears in comic books, movies, and even theater. With misuse of the symbol so apparently widespread, Delay tells me he was a bit upset to find that Prison Architect had been one instance where the hammer would fall.
"Red crosses are such a minor five-pixel wide symbol in Prison Architect," he argues. "There's one on the ambulance and one on the back of a health pack. They are so tiny. I think it's ridiculous. It's not like we had these enormous red crosses everywhere on the sides of vans in war zones. It's this miniscule pixelated red cross you can barely make out."
Trademark bullying is one thing, but to throw around something as important as the international rules of war in order to keep a few pixels out of a video game is both silly and disrespectful of those same rules. No reasonable person would think that those that wrote The Geneva Conventions intended it to be used in this way. Nor can anyone explain why this kind of protectionism is levied so randomly. And there are grave consequences associated with the threat the Red Cross is issuing.
The real issue, at least where Delay and Morris live, seems to have more serious consequences than just being sued. In the United Kingdom, the provisions of the Geneva Conventions were incorporated into British law in 1957. Prison Architect's misuse of the emblem wasn't just breaking the Geneva Conventions (which feels kind of like some distant bogeyman), but the laws of their own country. That's why, upon getting the email, they were quick to comply. Boot up Prison Architect and call in some paramedics, and you'll no longer see that red cross. Now it's green. Delay tells me the change took seconds to make in Photoshop. "It's not worth taking the stand," Morris says. "You have to pick your battles."
True, but that doesn't render what the Red Cross did any less silly. If having lawyers draft these kinds of threat letters is how the organization is spending donor money, that doesn't say much for its otherwise notable reputation.
32 Comments | Leave a Comment..
Posted on Techdirt - 19 January 2017 @ 7:57pm
Questions about how we approach our new robotic friends once the artificial intelligence revolution really kicks off are not new, nor are calls for developing some sort of legal framework that will govern how humanity and robots ought to interact with one another. For the better part of this decade, in fact, there have been some advocating that robots and AI be granted certain rights along the lines of what humanity, or at least animals, enjoy. And, while some of its ideas haven't been stellar, such as a call for robots to be afforded copyright for anything they might create, the EU has been talking for some time about developing policy around the rights and obligations of artificial intelligence and its creators.
With AI being something of a hot topic, as predictions of its eventual widespread emergence mount, it seems EU MEPs are attempting to get out ahead of the revolution.
In a new report, members of the European Parliament have made it clear they think it’s essential that we establish comprehensive rules around artificial intelligence and robots in preparation for a “new industrial revolution.” According to the report, we are on the threshold of an era filled with sophisticated robots and intelligent machines “which is likely to leave no stratum of society untouched.” As a result, the need for legislation is greater than ever to ensure societal stability as well as the digital and physical safety of humans.
The report looks into the need to create a legal status just for robots which would see them dubbed “electronic persons.” Having their own legal status would mean robots would have their own legal rights and obligations, including taking responsibility for autonomous decisions or independent interactions.
It's quite easy to make offhand remarks about all of this being science fiction, but this isn't without sense. Something like the artificial intelligence humanity has imagined for a century is going to exist at some point and, with advances beginning to look like that may come sooner rather than later, it only makes sense that we discuss how we're going to handle its implications. After all, technology like this is likely to impact our lives in significant and varied ways, from our jobs and employment, to our interactions with our electronic devices, not to mention warfare.
I think the most interesting philosophical and moral questions surround these MEPs call to grant robots and AI with the designation of "electronic persons." The call has largely focused on saddling robotic "life" with many of the obligations humanity endures, such as tax obligations and being under the jurisdiction of humanity's legal system. But personhood can't only come with obligations; it must too come with rights. And there would be something strange in recognizing a robot's "personhood" while at the same time making use of its output or labor. The specter of slavery begins to rear its head at this point, brought on only by that very designation. Were they electronic "beasts", for instance, the question of slavery wouldn't arise outside of the fringe.
The MEPs report does also deal with the potential danger from AI and robots in its call for designers to "respect human frailty" when developing and programming these machine-lives. And here the report truly does delve into science fiction, but only out of deference to great literature.
Things descend slightly into the realms of science fiction when the report discusses the possibility of the machines we build becoming more intelligent than us posing “a challenge to humanity's capacity to control its own creation and, consequently, perhaps also to its capacity to be in charge of its own destiny.”
However, to stop us getting to this point the MEPs cite the importance of rules like those written by author Isaac Asimov for designers, producers, and operators of robots which state that: “A robot may not injure a human being or, through inaction, allow a human being to come to harm”; “A robot must obey the orders given by human beings except where such orders would conflict with the first law” and “A robot must protect its own existence as long as such protection does not conflict with the first or second laws.”
While some might laugh this off, this too is sensible. There is simply no reason to refuse to have a discussion about how a life, or a simulacrum of life, that is created by humanity, might pose a danger to that humanity, either at the level of the individual or the community.
But what strikes me most about all of this is how the EU seems to be the ones out in front of this, while any discussion in the Americas has been either muted or occurring behind closed doors. If this is a public discussion worth having in the EU, it is certainly one too worth having here.
47 Comments | Leave a Comment..
Posted on Techdirt - 19 January 2017 @ 3:23am
You may recall the rather short saga of video game studio Digital Homicide. That studio attempted to find success with a strange formula: sue game reviewers over negative reviews, sue Steam accounts for likewise negative reviews, find its game suddenly delisted from Steam entirely, and then declare itself dead. Not exactly the end that Digital Homicide was hoping for, certainly. One would have hoped that its story would serve as a warning to other game studios. And perhaps to some extent it has, as another game developer, Matan Cohen, ever so slightly altered the formula in probably the worst way possible.
