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About Dark Helmet Techdirt 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.




Posted on Techdirt - 20 March 2019 @ 8:02pm

Unknown Nintendo Game Gets Digitized With Museum's Help, Showing The Importance Of Copyright Exceptions

from the lost-history dept

Roughly a year ago, we wrote about how museums were requesting an exception to the DMCA's anti-circumvention provisions in order to preserve online games. While the Librarian of Congress has already allowed for exceptions for preserving non-online games, the request led to pushback by the Entertainment Software Association, which indicated preserving online games would be copyright infringement. Nintendo is a member of the ESA and the gaming giant was at the same time going around to ROMs sites all over the internet and either threatening them with legal action or scaring them into shutting down. This happened all while Nintendo also released several retro consoles, essentially cashing in on the nostalgia that the emulation sites had kept alive for the past decade or so.

All of which is to say this: Nintendo is not generally friendly to the idea of preserving Nintendo games via digitization that it does not control itself. Standing in contrast to that is the recent discovery of an otherwise essentially unknown Nintendo game from 30 years ago that, upon discovery, was swiftly digitized for posterity.

When UWC—a NES game that had been hidden from the world for 30 years—was uncovered last week, one of the first orders of business was getting the game off a cartridge and into the digital realm so that it could be properly preserved.  The new owner of the game, Stephan Reese, aka Archon 1981, said as much last week, and that job has now been completed thanks to the efforts of the Video Game History Foundation.

Saying “we were more than happy to lend our expertise and digitize the game for its owner”, the VGHF haven’t just ripped the game, but also went and finished it (as in, played to the end, not finished development), uploading gameplay footage to YouTube so we can all see some more of UWC in action.

Were it not for the exceptions that allowed the VGHF to have helped Reese out, the game could quite easily have been lost to history. Perhaps more importantly, if the general posture of companies like Nintendo led someone like Reese to believe the illegality of this wasn't even worth questioning, the world may never have seen this game at all. And, whatever you think of the importance of gaming to our culture, it cannot be argued that this would have been a cultural loss concerning the history of a popular entertainment medium.

These exceptions to copyright law are very, very important. This is just one of many examples as to why and yet another reminder that the pervasive culture of ownership and restriction carries with it a danger to literally everyone else who is living or will live. That danger is the potential to lose parts of our culture and history.

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Posted on Techdirt - 19 March 2019 @ 3:33pm

Report: In Bollywood, Movie Piracy Is Largely Carried Out By Rival Publishing Houses

from the inside-job dept

To hear it from the film industry writ large, a certain picture is painted in one's head when film piracy is discussed. That image is of a person, typically young, perhaps living in Mom and Dad's basement and covered in Cheetos dust, illicitly downloading film after film for their personal enjoyment, cackling evilly all the while. And, hey, personal downloading that amounts to infringement is certainly a thing.

But it's not the only thing. In India, where Bollywood has often put out the same old story about the evils of piracy, and where the government recently ramped up criminal penalties for recording or transmitting films and audio, one newspaper has comments from within the industry that suggest much of the film piracy in question is specifically enabled by rival publishing houses.

According to a Tamil cinema DVD seller, who spoke on the condition of anonymity, piracy is mostly an inside job. The source explains that movie companies are leaking each other’s films, as a competitive move.

“People from rival production companies or those from the creative department secretly release the movie online or circulate it as DVDs to hit the collection at the box office,” the source said.

This sounds like a Wild West story, but the allegations don’t stop there. Another source said that the local censor board and distribution houses are also on the piracy bandwagon.

“Another industry source said insiders in the censor board and distribution houses sell these copies for up to `5 lakh. The copies are uploaded on private portals that have dedicated passkeys,” the Times of India reports.

None of this specifically excuses downloading a film illicitly, of course. However, it most certainly does call into question the industry claims that piracy is by and large harming the wider film industry. If that were true, then these industry insiders uploading cam-footage and other films of recent releases would be committing self-inflicted wounds. Doing so would make little sense, were the larger claims of the industry true.

