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About Dark HelmetTechdirt Insider

I am a technology consultant, contributor here at Techdirt, and an author. I hope to someday get enough people reading the books I sell to garner a scathing review.

https://www.smashwords.com/books/view/112205

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Posted on Techdirt - 8 December 2016 @ 2:48pm

Bethesda Bullies One Of Its Creative Fans Over Website Metatags

from the jerk-like dept

Bethesda has something of a complicated history on our pages. The company is at once often terrible on matters of enforcing its intellectual property in a protectionist manner, while also occasionally acting quite good on matters of connecting with its fans in a meaningful and downright sweet manner. Few and far between have been the stories of those two separate philosophies intersecting, but we have such an instance now as Bethesda has demanded any Bethesda trademark words be removed in metatags on the website for DoomRL, a fan-made rogue-like inspired by the classic Doom games.


It's a strangely worded letter in a couple of respects. First, the letter seems to be focused on the use of words and/or phrases trademarked by Bethesda/ZeniMax within the metatags for the DoomRL website, as opposed to making any sort of copyright claim on the game itself. In other words, it's not at all clear from the threat letter whether or not the company is objecting to the fan-game in any way, or just the use of the metatags. If the latter, the threat makes very little sense. The text on the website doesn't mention Bethesda or ZeniMax at all and only mentions ID Software to credit it for being the creators of the Doom franchise. The trademarks that appear to be in question are references to Doom itself.

And these are a game, a website, and references that are years old. The game appears to have been in production for at least six years and has been publicized on the web for about as long. It's a game that doesn't resemble any actual Bethesda property and is instead a fan's new take on the franchise, offered for free. I don't read any objection into the game itself in the threat letter, so why make such a big deal over the use of the Doom name itself? Is Bethesda cool with a fan making a Doom inspired game, so long as that fan never mentions it to anyone?

As a result of the threat, however, creator Kornel Kisielewicz has decided to scrap DoomRL for a successor that doesn't include any Doom IP. This is about the time that defenders of copyright and trademark will chime in to suggest that intellectual property enforcement has led to the creation of new intellectual property, thus fulfilling its purpose... except that isn't really true. It's basically the same game, just with the added effort of pretending like it's something it wasn't originally. Yay?

And, more importantly, the stripping of references to Doom helps Bethesda how, exactly? What was once a native expansion of the franchise as an expression of love from a fan, one which could only serve to point new potential customers back to the original game series, has instead become something independent of that series. Kisielewicz has even started a Kickstarter for the sanitized game to now profit off of it, instead of acting as a free promoter for Bethesda's game. At best, Bethesda loses out on a free marketing vector for its Doom franchise, while at worst some in the gaming public will want to punish the company for this aggressive behavior. How exactly is this kind of IP bludgeoning a better option than working with the fan/creator?

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Posted on Techdirt - 7 December 2016 @ 6:17pm

Iceland vs Iceland Trademark Spat More Clear: Iceland Foods Opposed Iceland's Trademark Application

from the ice-ice-baby dept

We recently wrote about the strange situation going on between a British company, Iceland Foods, and the nation of Iceland. What was clear was that this spat was over the trademark on the word "Iceland" held by the grocer, which had been ridiculously granted to cover all of Europe by the EU. Iceland had initiated a petition to have that trademark revoked, prompting the company to send a delegation to Reykjavik in an attempt to work something out that would allow the company to retain its control of a trademark consisting of the name of a member of the European Economic Area. It seems that this meeting did not go as well as Iceland Foods had hoped.

"[The talks] got nowhere because it rapidly became clear that the Icelandic authorities have no interest in reaching a compromise," said founder and chief executive Malcolm Walker. "We have no real idea why this has suddenly become such a major problem for Iceland (the country)."

Which isn't exactly true, as almost in the same breath the company has acknowledged that it attempted to block an extremely benign trademark registration by the goverment of Iceland. The country had registered "Inspired by Iceland" as a trademark, only to have it blocked by Iceland Foods. The company claims it wasn't aware that Iceland's government had been behind the application it blocked, which is both difficult to believe and entirely besides the point.

That point being that the trademark the company holds is absurd in the first place, both because it is overly broad as well as consisting entirely of the name of a geographic location. And the negotiations between the company and the country, in which the company attempted to paint Iceland's government as unwilling to compromise, apparently saw Iceland Foods unwilling to budge.

On Friday, Iceland's foreign ministry said the company refused to relinquish exclusive control of the word Iceland and that it would therefore pursue legal action to invalidate the company's trademark.

"The registration of a country name that enjoys highly positive national branding to a private company defies logic and is untenable," the ministry said.

It's hard to imagine how the trademark survives Iceland's petition. Iceland Foods still says it hopes it can reach an agreement with the country, though why the country would want to negotiate at all is entirely beyond me.

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Posted on Techdirt - 7 December 2016 @ 11:45am

Copyright Troll Ordered To Pay $17k To 'Pirate' It Falsely Accused

from the the-receding-wave dept

There is a beautiful passage in Hunter S. Thompson's otherwise largely overrated book, Fear and Loathing In Las Vegas, that always stuck out to me. Speaking on the anti-war and free-love movements of the sixties, he writes:

There was no point in fighting—on our side or theirs. We had all the momentum; we were riding the crest of a high and beautiful wave. . . .So now, less than five years later, you can go up on a steep hill in Las Vegas and look West, and with the right kind of eyes you can almost see the high-water mark—that place where the wave finally broke and rolled back.

This idea of a positive movement cresting like a wave before rolling back fits other narratives as well, and not all of them positive. Whatever despair might be felt for Thompson's cause receding back into the ocean might transform into joy as we might be watching something similar happen to the scourge that are copyright trolls. They too crashed onto the scene a decade or so ago like a wave, rolling over the legal systems of many nations and drowning them and the public with lawsuits, legal notices, and threats. But perhaps that wave has also crested, given the recent actions taken by ISPs to protect their customers, by courts that have begun casting narrow glances in the trolls' direction, and by the fall of several of the more notable copyright trolls entirely.

But the real sign that things on the matter have taken a turn has always been when the copyright trolls begin facing a price for their actions. That too seems to be beginning, at least in the case of one falsely accused "pirate" who has been awarded $17k to cover his legal ordeal. The lawsuit had been over the downloading of an Adam Sandler movie at a foster care home.

The defendant in question, Thomas Gonzales, operates an adult foster care home where several people had access to the Internet. The filmmakers were aware of this and during a hearing their counsel admitted that any guest could have downloaded the film. Still, the filmmakers decided to move their case ahead, and for this decision they may now have to pay. After the case was dismissed, the wrongfully accused ‘pirate’ asked to be compensated for the fees he incurred during his defense.

In a findings and recommendations filing published last Friday (pdf), Magistrate Judge Stacie Beckerman concludes that the filmmakers went too far.

Within the opinion itself, the court noted that it agreed with Gonzales' claim that the whole point of these legal threats by the copyright troll was to extract large settlements before the trial had actually begun, which meant that the troll would levy the harshest accusations in order to make its settlement offers appear reasonable by comparison. This, despite the facts that would make the accusations clearly silly.