It still starts off with abusing the DMCA process to take down negative reviews and threatening the reviewer with legal action, of course. In this case, we once again find Jim Sterling, the same reviewer threatened by Digital Homicide, being the victim of a game developer's abuse. After having first filed a DMCA claim on Sterling's review of the game Art of Stealth, Cohen then allegedly went on a legal threat binge against Sterling.
These kinds of threats never work, but behaving as though you were specifically attempting to follow the playbook of a now-dead game studio, even mimicking its targets in the game review community, seems like a terrible business strategy. But, as I said, Cohen does indeed deviate from the Digital Homicide playbook at this point. Cohen has by all accounts not attempted to sue Steam users for what have likewise been fairly negative reviews on his game's Steam page.
Instead, he appears to have decided to simply make up a bunch of Steam accounts and have them post fake reviews for his game instead. It was apparently blatant enough that Steam investigated and decided to push the button on the nuclear option and remove the game from Steam entirely.
We (Valve) have identified unacceptable behavior involving multiple Steam accounts controlled by the developer of this game, Matan Cohen. The developer appears to have created multiple Steam accounts to post a positive review for their own game. This is a clear violation of our review policy and something we take very seriously.
For these reasons, we are ending our business relationship with Matan Cohen and removing this game from sale. If you have previously purchased this game, it will remain accessible in your Steam library.
When, oh when, will content makers realize that making war on negative reviews of their works is a losing proposition. The focus needs to be on making great content and connecting with people, not wielding legal threats as a cudgel. And, for the love of the universe, attempting to fake positive coverage can only serve to torpedo your career.
27 Comments | Leave a Comment..
Posted on Techdirt - 18 January 2017 @ 4:54pm
There may be nothing more frustrating than trademarks being granted for terms that serve as simple geographic identifiers. With a couple of recent stories revolving around names of cities, or acronyms of them, it's probably time to consider whether some kind of official reform of trademark rules needs to be undertaken to keep companies from locking up such broad terms for commercial purposes. And there may be at least a slim chance that this conversation is starting, with the high profile example of the newly minted Los Angeles Chargers NFL team serving as notice.
It was only this past week that the Chargers finally announced what everyone already knew was going to happen: the team is moving to the city of angels. As is SOP for an organization of its size, the team filed trademark applications for several iterations of its team name, including the term "LA Chargers." And that, almost immediately, is where the problems began to arise.
Unfortunately for the team, its “LA Chargers” trademark application ran into an issue. On Dec. 20, LA Gear, the ‘80s-era athletic apparel company, filed a Notice of Opposition with the Patent and Trademark Office’s Trademark Trial and Appeal Board related to the apparel portion of the “LA Chargers” application, on the grounds that it conflicts with LA Gear’s trademarks, and is likely to cause consumer confusion as to the source of the goods.
In the opposition, the Chargers are referred to as “Applicant” and LA Gear is “Opposer.” The document lists 22 U.S. trademark registrations owned by LA Gear. The oldest dates back to 1985. Two of LA Gear’s registrations are in the form of logos that consist of the letters “LA” – meaning those logo registrations do not include the word “Gear.”
This. Is. Ridiculous. Allowing for a monopoly on all things apparel over the acronym of the second largest city in the United States has absolutely zero to do with protecting the consuming public from confusion, no matter what LA Gear's opposition filing states. This is all to do with pushing the Chargers instead into some kind of lucrative licensing deal. And, for once, there is actually going to be some validity in common claims that failing to police the mark can result in it no longer being protected, particularly given that examples of LA Gear's failure in doing so includes examples analogous to the Chargers.
Back in 2008, Major League Soccer’s LA Galaxy received a trademark for a logo that includes the words “LA Galaxy.” The Trademark Office records for that application show no opposition filed by LA Gear. It’s possible that the MLS team may have negotiated a private agreement with LA Gear to avoid these issues, and the Chargers/NFL haven’t been willing or able to do so. It seems more likely that LA Gear’s opposition to the LA Chargers trademark is a new tactic, and that the company intends to test the boundaries of its trademark rights in phrases including the word “LA,” at least as they apply to athletic apparel.
And that's hopefully a test that it will flunk, should the Chargers seek to have LA Gear's trademark protections repealed. And they should be, just as the mark never should have been granted in the first place. Were employees of the Trademark Office to have simply asked themselves whether approving the LA Gear trademark application did more to serve the public or the applying company, the conclusion would have been clear, as would have been the appropriateness of rejecting the application to begin with. Instead, this must happen on the back end, hopefully with a challenge to the mark by the Chargers.
Sadly, some are predicting that the team won't bother.
LA Gear’s claim may be a bit of a stretch, but it’s not impossible that the Trademark Office – or a court, should this dispute go that far – would rule in its favor. With all the drama around the team’s departure from San Diego, I’d bet the Chargers will simply come to a settlement agreement with LA Gear rather than put their incredibly valuable brand at risk of an adverse court ruling.
Here's hoping the team shows some backbone instead. No single entity ought to be able to control the acronym for a major city in this way.
11 Comments | Leave a Comment..
Posted on Techdirt - 13 January 2017 @ 7:39pm
We have talked about the power of connecting with fans and giving them a reason to buy, along with using public shaming, as tools for combating piracy in its various forms. Tools far better, in fact, than twisting in litigious winds hoping that the construct of law will be sufficient to curb natural human behavior... and finding out that it isn't. What these routes offer content producers is a way to ingratiate themselves with their fans, building a community that not only wants to buy content themselves, but also will decry any attempt to pirate that content by others. Morality is shaped by the herd, in other words, so having the herd on your side finds content producers a powerful ally.