Amazingly, this goes even further down the chain, supposedly. These insiders work with theater owners to get these recordings, rather than movie-going citizens.

When it comes to recording video and audio at movie theaters, it is believed that some movie industry insiders work in tandem with theater owners to leak high profile films. As a result, some films appear online just hours after their official premiere.

So we have multiple layers of India's film industry facilitating the infringement of that industry's films to harm the competition, all while the studio heads and government say that it really hurts the entire film industry. If all of this is true -- and it's definitely an "if" --, it would appear that Bollywood is very busy harming itself for reasons that can't be explained.

Other than to say that the industry's hand-wringing is overblown, of course.

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Posted on Techdirt - 18 March 2019 @ 8:01pm

Monster Energy Loses Trademark Opposition As UK IPO Mentions That The Letter 'M' Isn't Distinctive

from the m-kay dept

Monster Energy: is there no trademark opposition they can't lose? The drink company, which might be more well known at this point for its trademark bullying than its beverages, has been handed loss after loss after loss after loss in trademark oppositions to everything from industrial paint manufacturers to the NBA and on to other beverage companies. Why the company spends so much time opposing trademarks is literally anyone's guess, but the losses all amount to the complete lack of potential confusion in the disputed trademark applications, as well as Monster Energy believing it can control words and images that it most certainly cannot.

The latest of these, in yet another opposition Monster Energy lost, has the UK's IPO explaining to Monster Energy that it cannot prevent other companies from using the letter "M" prominently in their logos.

In a decision on Wednesday, March 6, the UK IP Office ruled that Monster Energy could not stop Robert Marchington from registering a trademark, finding there was no likelihood of confusion.

In its opposition, Monster relied on its earlier registered marks (EU numbers 2439068; 3227041; 12924973 and 14226765) which depict animal or monster scratch marks that create the letter ‘M’. The mark was for a pair of legs which took the shape of the letter ‘M’ and seemed to be taking a step forward.

In its decision the IPO said Marchington’s applied-for mark and Monster’s trademarks were visually similar only to a low degree. It said that the presence of the letter ‘M’ in both parties’ marks “does not convey any particular meaning”.

The fact that Monster Energy needed to be told as much serves as a wonderful barometer for how ridiculous Monster Energy trademark oppositions generally are. Again, when it comes to trademark law, the entire point is to prevent public confusion as to the source of goods. Monster Energy's logo is indeed distinctive, as it makes the letter "M" out of claw marks. This does not somehow grant exclusivity to the letter "M" to Monster Energy, however. Legs and clawmarks, in other words, are different.

As are the markets of soft drinks and alcohol, according to the IPO.

“Whilst soft drinks and alcoholic drinks are similar in nature in that they are both liquids for consumption, consumers will consider them to be different categories of goods,” the IPO said.

Additionally, it said that “syrups and preparations”, covered by Machington’s mark, cannot be considered a finish drink product, and therefore will not be in competition with Monster’s beverages.

I continue to be baffled as to how paying all of these billable hours, or the salaries and benefits for the in-house legal team, just to handle the load of trademark oppositions that routinely end up as losses, makes any financial sense.

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Posted on Techdirt - 18 March 2019 @ 1:35pm

Apple Objects To Norway Political Party's Logo Claiming Potential Customer Confusion Over Trademark

from the politics-equals-commerce? dept

Apple has a long and storied history of playing make believe that only it can, in any way, use the image of an apple in any sort of branding. Despite trademark laws around the world generally being built on the notion that branding must be used in commerce, must be in a related industry, and must cause or have the potential to cause confusion in the public, Apple's lawyers have generally demurred on the subtle aspects of these laws. This has led to disputes with small German cafes, with Chinese food manufacturers, and with pharmacies. It can be said without question that such disputes initiated by Apple are specious at best, but it can at least be said in Apple's defense that each of those cases involve a foe that was a private, commercial business.

Such is not the case when it comes to Apple's recent trademark opposition of the logo of a political party in Norway.