The Court shares Gonzales’ concern that Plaintiff is motivated, at least in large part, by extracting large settlements from individual consumers prior to any meaningful litigation. On balance, the Court has concerns about the motivation behind Plaintiff’s overaggressive litigation of this case and other cases, and that factor weighs in favor of fee shifting.

Compensating Gonzales will encourage future defendants with valid defenses to litigate those defenses, even if the litigation is expensive. Conversely, and perhaps more importantly, awarding fees to Gonzales should deter Plaintiff in the future from continuing its overaggressive pursuit of alleged infringers without a reasonable factual basis.

In those last two lines, you can clearly see a court that is entirely fed up with having its docket filled with actions brought by copyright trolls. If other courts take up the cause, the possibility of financial penalty to bringing spurious copyright suits might finally roll back the wave, as it were. That would be a huge win for the practice of justice on matters of copyright.

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Posted on Techdirt - 6 December 2016 @ 11:37pm

Amidst The Game Release Boom On Steam, It's Time For Valve To Weaponize Its Community For Curation

from the gamers-unite! dept

A review of stories here at Techdirt about Steam, the chief online retailer for digital games distribution, offers a mixed return of grades on its approach. Valve has a tricky wire upon which to balance as it seeks to protect the relationships it has with both its gaming customers and the publishers that sell their games on Steam. At times, Valve makes decisions that favor publishers, while at other times Valve's actions are quite good in terms of protecting its customers against those same publishers.

But this balancing act is going to become an issue in yet another way that revolves around the recent explosion in titles being released on the Steam platform. The excellent Steam Spy account on Twitter tweeted out the following graph, which should come as a shock to nobody with a Steam account.


Even for those of us who have noticed the uptick in games being released on Steam, I doubt most of us realized that nearly two-thirds of all the games currently on the platform were released within the past two years, or that over a third of them were released in 2016 alone. It would be silly to try to argue that such a deluge has no effect on the customer experience. An explosion in available titles adds to the workload involved for gamers searching for new titles to play, as they must weed through more titles in more genres, searching for the gems they want amongst an ever-growing number of rocks that they don't want.

And, in fact, Steam recognized this a ways back when it introduced its Steam Curators program, through which gamers can pare down game searches using curators they have come to trust for recommendations. However, the Curators program quickly managed to suffer from the same problem as the game titles deluge: there are thousands of curators, at times more than there are game titles on Steam. At some point, if Steam wants to remain useful to gamers as a platform on which to find new games, as opposed to simply buying them, it's going to have to do something to get out ahead of this.

That could take many forms, of course. The worst idea of the bunch would be for Valve/Steam itself to get involved in pimping some titles while pushing others to relative obscurity. This is a solution to the deluge problem offered in other arenas, notably in the way Apple restricts access to its iTunes platform and App Store, partially as a way to play quality police. It's not the optimal solution for two main reasons: it benefits existing entertainers more than newcomers, and it's partially the reason why Android and other music services are the preferred platform of users.

Better would be a solution that weaponized the Steam community itself, relying on reviews and feedback of both games and curators to lead gamers to "expert" curators, or something of the like. Alternatively, Steam could implement a matching system to match up gamers and curators by interest. This idea was laid out by James Beech at Gamasutra, who delightfully compared it to the matching system for dating sites.

If Valve really wants to make this system useful, they should implement a OKCupid style matching system. No really, make me fill out a one-time profile where I list my five favorite games, my five least favorite games, genres I love/hate, game elements I appreciate, (exploration, story, twitch gameplay), preferred game length, subject matter, etc. Have curators fill out a similar profile, and then generate match percentages, (just make sure it doesn't use the same match algorithm that the Discovery Queue uses; a feature theoretically far more useful than curators, if it weren't so consistently off the mark).

Anyway, all the answers would be private, with an option for curators to display theirs publically, so other users can see what those curators value. It’s not a perfect solution, but it’ll get me in the ballpark a lot quicker than manually sifting through thousands of curation pages with the same, “only great games within,” description.

Steam is going to build on its curator system at some point to battle this issue. The last thing anyone should want to see is Valve itself getting in the business of picking winners and losers, as it were. Force-feeding recommendations like that to gamers will make the problem worse, not better. Instead, they should trust their gaming customers and empower them, even more than they already have.

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Posted on Techdirt - 6 December 2016 @ 4:43pm

Israeli Government Pushes National Biometric Database With Claims Of Security Superiority Nobody Thinks Are True

from the painting-a-target dept

There has been something of a push in recent years in different countries to build biometric databases of varying degrees. These efforts are typically marred by pushback and controversy, with countries like Argentina using these databases in order to have law enforcement chill its citizenry from protests in the streets, with our very own FBI rolling out its own biometric database that lacked the promised privacy oversight with which it had been billed. Despite the fact that you can nearly set your watch to the speed with which such lists will be abused, these previous efforts at least paid lip-service to the notion that the databases would focus only on criminals in their respective countries.

That isn't the case for the decree made by Israeli Interior Minister Aryeh Deri about the plans for a new compulsory biometric database for all Israeli citizens.

Interior Minister Aryeh Deri sparked controversy Wednesday when he announced that all Israelis must join the national biometric database. Deri said everyone would be required to upgrade their ID cards and passports to "smart cards" embedded with their personal biometric characteristics, including fingerprints. The pilot biometric database was launched about three years ago and caused a public uproar, with many said they would refuse to be included.

It's amazing how things can change. The Israeli government really ought to know better than to create a database of its citizens. One might refer to it as a registration of Jewish people with the government, in a way. I seem to recall others in history creating lists of Jews and it didn't work out all that well.

Now, nobody would suggest that the Israeli government would want to persecute its own people a la Nazi Germany. Nor do we need to Godwin ourselves in this post so readily. The problem is that creating this database is akin to painting a target on the backs of the Jewish people, a people already in the crosshairs of many of their neighbors. To this, Deri and his office have responded with claims of how necessary the database is and how sure they are that they can secure it against outside hacking by terrorist groups. Few are buying the latter claim.

The Digital Rights Movement, which has been waging a campaign against the database since its inception, announced that it will file a High Court of Justice petition against the move. The group has launched a crowdfunding campaign to finance the legal battle.

"Only in Israel will it become possible to collect the fingerprints of every citizen," the group said in a statement. "Contrary to the opinions of 74 of the best information security and encryption experts in Israel, the interior minister is spinning a tall tale about how secure the database is and that it cannot be hacked -- but he is wrong. It is not for nothing that 70% of the public has refused to be included in this database."

Dr. Tehilla Shwartz Altshuler of the Israel Democracy Institute warned that "this is a problematic decision that subjects highly sensitive information to danger. Having any kind of biometric database endangers our privacy as a whole. Studies in Israel and abroad have proved unequivocally that such a database will be breached and that officials with access to it will abuse it."

Whatever use law enforcement might have in such a database surely is mitigated by the potential danger from both outside groups getting access to it or by internal abuse within the Israeli government. As the quote aboves suggests, these sorts of lists are practically begging to be abused and/or targeted. Again, I would think the goverment of Israel would be especially sensitive to the dangers here. Its citizens certainly are.