But philosophy like that doesn't penetrate industry in and of itself. Perhaps, then, data and academic studies may. The International Journal of Business Environment recently released just such a study suggesting that content providers are far better off reaching out and connecting with fans, including those pirating their works, rather than trying to fight piracy legally.
According to Eva Hofmann of the Centre for Trust, Peace and Social Relations, Coventry University, UK and Elfriede Penz of the Institute for International Marketing Management, at Vienna University of Economics and Business, in Austria, the unauthorised sharing of digital content is well-entrenched in popular culture. However, they have discerned a difference in the way those downloading pirated content and the legal downloaders decide on how to obtain the content they desire from the Internet.
The researchers note that inherent in the problem for copyright holders is that digital goods can be duplicated endlessly without loss of fidelity, making piracy easy but also suggesting that the value of such goods as being less than traditional, physical items in the realm of content, such as CDs and DVDs.
This nicely outlines why piracy exists at the levels it does: there is something natural in deciding that something that can be reproduced infinitely in a digital manner at no cost differs from a physical good that cannot. It's the reason why piracy and theft simply aren't the same thing. This doesn't make copyright infringement or piracy morally acceptable, of course, but it explains why the moral equation for those doing the piracy is inherently different. Everyone knows this intrinsically, even if some major content industry players want to pretend otherwise.
The study's abstract itself suggests that the best method for combating this is to engage with the public to change that moral equation.
Respondent groups differ in the effect of social consensus on the decision-making process. Additionally, the entire issue-contingent model is important in internet piracy research. From a practical view and based on social consensus results, it is essential for companies to establish sentiments that unauthorised downloading is an unacceptable behaviour within a specific social group that is highly relevant to downloaders.
In other words, creating a real connection with fans that are also given a real reason to buy content alters the moral equation for those that seek out that content. If enough minds are changed in that manner, it will have an exponential moral effect as those fans of the producer both promote the buying of the content and speak out or subvert attempts to pirate it. It works on both levels: convincing more people to buy the product and creating a fan-base hungry for the content provider to succeed so as to get more content.
CwF + RtB, in other words, along with a fan-based army willing to publicly shame pirates.
45 Comments | Leave a Comment..
Posted on Techdirt - 13 January 2017 @ 9:40am
Our soon-to-be American President has made quite a show about bolstering the country's efforts for cybersecurity. The "cyber", as he is wont to call the issue, is claimed to be in disrepair and requires brave new minds to protect the country's computer systems from hacks and attacks from outside forces. We've already discussed in the past how depressing it is to learn just how little actual computer science knowledge exists floating in the minds of our elected leaders and their top-level appointees. There is an opportunity to get very smart, very well-educated people on matters of cybersecurity involved in government.
But it appears that Trump is choosing instead to pass on that opportunity, instead tapping Rudy Giuliani to head up his cybersecurity task force. Giuliani runs a consulting firm that claims to be involved in cybersecurity, of course, except that the extent of its work on the subject appears to be the claims that it does so.
Giuliani does head a consulting firm in New York called Giuliani Partners that supposedly focuses on cybersecurity, but Vice’s Motherboard reported yesterday, it’s tough to tell what they actually do, and it’s even tougher to tell what Giuliani does for them, besides being the face of the operation while saying outrageous things on television.
As Motherboard’s Jason Koebler and Lorenzo Franceschi-Bicchierai wrote, “Unlike many other cybersecurity firms, Giuliani Partners does not publish white papers about malware and large-scale hacks, or push for increased adoption of encryption, which would enhance cybersecurity across the board. In fact, it doesn’t talk much about cybersecurity at all, instead choosing to focus on its more traditional anti-crime consulting work.”
So we're off to a great start. Instead of bringing in someone with actual knowledge and experience in cybersecurity, the President Elect has instead put a cybersecurity cosplayer in charge. And not even a particularly good impersonator of a cybersecurity expert, it seems, as the internet has already begun poking fun at the security measures, or lack thereof, Giuliani Consulting has deployed for its own website.
We might be better off if Trump decided to employ one of the four-hundred pound slobs in their mother's basement he's referenced previously, as they seem to have a better handle on the very basics of web security than Giuliani. And they'd probably be cheaper as well, as the former mayor is on the record that his "cybersecurity firm" was more a venture of opportunism than one of added value for his clients.
Look, combating risks on "the cyber" (sigh) may indeed require a high-profile face, if only for the purposes of reassurance and PR. Sadly, those purposes are not fulfilled by a former mayor with a cybersecurity company that doesn't do cybersecurity, even for its own website.
44 Comments | Leave a Comment..
Posted on Techdirt - 13 January 2017 @ 3:25am
The concept of buying up all the newspapers in town to avoid some embarrassing story or picture of oneself is old humor. The concept, featured in sitcoms of yester-yore, relies on a couple of things: newspapers being the single source of a story or photo and for news stories to not travel quickly nor beyond the insular community in which they occurred. Because of that, the joke doesn't really work in a hyperconnected world with digital media.
This was a lesson painfully learned by Joseph Talbot of Newark, it seems. Talbot, an otherwise apparently well-respected businessman, was arrested recently for driving while intoxicated. Understandably, he was embarrassed upon learning that news of his arrest had been written up in the local newspaper. His solution was to deploy the sitcom-level chicanery previously discussed.