Bryn Aarflot, a Norway-based patent and intellectual property prosecution firm representing Apple in the matter, formally objected to Fremskrittspartiet's trademark registration in a letter dated Feb. 26. Apple claims the political party's mark could be confused with five of its own registered trademarks. Further, the logo resembles or incorporates elements of well-known, established branding and is thus in violation of Norway's Trade Marks Act.

Registered with the Norwegian Industrial Property Office last November, Fremskrittspartiet's trademark overlays stylized "FR" iconography on a large red apple, complete with black stem and green leaf. The design is reminiscent of Apple's trademark, a two-dimensional rendering of an archetypal apple silhouette.

Is it really, though? Doing a Google image search, below is about as relevant a logo as I could find for Apple Inc.

And below is the image registered by Fremskrittspartiet.

Are those logos really so similar? Even if another Apple logo that is slightly more similar exists, are they really likely to be so similar so as to cause confusion that isn't born of the fact that Apple's logo is... an apple? And if we then layer on top of that the fact that this logo is being used by a political party and not a private enterprise, then what is the validity for this opposition at all? Did the party register the mark for the kinds of goods you'd expect a political party to produce, such as buttons and t-shirts and the like? Yup. Is anyone in Norway going to think any of that indicates that Apple had endorsed this political party, or was somehow now in the political party arena? Come on.

So this now all is pending a response from Fremskrittspartiet. If that response is anything other than, "Are you freaking kidding me?", I will be sorely disappointed.

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Posted on Techdirt - 14 March 2019 @ 7:57pm

Japanese Government Puts Restrictive Copyright Amendments On Hold Over 'Internet Atrophy' Worries

from the delay-delay-delay dept

Call me surprised. We have been recently discussing a proposal in Japan to alter copyright law in the country to criminalize every single instance of copyright infringement, rather than saving any of that for the civil courts. The bonkers proposal would take the current law, in which all instances of copyright infringement on movies and music carry criminal penalties and expand that to essentially all copyright infringement everywhere. This would include screenshots, posting lyrics to songs, and the like. Shortly after all of this was announced, a large group of Japanese academics wrote an open statement to the government indicating their concern that allowing the new law to move forward would result in an extreme chilling effect on internet usage in the country. At the time, I said it was a litmus test for whether the government would take any objection to the law seriously, tame as it was. It was also likely clear that I wasn't optimistic.

Well, surprise, the government has actually put the proposal on hold out of a concern for the very chilling effects those academics raised.

The planned copyright amendments were set to be submitted to the Diet on March 8, 2019 but according to local sources, Japan’s ruling Liberal Democratic Party (LDP or Jimintō) put the brakes on the proposals the day before they were due to be submitted.

Reports suggest that the party had such serious concerns over the scope of the law that its implementation might mean that “use of the Internet would be atrophied.”

Prime Minister Shinzo Abe reportedly held a telephone call with Keisya Furuya, the former National Public Safety Commissioner and chairman of the bipartisan MANGA (Manga-Animation-Game) parliamentary group on March 6, 2019. According to AnimeNewsNetwork, this led to the decision to remove the proposals from the agenda.

And so the law now goes back to the Ministry of Culture, Sports, Science and Technology for further discussion. The ultimate fate of the law is yet to be decided, of course, but this should be encouraging for the pessimists among us (Hi!) that tend to believe these restrictive laws in favor of content companies always get railroaded through no matter the people's protest. In this case, at least, it seems that protest worked.

Part of that may be because, again, those objecting to the law did so on only the mildest grounds.

Scholars and other experts are suggesting that the best route is to only criminalize actions that cause real financial damage to content owners.

The general consensus among the academics is that making infringement criminally punishable may be acceptable, but only when full copyright works – such as movies, music, manga publications, and books – are exploited in their entirety.

Which, you know, okay. That's probably still too onerous, but at least it's a step back from the truly insane route Japan was on.