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Posted on Techdirt - 5 December 2016 @ 11:23pm

Canadian 'Fashion Santa' Fight Leads To Copyright vs Trademark Food Fight

from the deck-the-halls dept

It's the holiday season, that time of year when many people shrug off the comforting fullness surrounding the far-superior holiday of Thanksgiving for the stressful gift-bonanza of Christmas. What is billed as a time of peace and happiness too regularly instead is anything but. And it seems that Christmas itself occasionally plays a role in the tumult.

Up in Canada, a Toronto-area shopping mall and a male model are currently battling over who gets to control the rights to "Fashion Santa." Paul Mason played the role of Fashion Santa for the Yorkdale Mall in each of the past two Christmas seasons, donning white hair and a magnificent beard along with designer clothes, taking pictures with shoppers and generally being a fashionable representation of Santa Claus. After he refused to reprise his role this year, Yorkdale hired Adam Martin to fill in for him. Mason says the mall cannot do this, because he has a copyright on "Fashion Santa."

Records published by Industry Canada’s intellectual property office show that a copyright for Fashion Santa was registered to Mason on Dec. 22, 2015, and was in the works no later than September, 2014 — three months before Mason debuted as Fashion Santa at Yorkdale...Intellectual property regulations laid out on Industry Canada’s website say copyright protects works of literature, art, drama or music, and “performer’s performances.”

The problem with this is that Canada, like the United States, limits copyrightablity to expressions, not ideas. That would make any copyright on the public performance of being a "fashion Santa" limited in scope to a creative performance in the role. Mason instead seems to believe that his copyright gives him the sole right to the name and to any kind of performance for any kind of fashionable Santa. The latter just isn't the case, while the former is typically the realm of trademark law as opposed to copyright.

And, when it comes to trademarking "Fashion Santa", it seems the mall got there first.

Government records also show Oxford Properties Group Inc., which manages Yorkdale, filed applications on Dec. 8, 2015 to trademark the words “Fashion Santa,” and “Yorkdale Fashion Santa.” Mason applied for a trademark on “Fashion Santa” less than two weeks later, on Dec. 21, 2015.

At least one lawyer commenting on the dispute seems to think Yorkdale would win if this ends up in court, primarily because trademark law is more applicable.

John Simpson, an intellectual property lawyer who is not connected to the case, said a trademark could be issued to the mall even though Fashion Santa is copyrighted by Mason.

“My money would be with the mall,” he said.

Simpson said that, although a character or costume can be copyrighted, he is surprised a copyright was registered for Fashion Santa.

“A character is more than a name,” he said. “And if it’s just a name then it (should be) a trademark.”

Ultimately, even carving out a trademark space for a Santa Claus character that is only unique in that it wears fashionable clothes seems rather silly. Still, in these trying times, it seems that even Santa Claus is a battleground for intellectual property disputes. 'Tis the season, and all that.

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Posted on Techdirt - 5 December 2016 @ 4:42pm

Amazon Looking To Expand Prime Into Live-Streamed Major Sports

from the play-ball! dept

For some time now, I've been ringing the warning bell for cable television providers that the cord-cutting trend has only thus far been prevented from becoming a deluge by live sporting events. It's one thing to watch TV dramas and reality programming either in binge-fashion or streaming days after the original television airing, but live sports is still a major draw for cable TV audiences. Because of the combination of broadcast partner deals many of the leagues have worked out with cable providers and the nature of the sports product, this may be the last bastion of hope for cable TV as we know it today.

But that thread of survival continues to unravel. In the past two years or so, we've seen the major athletic leagues begin to open up on the concept of live-streaming games. The NFL was among the first of the major players to ink toe-in-the-water streaming deals, but the NBA and MLB have followed closely behind. And while those deals are meager and fragmented in terms of the streaming providers in question, it's worth noting that Amazon is reportedly targeting sports streaming generally as a way to expand its Prime product.

Amazon apparently never stops thinking about possible perks it could add to its annual $99 Prime membership, and the next feature could be live sports. A report from The Wall Street Journal suggests that Amazon is in talks with professional sport organizations including Major League Baseball, National Basketball Association, and the National Football League to negotiate the rights to stream live games and events.

According to the report, Amazon is looking at creating a premium sports package that it could include in Amazon Prime memberships. If it comes to fruition, a sports package could draw a lot of new customers to Prime, which already offers free two-day shipping, Amazon Video streaming of TV shows and movies, music streaming with Prime Music, the Prime Reading library of free e-books, and more. It would also be a big way for Prime to stand out among other streaming services, particularly Netflix, which has steered clear of sports since most people don't want to watch a football game after it's over.

The barrier to all of this, of course, is that those leagues already have broadcast deals in place with television providers. That is particularly the case with the MLB and the NBA, which both rely heavily on cable networks to broadcast their games. The NFL, on the other hand, has long partnered with the "local" national networks, CBS, NBC, and Fox. It therefore may have more room in which to wriggle into streaming sports, demonstrated by the fact that it has already done so in its Yahoo! deal. Regardless, one of the streaming titans getting into sports streaming, should it happen, should be setting off all kinds of warning bells for the cable companies.

In a time when streaming services are incredibly popular, live sports is a major reason people still pay for pricey cable packages. A good example is DirecTV, which saw a big subscriber bump when it began offering the premium NFL Sunday Ticket package.

With the market penetration for smart TVs and devices that allow streaming to be beamed to non-smart TVs, this interest by Amazon represents a major landshift in the cable TV market. Streaming services like Prime can be more nimble with pricing, as well, as they don't have to adhere to the practices of packaging undesirable content along with the channels and shows that consumers actually want. And, what's more, Amazon's interest here is likely to spur its competition to get into sports streaming as well, if only to keep up with the Amazonian Joneses.

Even if this takes a while to get rolled out due to existing broadcast contracts, the end may be nigh for cable television as it currently exists.

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Posted on Techdirt - 1 December 2016 @ 5:36pm

Who Gets To Trademark Iceland?

from the ice-ice-baby dept

When you cover enough trademark disputes, you come to expect a fairly typical pattern to them. Entity X bullies entity Y over a vaguely similar use of a mark that often times is overly broad or generic, and then there is either a capitulation to the bullying, a settlement, or the rare instance of a trial that results in an actual ruling. The outcomes aren't typically favorable for those of us that think trademark law has been pushed beyond its original intent, but the pattern persists.

But every once in a while, you find a zebra amidst the thundering hooves of horses. Such is the case with a very strange dispute currently going on between Iceland Foods, a foodstuffs retailer, and Iceland, the island nation between Greenland and the rest of Europe. Due to the retailer's aggressive protection of its trademark, which consists of a generic term preceeded by the name of a country, Iceland has petitioned to revoke the trademark Iceland Foods has on its name for all of Europe.

Iceland is challenging Iceland Foods’ exclusive ownership of the European-wide trademark registration for the word Iceland, which it says is preventing the country’s companies from promoting goods and services abroad.