Several Newark store clerks told the Times of Wayne County they saw Talbot buy hundreds of copies of the newspaper over the weekend, said Ron Holdraker, the editor and owner of newspaper. He estimated Talbot purchased somewhere between 900 and 1,000 copies of the paper from at least eight locations.
Holdraker, who graduated from Syracuse University in 1974, said the newspapers cost about $1.25 each, meaning Talbot would have spent at least $1,125 to buy the papers.
And that's roughly when the Streisand Effect took over. Talbot may now be wondering how much it costs to buy up all the internets, because the once-mundane and localized story of his arrest in the community newspaper has instead become a far more widespread story about his attempt to cover it up, featured across many websites. Spending over a thousand dollars to buy up the local papers is one thing. Trying to silence all of these internet sites would likely be far more expensive. Our own price tag, for instance, is a hundred million and one dollars, and we're likely to be on the cheap end of things.
Look, there's no joy in understanding that Talbot's emarrassment has multiplied because of his admittedly hilarious attempt at a coverup, but the world does need to understand that attempts to hide information in this manner will only result in it being further spread.
32 Comments | Leave a Comment..
Posted on Techdirt - 12 January 2017 @ 1:13pm
During the campaign and after his win, President Elect Donald Trump has been remarkably consistent on his calls for curtailing the rights afforded to the American people and our news organizations by the First Amendment. Between threatening lawsuits over campaign ads, suggesting that political protests ought to be stopped, and mocking free speech in more general terms, the soon-to-be President has positioned himself to be a challenger to long-held freedoms for which very real blood has been shed to protect.
But it seems the President Elect is not content to wait to enter office to try to begin this erosion of the First Amendment. Amidst a week of turmoil over the publication of comments about the classified briefing he, amongst others, received detailing intelligence findings about Russian involvement in the previous election cycle, Donald Trump has called upon Congress to investigate how this information was leaked to NBC News.
“I am asking the chairs of the House and Senate committees to investigate top secret intelligence shared with NBC prior to me seeing it,” he tweeted. "Before I, or anyone, saw the classified and/or highly confidential hacking intelligence report, it was leaked out to @NBCNews. So serious!" he added on Sunday.
We should note first the dissonance in Trump's stance and the Inception-esque nature of NBC's reporting. Essentially, NBC was reporting on a leak of a classified briefing that accused Russia of actively hacking, and then leaking, internal DNC communications. It's a leak about intelligence of a leak, in other words. And the DNC leaks were prominent talking points by Trump during the campaign, at times being read verbatim by the candidate at rallies, while at other times he simply read to the crowd news reports of the leaks. Those leaks were kosher, it seems, yet the NBC reports deserve Congressional investigation.
Perhaps more importantly, the prospect of Congress hauling journalists before the government to answer questions about their sources for the leaks takes the country back to a time prior to the precedent of not doing this.
Congressional committees, including the House and Senate intelligence committees, do technically have the authority to investigate the leak and subpoena NBC News reporters. But they are not likely to do so, media attorney Mark Zaid told POLITICO.
“I’d say there is little to no chance that Congress would get involved with any kind of classified media leak investigation,” he said. “Could they? Sure. Do they? No.”
In fact, the last time Congress did something like this was back in the 1970s, when a CBS reporter, Daniel Schorr, got his hands on a classified report from the House intelligence committee about illegal conduct perpetrated by the CIA. Schorr refused to name his source for the document in front of Congress, risking imprisonment, a punishment that was never actually levied. Given that the document Schorr used in his reporting, and subsequently shared with other news organizations, detailed only internal CIA practices and the government's assessments of them, returning to this kind of dangerous meddling by the government into news reporting over a document that deals with foreign spycraft would be strange indeed.
Strange, and dangerous, according to Joseph Califano, Jr., the man who represented Schorr during the ordeal.
Califano was dismayed after hearing about Trump’s tweet.
“That is a savage attack on the First Amendment,” he said. “We’ve been through this. Reporters have confidential sources. That’s become a hallowed part of the First Amendment and the ability of reporters to report. … These committees should not be getting into that.”
"If the government wants to find out who leaked and it’s somebody in the government, and if the intelligence community wants to find out who leaked, the Justice Department can go look at the CIA and look at all the national intelligence agencies," he said. "Not the reporter. That’s the wrong way to do it. That is really a serious erosion of a freedom that is essential."
But, as we've said, President Elect Trump has shown little regard for either the First Amendment or for the customs and norms of government action. Instead, he at times looks to wield government power as though it were his personal cudgel against his perceived political enemies. For anyone interested in a thriving and free America, whatever your political proclivities, whomever you may have voted for, the warning bells should be ringing loud and clear.
98 Comments | Leave a Comment..
Posted on Techdirt - 11 January 2017 @ 10:45am
Within Karl Bode's post about Verizon's insistence that all of the people who continue to use grandfathered unlimited data plans don't actually exist was a brief note about the company's decision to increase the cost to upgrade the phones themselves. As mentioned in the post, Verizon claimed that the reason to push upgrade costs from $20 to $30 was due to increasing costs. Fleshing that out a tiny bit, a Verizon spokesman commented for Ars Technica.
When asked why the upgrade fee was raised, a Verizon spokesperson told Ars, "These fees help cover increased cost to provide customers with America’s largest and fastest 4G LTE network."