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Posted on Techdirt - 14 March 2019 @ 11:58am

Security Researcher Discovers Flaws In Yelp-For-MAGAs App, Developer Threatens To Report Him To The Deep State

from the shooting-the-messenger dept

Even a cursory look at past stories we've done about how companies treat security researchers who point out the trash-state of their products would reveal that entirely too many people and companies seem to think shooting the messenger is the best response. I have never understood the impulse to take people who are essentially stress-testing your software for free, ultimately pointing out how the product could be safer than it is, and then threatening those people with legal action or law enforcement. But, then, much of the world makes little sense to me.

Such as why a Yelp-for-MAGA people should ever be a thing. But it absolutely is a thing, with conservative news site 63red.com releasing a mobile app that is essentially a Yelp-clone, but with the twist that its chief purpose is to let other Trump supporters know how likely they are to be derided when visiting a restaurant. This is an understandable impulse, I suppose, given the nature of politics in 2019 America, though the need for an app seems like overkill. Regardless, the app was released and a security researcher found roughly all the security holes in it.

On Tuesday, a French infosec bod, going under the Mr Robot-themed pseudonym Elliot Alderson and handle fs0c131y, notified 63red that it had left hard-coded credentials in its Yelp-for-Trumpistas smartphone application, and that whoever built its backend APIs had forgotten to implement any meaningful form of authentication.

Alderson poked around inside the Android build of the app, and spotted a few of insecure practices, including the username and password of the programmer, and a lack of authentication on its backend APIs, allowing anyone to pull up user account information, and potentially slurp the app's entire user database. It's also possible to insert data into the backend log files, we're told.

In other words, what 63red meant to build was an app to let Trump supporters know where they can go to feel safe. What it actually built was an app that tried to do that, but instead exposed user information to anyone who wanted to mine for it or, say, build a list of Trump supporters for reasons that could be entirely nefarious. Not great.

Nor was the reaction from 63red, which decided that Alderson pointing out its shoddy work warranted a threat to refer him to the FBI, AKA the Deep State.

"We see this person’s illegal and failed attempts to access our database servers as a politically-motivated attacked, and will be reporting it to the FBI later today," 63red's statement reads. "We hope that, just as in the case of many other politically-motivated internet attacks, this perpetrator will be brought to justice, and we will pursue this matter, and all other attacks, failed or otherwise, to the utmost extent of the law."

63red described the privacy issues as a "minor problem," and noted that no user passwords were exposed nor any user data changed.

For his part, Alderson took the threat of an FBI referral in full stride. Far from quaking in his boots, he simply pointed out that 63red's security was so non-existent that he didn't need to commit any crimes to do what he did.

"The FBI threat is a threat, I didn’t do anything illegal," he told The Register. "I didn’t break or hack anything. Everything was open."

And now this whole story is getting far greater coverage due to the threat than it would have had 63red simply, you know, secured their app based on the freely given information provided by a white hat security researcher.

I'm sure the folks using this app couldn't feel more safe.

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Posted on Techdirt - 13 March 2019 @ 4:04pm

Big Fair Use Win For Mashups: 'Oh, The Places You'll Boldly Go!' Deemed To Be Fair Use

from the set-phasers-to-fair-use dept

It's been roughly two years since we last had any update on the lawsuit that was brought by the estate of Dr. Seuss against ComicMix, a group of artists that created a mashup book in the styles of Dr. Seuss and Star Trek. The suit was over trademark and copyright rights, with the court ruling against the estate two years ago on the trademark claim. At the time of the ruling, the court gave the estate two weeks to prove there was any real harm done on the copyright side, after already ruling the trademark uses were fair use. Given the context of the judge's comments in the request, it was clear the Suess Estate had a hell of a hilll to climb.

A hill that now, nearly two years on, appears to have been insurmountable, as the firm representing ComicMix has announced that it has prevailed on the fair use copyright claims as well.