The Icelandic government claims the supermarket has “aggressively pursued” and won multiple cases against companies that use the word Iceland as part of its trademark, “even in cases when the products and services do not compete”.

If true, it makes sense for the government of Iceland to protect the interests of its citizens from such bullying. The larger point of this, however, is that the absurdity of granting a trademark, for all of Europe no less, to a single company on the name of a country forces a dispute where there should not be one. While we could spend time analyzing if Iceland Foods is being too aggressive in its trademark protectionism, or whether the Icelandic government is trying to bully the retailer back with threats over the trademark being removed, we should instead just spend our time trying to figure out who approved this trademark in the first place and then fire that person.

But overly broad or generic trademarks don't qualify as zebra stripes in a trademark story. Having a trademark holder send a delegation to a national government to try to work something out, however, probably does.

The supermarket’s founder and chief executive, Malcolm Walker, said on Tuesday: “A high-level delegation from Iceland [Foods] is preparing to fly to Reykjavik this week to begin negotiations, and we very much hope for a positive response and an early resolution of this issue.”

The retailer’s company secretary and legal director, Duncan Vaughan, will be leading the delegation in the next few days, but it will not include Walker.

Walker said: “We registered Iceland as our company name in 1970 and we have coexisted with the country called Iceland very happily ever since. They have made no contact with us to raise any concerns about trademark issues since 2012. We have no desire whatsoever to stand in the way of Iceland the country making use of their own name to promote their own products, so long as it does not conflict or cause confusion with our own business. I am sure there is ample scope for an agreement that will allow both parties to continue to live and work amicably alongside each other.”

If that all seems quite congenial, it's likely because the retailer knows how ridiculous it is that it has this trademark to begin with. The ridiculous scenario in which a food company sends emmissaries to a national government to negotiate the continued monopolistic use of that nation's name is fully brought to you by a European Union IP Office in need of a severe attitude correction.

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Posted on Techdirt - 30 November 2016 @ 4:30pm

Game Developer Updates Game To Remove Denuvo DRM As Fans Cheer

from the better-late-than-never dept

Denuvo, as you will recall, is the name of a modern version of anti-piracy DRM, foretold to be the end of video game piracy, when the reality is that its legend exceeded its capability. While we've begun to see an uptick in stories of game developers actively limiting or excluding the use of DRM in their games, those stories tend not to be about Denuvo DRM. Many have taken this to be an indication of Denuvo's strength and usefulness, even if it isn't 100% effective.

But now we do indeed have a story about a game developer that had initially included Denuvo in its game, only to yank it via a patch at a later date.

Nowadays, most talk of DRM revolves around titles that add the “anti-tamper” tech known as Denuvo, thus preventing piracy of those games. That’s what makes the latest update to side-scrolling puzzle game Inside so unusual: the developers have chosen to do away with Denuvo.

Playdead did not give a reason for the removal of Denuvo in the short patch-notes, though it’s worth noting that the game was also recently released on GOG—which is marketed as a digital storefront that does not believe in DRM.

Which is one of the ways that GOG is most useful. Like a popular candidate on the extreme end of the political spectrum, the success and popularity of GOG serves to yank what might otherwise be a near-uniform desire to use DRM by game developers back to a more reasonable position. If developers see GOG as a good platform for selling their games, even with the site's virulent anti-DRM stance, then it stands to reason that DRM generally isn't worth including in their games. That this is starting to become the calculation for what was supposed to be the DRM unicorn is a positive development, though one wonders just how much money Playdead wasted including it in the first place.

Meanwhile, fans of the game are celebrating Playdead's decision. Some are even actively promoting the game to friends and family, or buying other titles by the studio, all as a result for removing an annoyance to legitimate customers.

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Posted on Techdirt - 29 November 2016 @ 5:17pm

Your Earbuds Can Be Made Into Microphones With Just A Bit Of Malware

from the mic-drop dept

Hyperconnectivity has many positive aspects for many of us, though there are negatives as well. One of the negatives that come along with connectivity is the idea that everything we love can be used to spy on us. Back when prevalent criminal hacking was in the arena of science fiction and broad government surveillance was limited to thematic elements in Orwell novels, the public fear over security exploits like this was limited. Given that the alphabet agencies continue to be shown to use our devices to spy on us, however, Americans likely look more warily at their favorite technology than they did a decade ago. Everything, it seems, is a vector for an invasion of your privacy.

Including, potentially, your headphones. Israeli researchers have shown how, with the aid of some malware, your headphones can be converted into microphones in order to listen in on whatever you happen to be doing.

Researchers at Israel’s Ben Gurion University have created a piece of proof-of-concept code they call “Speake(a)r,” designed to demonstrate how determined hackers could find a way to surreptitiously hijack a computer to record audio even when the device’s microphones have been entirely removed or disabled. The experimental malware instead repurposes the speakers in earbuds or headphones to use them as microphones, converting the vibrations in air into electromagnetic signals to clearly capture audio from across a room.

“People don’t think about this privacy vulnerability,” says Mordechai Guri, the research lead of Ben Gurion’s Cyber Security Research Labs. “Even if you remove your computer’s microphone, if you use headphones you can be recorded.”

And, just like that, I'll never look at my favorite set of earbuds the same way again. What this ultimately points out is that determined hackers will find creative ways to use our own devices against us. That isn't new. What is new seems to be the never ending reports of how devices, be they IoT devices or not, can be repurposed for nefarious ends. The use of all of this by our own government, as well as our government's request for backdoors built into technology, only increases the threat vectors for this type of thing.

This particular exploit relies on ubiquitous RealTek codec chips, which can be instructed by the malware used to switch an output channel to an input channel. Those chips are everywhere and there is no current method to secure them via a patch or update.

There’s no simple software patch for the eavesdropping attack, Guri says. The property of RealTek’s audio codec chips that allows a program to switch an output channel to an input isn’t an accidental bug so much as a dangerous feature, Guri says, and one that can’t be easily fixed without redesigning and replacing the chip in future computers.

Until then, paranoiacs take note: If determined hackers are out to bug your conversations, all your careful microphone removal surgery isn’t quite enough—you’ll also need to unplug that pair of cheap earbuds hanging around your neck.

When even our headphones are a potential enemy, the world has gone mad.

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Posted on Techdirt - 28 November 2016 @ 5:15pm

Prince Estate Sues Tidal, The Streaming Service That's Kind To Artists, For Copyright Infringement

from the wave dept

When Jay-Z's music streaming service launched nearly two years ago, it put forth two key selling points. One was exclusive releases that would only be available on Tidal. The other was a promise as to how artist-friendly it would be. In the wake of the froth-filled mouths of many other streaming services like Spotify and Pandora, Tidal would be a shining example of how a streaming music platform could be built that would be successful while being fair to the musical artists whose work it streamed. This has failed on both levels. On the question of being successful, Tidal's launch was a fizzle, and the news into this year isn't particularly encouraging, with subscriber accounts reportedly being a fraction of that of other streaming services. And, of course, because Tidal is a music streaming service, lawsuits and claims by artists that they were not being fairly compensated began rolling in almost immediately.