As both Karl's and the Ars post note, there's a bit of a problem with this statement. Verizon's earnings reports are publicly available, you see, and the company's own reporting details a fairly significant decline in operating costs compared with the previous year. So, what was sold as a need to make up for increased expense appears instead to be something else. Once the post went live, another Verizon spokesman reached out to Ars again.
After this story published, Verizon responded that it was referring to "ongoing costs to maintain and enhance the network," but did not provide any further details.
Making the additional comment rather useless, I would say. We still have source material in the form of Verizon's own financial statements that suggest lower expenses for the company, not higher. What you do find, in addition to that, is a slightly smaller decline in revenue. It would make some sense for the company to try to make up for a revenue decline by raising upgrade fees. If that were the case, however, why not just say so? Why instead invoke the expense and the spectre of the future without anything concrete to back that up? It's not like the telecom industry has some sterling reputation when it comes to how and when it deploys the cost of maintaining or upgrading their networks as the reason to take certain actions. And why on the one hand charge extra fees to burgeon the network while at the same time eliminate data plans that could take advantage of a beefed up service?
The only thing that's certain in this is that Verizon appears to be dipping ever-further into tactics that are designed not to provide its customers with additional value, but to instead merely prop up a decreasing revenue number.
20 Comments | Leave a Comment..
Posted on Techdirt - 6 January 2017 @ 4:41pm
If there is one lesson you take away from writing about trademark law and disputes, it's how simple it would be to avoid a massive percentage of the conflicts by holding trademark applications to a far higher standard then they often are. If the world's many trademark offices kept in mind that the entire point of this form of intellectual property is supposed to be keeping the public confident in their ability to determine the source of a given product or service by its trademarked branding, then it would be obvious that approved trademarks should be unique and distinct.
As a counterexample to that line of thinking, consider the current dispute going on between Bushy's Brewery, located on the Isle of Man, and the Manx government, all over the government's trademark for exactly two letters: TT.
The company was hit with a legal warning by the Isle of Man government over the government’s ‘TT’ trademark, registered at the UK Intellectual Property Office (IPO). Since 1998, Bushy’s has operated a beer tent at the Isle of Man TT Race, a motorsport event held annually since 1907 in the crown dependency, which is located in the Irish Sea between England and Northern Ireland.
According to broadcaster ITV, the government’s Department of Economic Development issued a warning in response to controversy over the brewery’s use of the “iconic initials” (TT) and said that it needs to protect the famous TT brand.
Okay, some background for those of you non-racing enthusiasts. The Isle of Man is a small nation off the coast of England. It's main tourist attraction is a motor race called the Isle of Man Tourist Trophy, or "TT" for short. For the island's economy, it's a big deal. The brewery, also located on the island, has been a constant participant at the race, with a tent and sponsorship contribution. Bushy's Brewery registered a trademark for "TT" to cover beer, clothing, and catering services in March of 2015. The company was apparently taken aback when only recently the Manx government fired off its warning letter over the trademark it holds on the "TT" mark.
“Bushy's has been told by the Isle of Man government that it can't use the letters ‘TT’ because it's trademarked. Bushy's is synonymous with the TT, its beer and the beer tent.
“It also employs local people year-round, and contributes to the Manx economy. If the government believes in supporting the local economy, it should stop threatening legal action and let Bushy's ... use the letters ‘TT’.”
Basically everyone involved in all of this is being a bit ridiculous. The Manx government, were it so concerned about the brewery's use of the letters "TT", ought to have objected to the trademark when it was first applied for. To allow the registration first and to only later fire off a warning letter smacks of dysfunction. It's also unlikely that anyone is going to go to Bushy's beer tent and somehow think it's an arm of the government-operated event. Bushy's, meanwhile, registered and somehow attained a trademark on two letters. Acronym for a race or not, that itself is absurd. Which brings us to the Intellectual Property Office, which somehow saw fit to approve a trademark registration for exactly two letters in the English alphabet. Had it not done so, none of the parties would be in this mess.
But this is what you get when something like trademark law is allowed to stray so far from its original purpose.
13 Comments | Leave a Comment..
Posted on Techdirt - 5 January 2017 @ 5:41pm
It bears repeating: far too many of the trademark disputes we cover here at Techdirt are in large part the fault of a USPTO all too willing to grant trademarks on terms that are overtly either broad or based on geography. One would hope that it went without saying that trademarks, designed to inform the public as to the source of the products they buy, cannot work to that end if the identifying marks are not specific or original within the marketplace. Yet the Trademark Office too often doesn't seem to consider this when rubber-stamping applications.
For example, there is currently a trademark dispute going on between two coffee companies over the name of the city of "Detroit."
A local company’s Detroit-branded java doesn’t jive with an East Coast entity that claims it was the early bird in the Motor City joe business.
But the target of the complaint insists the Dec. 22 lawsuit filed by New York-based Detroit Coffee Co. is nothing more than a shakedown.
“This is a Wall Street-versus-Woodward type of mentality,” said A.J. O’Neil, owner of Hazel Park-based Detroit Bold Coffee Co. “They think the little guy will fold.”
Detroit Coffee Co., a Michigan LLC with a New York City address, filed a complaint alleging trademark infringement against Detroit Bold. It demands a jury trial in U.S. District Court for the Southern District of New York.
It's only through the absurdity of granting a trademark on something like "Detroit Coffee" to begin with that you can generate a reality that includes a New York City business suing a Detroit-based business over the name of a city combined with the name of a common product. When considering trademarks that incorporate geographic names, the bar for infringement is supposed to be much higher. And, should the case move forward, perhaps that higher standard will be applied, but it's still worth considering whether a trademark like "Detroit Coffee" ought ever to have been approved in the first place. After all, whatever the resolution in court ends up being, the monetary burden on such legal action isn't meager.