On March 12, 2019, after more than two years of litigation, the United States District Court for the Southern District of California (DSE’s home court) gave a learned, thoroughly reasoned decision that strongly affirms the fair use doctrine. District Judge Janis L. Sammartino reaffirmed her earlier findings that Oh, the Places You’ll Boldly Go! is a highly transformative work that takes no more from the Dr. Seuss books than necessary for its purposes. Under those circumstances, she found that DSE could only defeat the fair use defense by demonstrating that publishing the book would be likely to cause market harm to DSE, and she found that it failed to do so, leaving its claims of market harm simply hypothetical.

As for the trademark claims, Judge Sammartino had already found that the First Amendment protected the use of the title of Oh, the Places You’ll Go! in the title of the Defendants’ book. At the summary judgment stage, she determined that there is no such thing as a trademark in an artistic style, and that DSE does not have an enforceable trademark in the typeface used for the title, so the use of a Seussian typeface for Oh, the Places You’ll Boldly Go! is not trademark infringement.

The ruling itself is, as the law firm states, thoroughly reasoned. It takes the requests for summary judgement from both parties in turn, before taking on the question of fair use itself. Again, the analysis here is detailed, but the court's central ruling is whether or not Boldly interferes with the Seuss' works marketability:

Further, the Court is not persuaded that Boldly “has the same intrinsic purpose and function as Go!,” i.e., “providing an illustrated book, with the same uplifting message that would appeal to graduating high school and college seniors,” see Pl.’s MSJ at 17, or that Defendants “act[ed] in bad faith.” See id. at 17. While Boldly may be an illustrated book with an uplifting message (something over which Plaintiff cannot exercise a monopoly), it is one tailored to fans of Star Trek’s Original Series. See, e.g., Duvdevani Decl. Ex. 2 at 67:1–68:3. Further, that Defendants discussed the necessity of a license and determined that Boldly was a “fair use parody” without seeking the advice of counsel does not amount to bad faith.

The court then turns to the nature of the use of the original work. The court had originally ruled for ComicMix's motion to dismiss specifically on the question of how Boldly used Seuss' work, noting that the use of the work was both not a complete copying of the original and that it was obviously infused with new meaning. The Seuss Estate then argued that Oracle America Inc. v. Google LLC resolved that mashing two properties together in the way that Boldly does would not result in a work suddenly becoming fair use if the copying of the Seuss work was deemed to be substantial.

The court was not impressed.

Examining the cover of each work, for example, Plaintiff may claim copyright protection in the unique, rainbow-colored rings and tower on the cover of Go! Plaintiff, however, cannot claim copyright over any disc-shaped item tilted at a particular angle; to grant Plaintiff such broad protection would foreclose a photographer from taking a photo of the Space Needle just so, a result that is clearly untenable under—and antithetical to—copyright law.

But that is essentially what Plaintiff attempts to do here. Instead of replicating Plaintiff’s rainbow-ringed disc, Defendants drew a similarly-shaped but decidedly nonSeussian spacecraft—the USS Enterprise—at the same angle and placed a red-and-pink striped planet where the larger of two background discs appears on the original cover. See Duvdevani Decl. Ex. 31, ECF No. 115-11, at 450. Boldly’s cover also features a figure whose arms and hands are posed similarly to those of Plaintiff’s narrator and who sports a similar nose and eyes, but Boldly’s narrator has clearly been replaced by Captain Kirk, with his light, combed-over hair and gold shirt with black trim, dark trousers, and boots.5 Id. Captain Kirk stands on a small moon or asteroid above the Enterprise and, although the movement of the moon evokes the tower or tube pictured on Go!’s cover, the resemblance is purely geometric. Id. Finally, instead of a Seussian landscape, Boldly’s cover is appropriately set in space, prominently featuring stars and planets. Id. In short, “portions of the old work are incorporated into the new work but emerge imbued with a different character.” See Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792, 804 (9th Cir. 2003).

It goes on and on, but you get the idea. What this ultimately represents is a fantastic ruling for anyone interested in the flourishing of mashup-style cultural output. The kind of creative output that is Boldly, with its transformative meaning and messaging, but utilizing other original works to drive the point home, is certainly an art form onto itself. A ruling other than this one could have murdered that art form in its infancy.