And they haven't ended. According to reports, the estate of Prince is suing Tidal for copyright infringement, claiming that Tidal is streaming Prince's catalog without authorization.

Prince’s estate is suing Roc Nation for copyright infringement, claiming that Tidal does not have permission to stream large portions of Prince’s catalog. The lawsuit, first reported by the StarTribune, accuses Jay Z’s company of illegally adding 15 additional albums from Prince’s catalog to its offerings back in June.

Both Roc Nation and Prince’s estate acknowledge the initial agreement between Prince and Roc Nation that gave Tidal the right to exclusively stream HitNRun: Phase 1 for 90 days, but that’s where the agreement ends.

Now, Roc Nation claims that it received authorization to stream the fifteen albums in question, both verbally and in writing. And, hey, maybe that's true. But if it is, it's clear that Prince's estate has not been shown any of this paperwork. In addition, the estate is claiming that an advance owed to Prince by Tidal was never paid, either. It would be strange for the estate to have the paperwork that everyone agrees authorized some Prince music, but somehow not have the paperwork authorizing the other fifteen albums.

Which isn't really the point. The real point is that setting up a streaming service on claims that it would be so friendly to artists so as to avoid this kind of thing was doomed to fail from the beginning. It's in the nature of the music industry and its convoluted business arrangements and licensing terms to pull the rug out from internet streaming services. You can set your watch by it. Perhaps now those at Tidal might have some sympathy for their competition.

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Posted on Techdirt - 28 November 2016 @ 12:56pm

Jayme Gordon Guilty On All 4 Counts Of Wire Fraud In Scheme To Sue Dreamworks For Copyright Infringement

from the wires-crossed dept

It was somewhat breathtaking back in 2011 to see the multiple accusations of copyright infringement brought against Dreamworks' movie Kung Fu Panda. While none of the suits appear to have stuck, the case brought by Jayme Gordon stood out, first because it certainly looked, based on his evidence, that he had a somewhat strong case, and then later it became clear that his evidence against Dreamworks was actually a bullshit con he'd trumped up after likely infringing on previous works by Disney. The quick version of the story is that Gordon altered some drawings he'd done previously to look more like artwork in a trailer he saw for Kung Fu Panda, where those original drawings were essentially recreations of art from a Disney coloring book. He also tried to hide all of this by deleting files off of his computer so that they wouldn't be found during discovery, an endeavor that worked about as well as a flotation device made entirely out of stone. Jesus, this world is a strange place in which to live.

Regardless, as Tim Cushing noted in his post above, the U.S. Attorney's Office in Boston filed wire fraud charges against Gordon because his attorneys emailed requests for discovery and settlement offers across state lines as part of his scheme. These charges, which come from the same office that prosecuted Aaron Swartz, looked for all the world like charges stacking. Except this particular U.S. Attorney's Office tends to follow through on the charges.

Which brings us to the present, in which Gordon has been found guilty on all four wire fraud charges and is in serious trouble.

Jayme Gordon, 51, was convicted today by a federal juryon four counts of wire fraud and three counts of perjury. U.S. District Court Chief Judge Patti B. Saris scheduled sentencing for March 30, 2017. The charge of wire fraud provides for a sentence of no greater than 20 years in prison, three years of supervised release, a fine of $250,000 and restitution. The charge of perjury provides for a sentence of no greater than five years in prison, three years of supervised release and a fine of $250,000.

Let's be clear that the wire fraud charges, when compared to how other U.S. Attorney's Offices tend to handle these things, are purely punitive. The manner in which these offices tend to prosecute wire fraud is one fraught with variance. It tends to come down to whether or not that particular office really wants to hammer the defendant, rather than the law being equitably applied across the entire constituency. Put another way: isn't the five years in prison and quarter-of-a-million dollars fine ample punishment for what Gordon did?

However you want to answer that question, it seems likely that his sentence will be far greater than that. Even if he serves a fraction of the possible 25 years in prison, it's likely to be in the double digits. Gordon is by no means a likable character, but that seems out of whack.

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Posted on Techdirt - 23 November 2016 @ 2:53pm

Electronic Arts Unveils New Policy For Marking YouTube Videos As 'Supported' Or 'Advertisement'

from the huh dept

While the past few years have seen a torrent of criticism heaped on the video game journalism world, far too little of it has been focused on the cozy contractual deals being worked out between publishers and YouTube personalities that review games. With some of these arrangements having come to light, most notably concerning Nintendo and Warner Bros. games coverage, it's fairly safe to assume that many other publishers do something of this sort. These arrangements work something like this: the game publisher will offer access to the games for review by the YouTuber, so long as the YouTuber agrees to offer generally positive reviews to the product. The YouTuber benefits by being first to market with reviews, the publisher benefits from positive coverage, and the public gets spit in the eye while losing their trust in the personalities they have followed. Add to it all that some of these arrangements fail to follow FTC guidelines on marking paid-for material and you're left with the inevitable understanding that this is an arrangement that can only last for a short period of time, as the public trust in the reviewers will torpedo to the point of losing the audience completely.

It's devolved to the point where even companies from which we've come to expect the worst are trying to get out ahead of all this. Electronic Arts, for instance, best known for its annual rivalry with Comcast over the "Worst Company" award, has developed a new policy for marking YouTube videos produced under this arrangement that is actually quite good.

In a post on EA’s German news blog (translated by NeoGAF), EA announced that they’re stepping up their disclosure game by contractually requiring content creators to disclose with EA-provided hashtags and watermarks. The watermarks are pictured above. I reached out to EA in North America, and they confirmed that it’s a company-wide thing, though some rules vary by region.

“Supported by EA” is to be used in situations where EA has paid for access to the game (travel, review copies, etc), but did not influence the video/stream itself. “Advertisement,” on the other hand, is exactly what it sounds like: EA provided material or directly influenced the direction of the content’s, um, contents.

The disclosure logos themselves, seen at the link, are simple and clear. It's actually the exact kind of transparency we would hope for. No longer should potential customers wonder if a review has been influenced in any way by EA, or even if EA has taken some actions to ingratiate itself to the reviewer. It's clearly labeled.

Now, we'll have to see how this ends up working in practice. Questions remain, such as how big the logos will be, whether YouTubers will take things a step further and call attention to the disclosures, or if nefarious omissions of the disclosure logos will occur. But in concept, it's quite good, and perhaps not the kind of thing we would expect to be pioneered by EA. So good on them.

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Posted on Techdirt - 22 November 2016 @ 5:10pm

Adidas Can't Trademark 'Adizero' Because A Small Chicago Church Sold Two 'Add A Zero' Hats To Someone In Wisconsin

from the carry-the-one dept

Just when you think you've seen it all in trademark disputes, a story comes along and slaps you across the face with its silliness. Quite often, I find myself writing in support of small groups staving off trademark bullying by big corporate entities. This has far less to do with any hostility to big business than it does with the fact that trademark bullying is a tactic more commonly employed by big business than small business or individuals. But that isn't always the case and I am certainly not above galloping to the rescue of a huge corporation with so much cash in its coffers that it would make Scrooge McDuck would blush.