“It’s not like I have all this extra income to hire a big legal team and go (to New York) to fight this,” he said. “Those folks in New York are conjuring up something that at best has no merit.”
Adding to the strangeness of this particular case is that Detroit Coffee allowed its trademark to lapse until 2016, when it re-registered after Detroit Bold Coffee trademarked its two logos for "Detroit Bold Coffee Company."
O’Neil told The News he and his attorney, Mark Schneider, haven’t seen any evidence that Detroit Coffee actually sells any coffee under the Detroit Coffee name, or has ever sold coffee or other merchandise branded with that name. The trademarks the company pulled in the early 2000s were dead at the time Detroit Bold registered new logos bearing “Detroit Bold Coffee Co.” in early 2016, according to trademark office records.
Detroit Coffee renewed trademarks on the “Detroit Coffee” name for use on brewed coffees, teas and beverages on April 14, 2016, roughly two months after O’Neil registered two logos bearing the words “Detroit Bold Coffee Company.”
If true, that would seem to leave Detroit Bold Coffee in the clear, except it still would have to take on the burden of the court case. Which means this is all still ultimately the fault of a USPTO too willing to liberally approve trademarks.
23 Comments | Leave a Comment..
Posted on Techdirt - 4 January 2017 @ 4:55pm
When it comes to trademark issues, we tend to keep our pages filled with stories about disputes, bullying, and over-protectionism. While we try to highlight good-actors on matters of trademark, those stories are too few and far between for our tastes. With that in mind, why not start off the new year with one such example?
Toppling Goliath is a brewery in Iowa with a number of regular and seasonal beers. One of those is PseudoSue, an ale with a label that features a roaring Tyrannosaurus rex. Anyone from the Chicago area is likely already thinking of our beloved Field Museum and the enormous T. rex fossil skeleton of Sue, who the museum tends to dress up like some kind of prehistoric barbie doll whenever one of our local sports teams has themselves a particularly good season. The museum has a trademark registration for Sue that covers all kinds of mechandise and initially reacted as readers of this site will have come to expect.
“Initially the Field Museum was very hard line about” wanting to protect their trademark of the name Sue used with the image of a T. Rex, said Martha Engel, an intellectual property attorney who represents Toppling Goliath.
But, instead, the stance of those at the museum -- ahem -- evolved into one more cooperative with the brewery. Rather than going the protectionist route, both parties talked through a more amicable solution: a full-blown partnership to benefit both sides.
But, ultimately, the brewery owners and the marketing executives at the museum got together and decided to create a cross-promotion scheme rather than launch a legal fight.
“It became obvious that we could work well together,” Clark Lewey, a co-owner of the brewery, said. As part of the deal, Toppling Goliath will print new labels for PseudoSue and another beer called King Sue that promote the Field Museum and Sue, the T. Rex.
This example set by a brewery and a museum ought to serve as the antidote to the poison that is the most common excuse for trademark bullies: trademarks must be protected jealously or they will be lost. As this story shows, that isn't remotely true. Nor, by the way, is such protectionism the most optimal route for the trademark holder. By partnering with the brewery, the museum gets the promotion through the beer label and name. It also gets a nice PR story, along with an exclusive untapping of a beer within the Chicago market.
And all without the billable hours charged by the museum's attorneys.
9 Comments | Leave a Comment..
Posted on Techdirt - 4 January 2017 @ 2:46pm
It's probably time for Facebook to give up trying to be the morality police, because it isn't working. While nobody expects the social media giant to be perfect at policing its site for images and posts deemed "offensive", it's shown itself time and time again to be utterly incapable of getting this right at even the most basic level. After all, when the censors are removing iconic historical photos, tirades against prejudice, forms of pure parody, and images of a nude bronze statue in the name of some kind of corporate puritanism, it should be clear that something is amiss.
Yet the armies of the absurd march on, it seems. Facebook managed to kick off the new year by demanding that an Italian art historian remove an image of a penis from her Facebook page. Not just any penis, mind you. It was a picture of a godly penis. Specifically, this godly penis.
That, should you not be an Italian art historian yourself, is a picture of a statue of the god Neptune. In the statue, which adorns the public streets of Bologna, Neptune is depicted with his heavenly member hanging out, because gods have no time for clothes, of course. Yet this carved piece of art somehow triggered a Facebook notice to the photographer, Elisa Barbari.
According to the Telegraph, Barbari got the following notification from Facebook. “The use of the image was not approved because it violates Facebook’s guide lines on advertising. It presents an image with content that is explicitly sexual and which shows to an excessive degree the body, concentrating unnecessarily on body parts. The use of images or video of nude bodies or plunging necklines is not allowed, even if the use is for artistic or educational reasons.”
Even were I to be on board with a Facebook policy banning nudity and, sigh, "plunging necklines" even in the interest of education or art -- which I most certainly am not on board with -- the claim that the image is explicitly sexual and focused on "body parts" is laughably insane. There's nothing sexual about the depiction of Neptune at all, unless we are to believe that all nudity is sexual, which simply isn't true. Also, the depiction focuses not on one body part, but on the entire statue. Nothing about this makes sense.
And that's likely because Facebook is relying on some kind of algorithm to automatically generate these notices. Confusingly, the site's own community standards page makes an exception for art, despite the notice Barbari received claiming otherwise.
Strangely, an exception is made for art. “We also allow photographs of paintings, sculptures, and other art that depicts nude figures.”