And that isn't the purpose of copyright law, as this court wisely noted.

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Posted on Techdirt - 12 March 2019 @ 8:02pm

German Football League To Try Novel Antipiracy Strategy Of Actually Having Legal Alternatives For Its Content

from the whoa-whoa-whoa dept

Of all the antipiracy strategies on offer for the content industries, we've always promoted the having affordable, legal, and convenient alternatives as the best of them. As study after study after study has shown, one of the primary motivators for copyright infringement is a lack of reasonable access to the content legally. Why this is such a hard lesson to learn is anyone's guess.

The popular German football league, Bundesliga, recently, and finally, came to the conclusion that the first step in competing with piracy of its games is to, you know, actually compete with it. The post starts off by mentioning how many of the larger football/soccer leagues are looking at site-blocking as the best tool for combating piracy. Bundesliga, however, apparently only recently realized that no legal alternative for many fans exists.

While several big leagues in Europe would also like to have these kinds of blocking tools at their disposal, it’s blatantly obvious that they can’t compete with piracy if they aren’t offering customers what they want legally. It’s a sentiment shared by Arne Rees, executive vice president of strategy for Germany’s powerful Bundesliga.

“One of the best defenses against [piracy] is certainly having legal product everywhere,” Rees said, as cited by SportsVideo.org. “If a fan simply can’t get you, their mind-set is, I want to watch it, and, if only a pirated stream is available, they will justify that. At the very least. we have to create an environment where legal product competes with the illegal product. The legal product will always be the better product,” Rees added.

The legal ways for fans to get Bundesliga games today is through a complicated series of streaming services across 200 countries that are rife with blackout restrictions, blackouts of the most important matches, or in some cases full restrictions for accessing any games at all. None of this is convenient or done with ease, making the simple matter of finding an infringing stream of a game the superior option. In cases where literally no option is available for a game, the league isn't competing with piracy at all. It's not even attempting to.

It's resulting in sympathy even from some unlikely sources.

A report by Aftenposten last month detailed how fans were shut out of the key match between Everton and Manchester City so turned to pirate streams instead. Sarah Willand, Communications Director at TV 2, said the company understands the dilemma faced by fans.

“We would be happy to broadcast all the matches so that people see everything from the Premier League,” Willand said. “I therefore understand people’s frustration, it’s annoying not to be able to watch their favorite team on TV when you have a subscription.”

It should go without saying that sports leagues and their broadcast partners are in the business of serving their customers, not annoying them. All the scare tactics about how dangerous pirate streams are in terms of malware, or pleas centering around their illegality, aren't doing much to deter their use. What certainly would do the trick is making sure fans have affordable and convenient ways to access all the content they want, rather than playing some insane game of streaming russian roulette.

This, of course, is completely illegal and to some extent probably hurts the earning potential of the various leagues around Europe and their broadcasting partners. However, it’s clear that the companies involved have the power – if they so choose – to solve this problem by offering all content, to all people, wherever they are, at a fair price.

Given the tangle of licensing agreements across dozens of regions, this is much – much – more easily said than done, few people will argue with that. But the cold, hard truth is that most fans don’t care. If they can’t get matches legally (and particularly if they already have an underperforming subscription service), many will feel justified turning to the high seas.

It's true: fans don't want to hear that offering real alternatives is hard because the tangled web of licensing deals struck with broadcasters makes it so. It's time for leagues like Bundesliga to start serving fans what they want. And it's nice to see they're finally realizing it.

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Posted on Techdirt - 6 March 2019 @ 8:07pm

Swiss Supreme Court Refuses To Order ISPs To Block 'Pirate' Sites

from the silver-lining dept

Site-blocking is now officially a thing in many corners of the world, with rightsholders using the court system to restrict access to sites they complain are "pirate" sites. Between that practice and legislation being introduced by many countries in the full throes of regulatory capture, in which moneyed interests convince politicians to protect their own antiquated modes of business over the interests of the every day citizen, the censoring of the internet and the opening of wide avenues of potential abuse are in full swing.