For more than half a decade, sports apparel giant Adidas has been trying to trademark "Adizero" as a brand in the United States. It has been unable to do so solely because a small church based in Chicago has a trademark on the phrase "Add a zero" for clothing, and it appears that enough people think this is enough of a problem to hold up the trademark application.

Since 2009, the German sportswear giant has been attempting to federally register its “Adizero” mark but has been unable to due to existing trademarks held by the Chicago-based church, including one that extends to clothing, "namely, shirts, and caps." Initially, the U.S. Patent and Trademark Office (“USPTO”) refused adidas’ trademark application because of its similarity to the church’s own "Add a Zero" trademarks - the first of which was registered in 2006. According to the USPTO, consumers were likely to be confused due to the similarity of the two parties' trademarks.

On its face, this concern seems to be quite silly. For starters, one of these marks is a phrase in plain English, while the other is a fanciful portmanteau of sorts that seems to be made up of whole cloth. I'm not even sure the pronunciation for both marks is the same if spoken aloud, but certainly anyone seeing image branding of both side by side would not be rendered dumbstruck in confusion. When one adds to this that one of these entities is a famous brand likely to have its three-striped logo plastered all over an Adizero sportswear, while the other is a confessing Christian organization, this all begins to sound silly.

For its part, Adidas filed a motion with the USPTO in an appeal to have the church's marks cancelled entirely, arguing both that the church's marks don't really act as any kind of source indentifier and that the church isn't actually using the marks consistently in commerce. The USPTO's Trademark Trial and Appeal Board agreed and cancelled the marks, noting that the church's interstate commerce had amounted entirely to it selling two hats to somebody in Wisconsin. It was on the use in commerce question alone, it's worth noting, that the TTAB made this decision.

The church actually appealed this ruling, saying that the meager duo of hat-sales did represent use in commerce... and the Federal Circuit agreed.

Judge Kara Farnandez Stoll stated on Monday that the Lanham Act's definition of "use in commerce" includes any activity that Congress could regulate under the Commerce Clause. Sale of clothing to an out-of-state buyer "falls comfortably within" that definition, Stoll wrote in the decision joined by Judges Jimmie Reyna and Todd Hughes.

The Federal Circuit refused to require a specific number of transactions to meet the "use in commerce" standard. To the extent that the TTAB's own decisions may conflict with that rule, they are expressly overturned, the court held. The Federal Circuit sent the case back to the TTAB for consideration of other arguments raised by adidas.

Here's hoping that the TTAB finds in favor of Adidas on the other arguments. Meanwhile, apparently two sales qualifies for use in commerce for trademark purposes. Quite a standard we're setting.

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Posted on Techdirt - 17 November 2016 @ 4:44pm

Gone To Pot: The Toronto Maple Leafs And Snoop D-Oh-Double-G In Trademark Spat

from the trademark-was-the-case-that-they-gave-me dept

Usually, when trademark disputes get silly, the side bringing the silly is some big corporate entity and the side receiving the silly is some small group or individual with little hope of defending itself. I mean, I'm certain this trend isn't because trademark is too often used as a bully-cudgel. That's just an unfortunate coincidence.

But the trademark dispute that serves as the subject of this post is slightly different. On one side, we have the large corporate entity that you've come to expect: Maple Leaf Sports and Entertainment, the company that owns the NHL's Toronto Maple Leafs. But MLSE's target is not some no-money lightweight. Nope, it's this freaking guy.


photo credit: Eduardo Gabriel CC BY ND


Yes, I'm talking about Snoop Dogg. Because 2016 is the universe's attempt to show us what a silly dystopia would actually look like, the Toronto Maple Leafs are attempting to block Snoop's trademark application for his medical marijuana company, Leafs By Snoop.

Rapper and entrepreneur Snoop Dogg is facing a trademark showdown with a Canadian ice hockey team over the logo of his LEAFS BY SNOOP marijuana product line. In August, Maple Leaf Sports & Entertainment (“MLSE”), which owns the Toronto Maple Leafs, requested an “extension for time to oppose” a number of trademark applications in connection with Snoop’s mark, and has subsequently followed up by filing a formal trademark opposition with the Alexandria, Virginia-based Trademark Trial and Appeal Board (“TTAB”) – a body within the U.S. Patent and Trademark Office (“USPTO”) responsible for hearing and deciding certain kinds of trademark cases, including oppositions.

At chief issue is the use of the word "leafs", which isn't a real word, because the plural of "leaf" is "leaves." The Maple Leafs contend that they have used this non-word for all the years and that its "leafs" mark is super-distinct and unusual, such that anyone seeing its use elsewhere will think there is a connection to the hockey team. Snoop's use of the word, combined with his logo (seen below), create a likelihood of confusion for medical marijuana customers that will surely think that the Canadian hockey team is pimping weed, according to the team.

Ok, let's start off with the obvious rebuttal: "leafs" isn't anything remotely resembling highly distinctive or unusual. It's an everyday word with the letter "s" appended to it. While I was pretty sure of it, I actually had to look it up on dictionary.com to make sure it wasn't actually a word. As for the logos... come on. Not only do they not resemble one another in any meaningful way, both logos have the source identity literally spelled out within them. The chances of any customer confusion here are roughly nil, even allowing for the fact that the customers in question might be extraordinarily high.

The post goes on to note that both sides are communicating with one another to resolve this, even as the opposition was filed. It will be interesting to see what end befalls a baseless trademark suit when the other side actually has a fighting chance due to money and stature.

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Posted on Techdirt - 17 November 2016 @ 11:55am

Why Twitter's Alt-Right Banning Campaign Will Become The Alt-Right's Best Recruitment Tool

from the control-alt-delete dept

If there are two points worth hammering home on matters of free speech, they are that defenders of free speech must be willing to defend speech they don't like and that the solution to bad speech is more good speech. I would argue that Western democracy as a whole can be defined as a political version of the Socratic Method, by which the electorate engages in public debate, constantly questioning the other side, in order to produce the most optimal thoughts. For those that value this method of discourse, it's instantly recognized that it only works if you have opposing views. To that end, it's imperative that we not only allow, but feverishly welcome, different points of view.

But this kind of thinking is currently under assault in America, and from both sides. The latest example of this is Twitter's recent decision to carpet-ban an entire slew of accounts linked to the so-called "alt-right" movement.

The social media platform has suspended accounts of several high-profile users associated with the alt-right movement, CBSNews.com reported Wednesday. These include Richard Spencer, Paul Town, Pax Dickinson, Ricky Vaughn and John Rivers.

Spencer, among those suspended this week, has been a leader in the alt-right movement since creating a website for it in 2010. He's president of the National Policy Institute, which describes itself as "dedicated to the heritage, identity, and future of people of European descent in the United States," and has been described as a white supremacist.

Let's get some caveats out of the way. First, Twitter is a private entity and can refuse participants in this manner if it likes. Nothing about this violates any kind of law. Second, many of the accounts in question did give voice to speech and ideas that are the most putrid form of racism and identity politics. This is not optimal thinking or speech. And, where accounts were used to actually harrass and abuse others, we can leave our outrage at the door.