Except when it doesn't, that is. Look, again, nobody is expecting Facebook to be perfect at this. But the site has a responsibility, if it is going to play censor at all, to at least be good enough at it not to censor statues of art in the name of prohibiting too much skin.
40 Comments | Leave a Comment..
Posted on Techdirt - 27 December 2016 @ 5:09pm
If there is a common theme that runs through much of the posts we do on trademark disputes, it's that the ultimate responsibility for them lies at the feet of a USPTO that's only too willing to grant privilege on words and terms when it should not. The examples of this abound, from a video game trademark on the term "candy" to trademarks being granted in the entertainment market for the word "live."
And now we can add to this list that the USPTO apparently granted a trademark for the restaurant industry to a company on the word "succotash." This came to light when that company, Knead Hospitality + Design, sent a cease and desist notice to Beth Barden, who runs a restaurant in Kansas City that goes by the name Succotash.
Barden learned via email that Knead Hospitality + Design filed a trademark registration for Succotash and requested she remove the trademark symbol from her website. But the D.C. company's move has bigger implications: The filing gives it the nationwide right to use that trademark in connection with bar, catering and restaurant services. If Barden wanted to expand or franchise outside the Kansas City area, she could be subject to trademark infringement, said Cheryl Burbach, a partner in Hovey Williams LLP, an Overland Park intellectual property law firm.
"All of a sudden, your name isn't yours anymore," Barden told the Kansas City Business Journal. "It's a little terrifying because clearly they have more money than I have, more opportunity to fight this thing than I do."
Now, notably, Barden's restaurant is over a decade old, while Knead Hospitality + Design came to be only in 2014. As such, Barden likely has all sorts of protections available to her via common law trademark rights. She has hired an attorney to fight the C&D... and to get Knead's registration cancelled. And that really should happen, because allowing a trademark in the restaurant industry that consists entirely of the name of a common dish is insane. So insane, in fact, that that's the reason why Barden herself never even bothered to attempt to register the trademark herself.
Barden said she never registered a Succotash trademark because she didn't think a common vegetable dish could be trademarked. Even so, Barden is considered a senior user who owns prior common law trademark rights in the Kansas City area. Knead filed its trademark application on March 14, 2015, well after Barden began using the name in Kansas City.
Her naiveté would be quite sweet, had it not led to her now having to pay an attorney to keep a trademark bully with a mark that never should have been granted in the first place at bay. Which brings us all the way back to the original point: if the USPTO can't be bothered to think about a trademark application for long enough to realize it never should have granted this particular mark, the time for new oversight is at hand.
22 Comments | Leave a Comment..
Posted on Techdirt - 23 December 2016 @ 9:23am
The speed with which the prevailing opinion of Denuvo, the DRM unicorn de jour, has changed has been nearly enough to make one's head spin. It was only at the start of 2016 that the software was being rolled out en masse by many game publishers, leading some normally bombastic cracking groups to predict that the video game industry had finally found its final solution to piracy. That lasted until roughly the middle months of the year, when several games using the DRM were cracked. While Denuvo's makers remained fairly silent, the opinion of it shifted from "final solution" to "hey, it's still the hardest DRM to crack." Cracking groups that typically measure their work in weeks were finding cracking Denuvo to be a project measured in months. That likely explained why so many big-ticket games still used it. Until, somewhat suddenly, multiple big-name games began dropping Denuvo from their code via patches and updates. The latest example of this was Doom silently nixing Denuvo, with id Software not even referencing the move in its patch notes.
And so the speculation began as to what was going on. Some said the game makers were finally realizing that DRM is pretty much useless at everything other than being a minor inconvenience for cracking groups and a major inconvenience for many legitimate customers. Others suggested that perhaps Denuvo offered some kind of money-back deal if a game using it was cracked within a certain time-frame. Still others claimed that publishers were only using the DRM during the initial release window of the game to protect it during the most crucial sales period, and then dropping it afterwards.
Denuvo, just recently, publicly endorsed the last theory.
“The simple reason why Denuvo Anti Tamper was removed from Doom was because it had accomplished its purpose by keeping the game safe from piracy during the initial sales window,” Denuvo’s Robert Hernandez said to me in an email. “The protection on Doom held up for nearly four months, which is an impressive accomplishment for such a high-profile game.”
Hernandez also insisted there is nothing like a money-back program if a game using Denuvo is cracked. And perhaps he's correct about why these games are suddenly dropping the DRM, although it should be clear that this theory is the best one available for Denuvo's business. The other two theories mean Denuvo is a failure. At least the idea that game publishers are using it during the initial release window allows the company to claim it's still providing a benefit to publishers.
But for how long? Given the precipitous drop in the posturing around Denuvo from "un-crackable" to "hey, we kept the game safe from piracy for a couple of months", it's reasonable to wonder why that downward trend shouldn't continue in that direction. Unless the company has some serious tricks up its corporate sleeve, it's not like cracking times are going get longer rather than shorter.
And the bigger question is one of math. If Denuvo carries negatives in its use, as its being dropped by several games clearly suggests, are those negatives really made up for by a couple of month's worth of protection? At four months, perhaps id Software thought it was. But if that protection window shrinks, there is going to be a line which, once crossed, makes Denuvo more trouble than its worth. You know, like every other DRM ever created. Denuvo's business still relies on its software being a unicorn, although one it already acknowledges has a horn much less shiny than originally believed.