But this isn't the case everywhere. In Switzerland, for instance, some specifics in how that country operates have led its courts to do things differently. For one, Switzerland is not a member state of the EU, and so it is not bound by the same rules as most other European nations. In addition to that, Swiss copyright law is such that personal downloading or streaming of content, even if unauthorized, is not illegal. Both of those specifics came to a head when film company Praesens-Film asked the courts to order Swisscom, an ISP, to block what it said are pirate sites. The court refused. Praesens-Film decided to appeal the decision until it eventually reached the Swiss Supreme Court. That court, too, has now refused to order the blocking of pirate sites.

“In order for Swisscom to be obliged to block the Internet sites in question, it would need to be a participant in a copyright infringement by third parties, by making a legally relevant contribution to it. That’s not the case,” the Court wrote this week.

The Court agreed that the operators of the sites in question (and the companies making the movies available via hosting services) are breaking the law, but it refused to connect the ISP to those infringements.

“[S]wisscom can not be accused of making a concrete contribution to these copyright infringements. The activity of Swisscom is limited to offering access to the worldwide Internet,” the Court added. “The films are not [released by Swisscom] but released by third parties from unknown locations abroad. These Third parties are neither customers of Swisscom nor are they otherwise in a relationship with them.”

Frankly, this is as it should be. The job of the ISP is to provide internet service. It's right there in the name. It is not the job of the ISP to play copyright police throughout the world and to restrict access to sites based on the claims of an entertainment industry that has showed itself to be wholly inept at determining what is a "pirate" site and what isn't. While the court pointed out that legislators could go ahead and change copyright law in the country, the law as written wouldn't justify this kind of censorship request.

The infringements in such cases are not only carried out by pirate sites, they’re also carried out by the customers of ISPs, who illegally stream or download copyrighted content to their home connections. In Switzerland, however, downloading or streaming content – even when that content is from an unlicensed source – is not illegal.

“[T]here is no copyright infringement on the part of the users,” the Court said. “Copyright law allows this use of published works for personal use, regardless of whether the source is lawful or unlawful. Legislators rejected the copyright revision, which would have prohibited the duplication of works from illegal sources for their own use.”

It would be nice if these versions of copyright laws could be exported throughout the world, if only to disrupt the gross censorship of the internet that has already begun and will only get worse now that that door has been cracked open. While the infringement of copyright sucks for the rightsholder, that pain doesn't justify a tidal wave of site-blocking across a public that, by and large, doesn't commit copyright infringement. It appears that understanding that personal downloading and/or streaming is not something worth addressing in the criminal code is at least one antidote to site-blocking.

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Posted on Techdirt - 5 March 2019 @ 7:57pm

Judge Refuses To Hand The Government Biker Gang's Trademark

from the mongolian-beef dept

If we were ever to hand out some kind of award for a trademark dispute due to both its insanity and longevity, surely that award would go the US Government's attempt to strip the Mongols, a motorcycle gang, of its trademark. This whole thing actually started way back in 2008, with the government arresting several Mongols members for all manner of crimes ranging from extortion to murder. On top of prosecuting these cases and the gang, it requested it be allowed to seize the Mongols trademark on its logo, reasoning that this would allow them to simply strip any members of any biker gear that displayed the logo, even though that isn't what trademark allows one to do. This somehow continued several years later, when the remaining members of the gang claimed the group collectively owned the trademark in question, meaning that the government couldn't simply take control of it.

And, amazingly, this whole thing continues to today. It looked for all the world that this case was finally going to wrap up with the trademark being handed over to the US Government. In a jury verdict, the jury had ordered exactly that to happen. To the suprise of many, however, the judge overseeing the case stepped in and disregarded that part of the judgement, arguing that it would violate the First Amendment.