But that isn't the case with all of these accounts. Even Spencer, a leader of this racially-charged speech, has not been found to do any sort of harrassing. Yet his account and that of his website were banned as well. In other words, many of these bans appear to be motivated primarily, if not solely, by idealogy as opposed to any actionable abuse. And that's a bad idea for a number of reasons.

First and foremost, it legitimizes one of the main claims of the alt-right movement: that it suffers censorship within the marketplace of ideas.

It’s precisely the perception of arbitrary and one-sided speech policing that drives so many young men toward radical, illiberal politics. On campus especially, but also in the corporate world—and now on social media—they perceive that wild and wacky things can be said by some people, but not by others. By useful comparison: On the very same day that Twitter suspended the accounts of some alt-right users, DePaul University forbade a scheduled appearance by the broadcaster and writer Ben Shapiro. Shapiro is not an alt-rightist; in fact, the Anti-Defamation League reported last month that Shapiro is Twitter's single most frequently targeted victim of anti-Semitic abuse by alt-rightists. But Shapiro is a scathing polemicist and provocateur—an alumnus of the same Bannon-Breitbart empire that incubated Milo Yiannopoulos—and DePaul expressed worry that his appearance on campus might provoke violence.

The culture of offense-taking, platform-denying, and heckler-vetoing—now spreading ever outward from the campuses—lets loudmouths and thugs present themselves as heroes of free thought. They do not deserve this opportunity.

Bad ideas, if they are indeed bad, are susceptible to attack from good ideas. Unless we now think that American culture as a majority would line up with alt-right thinking, the only weapon needed against such thinking is a better alternative line of thinking. If we instead take Twitter's lead and simply try to put a lid on speech we don't like, it will only serve to solidify the feeling of victimization amongst those speakers, while leading others to seek them out to find out what all the fuss is about. Strangely, it might be Americans' natural tendency to want to stick up for victims of injustice that lead some to join the ranks of those that would spread injustice to others. And this would be supercharged by companies like Twitter leaning on censorship, achieving the opposite result of its intention. That's not a good strategy.

The other problem is that it's difficult to cease going down this censorship road once you've begun. And if the arguments of small-"l" liberalism are so weak that they cannot combat ideas we think are bad, then our arguments are bad and we should think up new ones. But trying to silence others isn't the answer. Look at every major step forward on matters of social justice, be it the end of slavery, economic progress, secularism or LBGT rights, and you will find they all have something in common: an opposition. It's already been proven that good speech can defeat bad speech, and that good ideas can defeat bad ideas. That's all we need. We don't need to be coddled by our social media networks and we cannot win a fight we never are able to have.

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Posted on Techdirt - 16 November 2016 @ 5:06pm

Music Composer For 'A Clockwork Orange' Sues Australian Who Created 'A Trumpwork Orange' Parody Trailer

from the like-clockwork dept

One of the tests for fair use as it pertains to copyright is the impact that the use of a work has upon the original. While this is but one of four tests used, it is arguably the most important when it comes to advising a rights holder on whether or not to move forward with any legal action. After all, regardless of whether the use of the work is indeed fair use, what would be the point of taking action against the use of a work if that original work were not negatively impacted, or if the impact was positive? There would seem to be no point to expending any time or capital in a legal fight in those cases, yet we regularly see such thinking ignored.

Such is the case concerning Hugh Atkin, an Australian who produced a parody trailer in the style of A Clockwork Orange for President Elect Trump's campaign, entitled A Trumpwork Orange. He originally put it alongside the original movie's trailer, basically to show how he tried to ape the style for his parody. That version was taken down, however, and now we're left with only this version.


Now, when I say that a DMCA notice was filed to get the video taken down, you would be forgiven if you assumed that it had come from our new overly-litigious overlord. But it didn't. Instead, it came from a company that represents Wendy Carlos, the composer behind the soundtrack for A Clockwork Orange. She is the one who created that version of the William Tell Overture featured in the trailer, and she has decided that Atkin needs to license her work to create his parody. In fact, after Atkin filed a DMCA counter-notice and had the video restored, the company representing Carlos went ahead and filed a lawsuit against him in retaliation.

In a lawsuit filed in a New York district court, Serendip LLC is now suing Hugh Atkin for the unlawful use of Carlos’ music in his one minute video.

“Unbeknownst to, and without permission or license from Serendip, Defendant made derivative use of Wendy Carlos’s music arrangement and master sound recording works of the ‘William Tell Overture’, in the soundtrack of Defendant’s video, entitled ‘A Clockwork Trump vs. A Trumpwork Orange’,” the lawsuit reads.

It adds that Atkin uploaded the video around October 23, 2016, “with the apparent purpose of monetizing the video for his own benefit, and with his later stated purpose of ‘providing satirical political comment on the 2016 US Presidential Election campaign of Donald Trump’.”

It's worth noting that the parody video was not levying parody on the song in the trailer, which actually hinders any defense in the name of parody and fair use. Still, we're left with the question of what the impact on the original work, Carlos's iteration of the William Tell Overture, was. It's pretty clear that any claim that this original work was harmed by Atkin's parody would be head-scratching at best. Other versions of the original movie trailer exist on YouTube, after all, and this new parody work even included the original trailer alongside the new creation. It seems that this usage impacts the original work only by maintaining the status quo. And yet Carlos decided to sue.

Interestingly, Atkin wasn't even aware of the lawsuit until TorrentFreak contacted him.

“I did not know that Serendip had commenced proceedings against me. I only found out about the suit via your email, which was a rude shock to wake up to on a Monday morning in Sydney. The complaint has not yet been served on me,” he said.

“I received an email from lawyers for Serendip on October 29 in relation to the takedown notification which had been given by Serendip to YouTube under the DMCA and my counter-notification.

“I responded by letter on October 30 requesting further information about the alleged claim of infringement and otherwise denying any infringement. I never received a response to my letter, and my video was restored to YouTube last week. From their failure to respond, I assumed that Serendip was not pursuing its claim.”

As the TorrentFreak post notes, this isn't the first such lawsuit filed by Serendip. It previously filed a lawsuit against a man in the UK, who used some of Carlos' music in a movie critique of Stanley Kubrick films. That lawsuit is reported to have ended fairly amicably. One hopes that this one will, too.

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Posted on Techdirt - 11 November 2016 @ 7:39pm

The Spanish Government The Latest To Try To Ban Memes

from the u-mad-bro? dept

It would be sort of fun to watch the more authoritarian governments of the world attempt to combat internet memes with censorship if it weren't both so damaging to the free speech ideals I hold so dear and if recent, ahem, events weren't making these stories hit a little closer to home than they would have but a few months ago. Countries like Russia and Indonesia have both taken steps to attempt to make illegal the time-honored tradition of putting up a famous person's picture and then typing words across it. Despite both governments' insisting that these legislative attempts are all to do with protecting people's honor and/or quelling false information about the subjects of these memes, the truth is that the aims behind them are more to do with clamping down on dissident speech and protecting those in power from criticism. That, indeed, is why these laws tend to be worded so vaguely. Vague enough, in fact, that it's quite clear that they can be used to criminalize pretty much any speech that the ruling government doesn't like.