8 Comments | Leave a Comment..
Posted on Techdirt - 22 December 2016 @ 5:11pm
It just won't stop when it comes to trademark disputes involving the alcohol industry. Such disputes between wine, beer, and liquor companies are legion. In such a crowded industry, it needs to be hammered home that the purpose of trademark law is not so that big companies can bully smaller companies, but rather so that customers are protected from imitation products and from being confused as to who they are buying from.
The latest such dispute is between Butterball, the turkey-selling king based out of North Carolina, and a small wine company in Australia. At issue is one of McWilliam's Wines Group's chardonnays, which the company has branded as its Butterball Chardonnay.
According to a complaint filed Dec. 12 in the U.S. District Court for the Eastern District of North Carolina, Butterball states that McWilliam’s Wines Group Ltd. “produces, sells, distributes, and imports into the United States a variety of Evans & Tate branded wines, including a type of chardonnay named ‘BUTTERBALL.’”
Butterball states that its trademarked goods and services range from turkeys and marinades to fat fryers and mobile device software. The complaint goes on to say, “The consumer goodwill associated with the BUTTERBALL Marks is one of Butterball’s most valuable assets. Accordingly, the integrity of the BUTTERBALL Marks is extremely important to Butterball and crucial to the continued vitality and growth of Butterball’s business.”
Notably absent from Butterball's list of goods and services using the Butterball trademark is anything having to do with wine in particular, or even beverages in general. And there is good reason for this: Butterball doesn't make wine. A brief look at its products page confirms what everyone already knows: Butterball makes meat products, along with a few ancillary items. In other words, when you think of Butterball, you think of turkey. It seems unlikely that the company can argue it is in a competitive marketplace with a wine seller at all, never mind that there might be any kind of customer confusion that could occur due to the name.
And the branding of both companies doesn't make confusion any more likely. Here are both brands side by side.
Yeah, the branding of the wine label looks nothing like Butterball's branding, and it has the name of the wine company clearly depicted on it. Now, I'm sure that Butterball will at some point trot out the trademark bully's favorite excuse and claim it had to file this lawsuit or risk losing its trademark, but that isn't actually true. It would only be true if there were actual potential confusion or a real demonstrable infringement within Butterball's marketplace. Neither are the case.
This lawsuit is a real turkey, in other words. I'm so, so sorry...
16 Comments | Leave a Comment..
Posted on Techdirt - 22 December 2016 @ 2:58pm
Let it never be forgotten that Nintendo hates you, Nintendo fans. The gaming giant has a long and decorated history both of anti-consumer practices, such as attempting to poison the roster of YouTuber game reviewers, bricking consoles if gamers don't agree to its post-release EULA updates, and attacking some of its biggest and most creative fans by issuing takedowns and threats for fan-made game levels, fan-made games that have barely anything to do with its IP, and shutting down fan-made remakes of games that are decades old.
Yet Nintendo has been notably lenient in some areas in enforcing its intellectual property as well. The most prominent of these would be what's referred to as "ROM hacks", in which the original Nintendo ROMs are modded to include new and original content. These ROM hacks abound and are readily available, requiring the original game (or a pirated version) in order to be used. Now, for the first time reported, one of these ROM hacks has fallen into the sights of Nintendo's lawyers.
A fan-made Pokémon ROM hack in the works for eight years was set to launch this Sunday. But a letter sent by Nintendo's Australian law firm on Wednesday has stopped those plans in their tracks. According to Adam "Koolboyman" Vierra, developer of the fan-made Pokémon Prism project, Nintendo's Australian law firm sent him a cease-and-desist letter, which he uploaded to Google Drive with identifying information redacted. (American representatives for Nintendo were not able to confirm the letter's authenticity as of press time.) The request alleges that Koolboyman's project, which alters the source ROM of the 1999 game Pokémon Gold to create an entirely new adventure, violates multiple Australian laws.
The location of all of this requires some explanation. Vierra lives in California and Nintendo's legal team is based out of the United States, but Vierra had been planning on releasing the game via Rijon.com, which is based in Australia. It was Nintendo's Australian legal team that sent the threat letter. That team has previously taken action against downloaders of pirated Nintendo games, but not on creative fans producing these kinds of ROM hacks. As noted before, the company worldwide has generally allowed these add-on mods to exist. Not so much in this case, for reasons not currently being offered by Nintendo.
But let's all not lose sight that this is a mod on a game nearly two decades old created by a fan to incorporate brand new gameplay and story elements into the existing game and engine, and was going to be offered free of charge. It's CounterStrike, in other words, except using a Nintendo product. And there are entire sites and fan-groups built around these sorts of mods. They're a boon to gaming companies by extending the life of the demand for a game for free, as fans take on the work of adding on to it in a way that still requires the original in order to play it at all.
And this isn't even Vierra's first go at this sort of thing.
Vierra himself might have assumed Nintendo would allow a Pokémon ROM hack, because his last one, Pokémon Brown, launched in 2004 with nothing in the way of dispute from Nintendo. That hack's new "Rijon" region would have been hugely expanded upon in Pokémon Prism. It would have contained other tweaks, such as Brown's special monster types (wood, gas, wind, abnormal, and sound), a tweak to the game's "clock" system, and new music compositions. (Other Pokémon ROM hack depositories are easy to find online.)
One could say that this all reeks of a legal team in a foreign country not being on the same page as the HQ back home. Except that it can also be said that expanding IP enforcement to this new front is perfectly in line with Nintendo's general heavy-handed approach to protectionism. Because Nintendo can't help itself. Because Nintendo hates you.
21 Comments | Leave a Comment..
More posts from Dark Helmet >>