And joining in on this fascist fun now is Spain, which is attempting to criminalize memes in the vaguest manner possible.

The scheme was put before Congress and would see restrictions placed on “spreading images that infringe the honour of a person,” referencing a 1992 law that is now outdated due to the emergence of the internet. PP politicians want the new ruling added to the unpopular Citizen Security Law, which was introduced in 2015 and places curbs on public protests, social media commentaries and disrespecting the police. It has been referred to as “the gag law” by critics.

Let's just drive that point home: the Spanish government is considering an addition to a wildly unpopular law designed to keep people from voicing their displeasure at the government that would further criminalize people voicing their displeasure at the government. This isn't so much the ruling Spanish party putting its fingers in its own ears and shouting "La la la, we can't hear you", as it is putting the barrel of a gun in its detractors' mouths and shouting the same thing. It's a terrible idea for remaining in power, which is why I assume there are no ostriches running federal governments.

To drive that point home, it seems the PM Rajoy found himself quickly the subject of many memes as a result of banning memes.


And...


Seniorita Streisand, at the government's service, it seems. The good news in the case of Spanish meme-makers is that there is some confidence that this law won't be passed due to the ironically slim support the Popular Party has in the government.

They may not find it so easy, however, since they hold only 137 of the 350 available parliamentary seats after the PP finally received approval for a second term thanks to support from liberal party Cuidadanos, leaving Rajoy with the weakest mandate in Spain's recent political history.

Free the meme, Spain. Free the meme.

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Posted on Techdirt - 11 November 2016 @ 3:51am

Take Note: Copyright Troll Gets Stiff Response From Someone It Tried To Bully, Immediately Runs Away

from the bully-the-bully dept

It should be well-known by readers of this site that copyright trolls are essentially bullies. They send out their settlement threat letters, hoping to extort money from a public that typically doesn't know better than to be terrified by the legalese claims within the letters. It's a practice fraught with deception, as the evidence referenced in the letters typically amounts to nothing more than an IP address -- which itself may or may not be correct -- while the threats themselves can often times include consequences not remotely plausible. Still, the bullying goes on, because it works enough to make it profitable.

That's why it's important to highlight how these bullies tend to respond when a target decides to stand up to them. Much like the bullies we've had in our personal lives, they tend to run away as quickly as possible. One recent example of this is James Collins, who received a troll letter from LHF Productions, the company behind the movie London Has Fallen. The company accused Collins of both downloading the movie via BitTorrent, as well as then making it available to others via the same means. Rather than acquiescing, however, Collins got himself a lawyer and had him punch back.

In a letter obtained by the troll watchers over at DieTrollDie, Collins’ lawyer J. Christopher Lynch informs LHF lawyer David A. Lowe of this stance in no uncertain terms.

“As Mr. Collins told you in his letter dated October 6, 2016, he is innocent. Mr. Collins was asleep on the date at the time the Amended Complaint accuses him of being ‘observed infringing’,” Lynch writes. “Likewise, Mr. Collins has no secondary liability because he never aided, directed, facilitated, benefitted from, or shared in the proceeds of any violations of the law by anyone. We are optimistic that your client and its foreign representatives will see the wisdom of dismissing Mr. Collins. We recognize this requires ‘taking our word’ that Mr. Collins is wholly innocent, but, believe me, he is, just like he told you he is."

That bit about foreign representatives is important. Many of the companies that send out these threat letters rely on foreign groups to do the IP address tracking on which the threats rely. Any ancillary "evidence" of the infringement is typically also compiled by these foreign groups. That's actually something of a problem for the copyright troll, as the foreign group then becomes the "witness" to the infringement, and witnesses both can be called into court to testify and, in the case of those acting as investigators, face licensing requirements in some areas. Lynch further hammers this home in his letter to LHF Productions.

“Your client’s foreign representatives could have complied with Washington law by hiring a licensed investigator to corroborate the foreign investigation in real time, since the purported location of the entrapped IP addresses is known,” he writes. “But your client’s representatives chose not to invest in compliance with Washington law, and are taking a chance that somehow the foreign witness to the ‘observed infringing’ can testify, and that somehow the entrapped ‘blip’ of the movie in question will be sufficient evidence of U.S. copyright infringement.”

Had everything been done on the level by the copyright troll and its foreign associates, this language ought to have had no impact on the troll's actions. Good evidence and a justifiable case deserves its day in court, after all. That makes it all the more telling what LHF Productions did instead.

As noted by DieTrollDie, that threat proved too much for LHF Productions. The company dismissed the case against Mr Collins in preference to being put under the microscope. There are probably very good reasons for that and ones that other recipients of threatening letters should consider exploring.

Remember, friends, bullies tend to run away when someone stands up to them. If the majority of the public were aware of stories like these, copyright trolling would stop due to its lack of profitability.

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Posted on Techdirt - 10 November 2016 @ 7:52pm

Winery Seeks Declaratory Judgement After Garden State Parkway Threatens It With Trademark Suit Over Logo

from the exit-stage-trademark dept

Last year, we discussed a really dumb trademark lawsuit against two guys running a pizza company brought by the Garden State Parkway, of all things, because the pizza company's logo was a clear homage to the GSP logo. You see, the two pizza-making guys were originally from New Jersey, and so thought that fashioning their company logo as a tribute to their shared roots was a good idea. The GSP seemed to think that this amounted to trademark infringement, despite the fact that managing the New Jersey Turnpike and slinging delicious pizza pies are fairly distinct marketplaces. A federal judge disagreed with them, however, and dismissed the lawsuit.

That hasn't stopped the Turnpike Authority from threatening others, it seems. A winery, one that also uses labels that are a clear homage to the GSP logo, is seeking a declaratory judgement that it too is not committing trademark infringement after it had received a cease-and-desist letter.

Old York Cellars of Ringoes filed a declaratory judgment action against the New Jersey Turnpike Authority, which operates the Parkway, after receiving a cease-and-desist letter from the agency over the look-alike logos. The dispute highlights a spate of cases where government entities have acted to trademark intellectual property.

The Garden State Parkway logo was registered with the U.S. Patent and Trade Office, but the lawyers for Old York Cellars argue that the statute creating the highway agency does not permit licensing of its intellectual property because it is not an activity related to transportation. Old York also says federal regulations prohibit intellectual property protection for traffic control devices. The public is unlikely to be confused between a highway agency and a business that makes wine, even if the state's trademark is valid, Old York said in its complaint.

And, just to add to all of that, the logos in question are far less similar in this case than they were in that of the pizza company. Here are both, side-by-side so that you can judge for yourself.


I get that the colors are the same, but much of the rest is rather distinct. Not to mention that the names of both organizations are featured prominently and in large font on both logos. Does the Turnpike Authority really want to argue that there is a likelihood of public confusion here? As though the public in New Jersey would walk into a liquor store and somehow think that the same group running the Turnpike is also selling wine? Really?

I would expect that the court would find in favor of the winery for declaratory judgement. Certainly any actual trademark suit brought by the Turnpike Authority would likely be similar enough to the one it brought against the pizza company to end with the same result.

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