Denying Mongol members the ability to display the logo on their leather riding jackets and elsewhere would overstep the right to free expression embedded in the 1st Amendment, as well as the 8th Amendment’s ban on excessive penalties, U.S. District Judge David O. Carter found.

“There is a realistic danger that the transfer of the rights associated with the symbol to the government will have a chilling effect,” Carter wrote.

The government's request relied on likening the trademark the Mongols had on its iconography as property of the same kind as its guns and contraband, suggesting that the logo was a chief tool of a criminal enterprise. Forfeiture laws are not typically used in this way, and it was quite clear that the government was attempting to stretch all kinds of definitions as a way to cripple every last bit of a biker gang that is indeed quite infamous. Still, the judge rightly notes that the bar with regard to the First Amendment is quite high, and allowing the government to essentially strip speech in this way would be both unconstitutional and would create a chilling effect on speech more generally.

The judge said 1st Amendment issues were undeniably at play because the type of trademarks the Mongols own, called collective membership marks, don’t serve any commercial purpose but only help members to identify themselves as part of a group.

And because the jury had found the logo was tied directly to the conspiracy charge but not the murders and other violent crimes with which the club was accused of participating, Carter concluded forfeiting the trademarks would violate the Constitution’s 8th Amendment, which forbids the government from imposing excessive punishments.

Denying members control over the logo would be an “unjustified and grossly disproportionate” punishment, he wrote.

And, so, the gang gets to keep its logo, though the government has announced it may appeal this specific decision. It really shouldn't, though. Already the biker gang has been convicted of multiple crimes, from rackateering to murder. Going after the trademark again, even after all of these years, is pretty clear overreach.

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Posted on Techdirt - 4 March 2019 @ 8:08pm

Chicago Tried To Justify Not Informing ACLU Of Social Media Monitoring Partner By Saying ACLU Is Really Mean

from the the-chicago-way dept

My home city of Chicago has built quite a reputation for itself to date. It wouldn't be entirely unfair to suggest that the city's government is run by very silly people who think its citizens are quite stupid, while also managing to build something of a kleptocracy centered around professional corruption. With any such hilariously corrupt institutions, the corruption itself is only half the frustration. The other half is the way the Chicago government thumbs its nose at virtually everyone, so secure is it in its knowledge that its corruption will never result in any serious penalty.

An example of this can be found in the way the city government responded to an ACLU FOIA request to disclose the vendor Chicago is using to monitor the social media accounts of its own citizens. If you're thinking that such a program sounds dystopian, welcome to Chicago. If you're thinking there's no way that the city should be able to hide that information from its citizens and that it was obviously disclosed publicly somewhere, welcome to Chicago. And if you thought that a FOIA request must surely be all that it would take to get this information to the public, well, you know the rest.

The ACLU of Illinois today called for an end to an invasive program that allows Chicago police to monitor the social media accounts of the City’s residents. The call comes after the City finally released records Wednesday revealing the name of the spying software that the Chicago Police Department (CPD) has used to covertly monitor Chicagoans’ social media profiles.

The release was through litigation filed by the ACLU last June in Cook County Circuit Court seeking to force the City to produce documents in response to a January 2018 Freedom of Information Act (FOIA) request. The ACLU was represented by Louis A. Klapp at Quarles & Brady LLP in this request. Previously, CPD acknowledged that it spends hundreds of thousands of taxpayer dollars on social media monitoring software, but refused to provide the name of the software company.

Now, spending hundreds of thousands of dollars on a platform to monitor the social media activity of its own citizens is bad enough on its own. After all, this isn't the first go around with Chicago doing this very thing. In 2014, Chicago contracted with a different company, Geofeedia, to do exactly this sort of social media monitoring. After the ACLU learned of that relationship and disclosed that Geofeedia marketing materials targeted "activists" and "unions" as "overt threats" for which its platform should be used for monitoring, the reaction of the public was severe enough that many social media sites simply disallowed Geofeedia access from their platforms, rendering them useless to Chicago government.

In fact, it was that very occurrence that Chicago used to justify hiding its vendor relationship from the ACLU currently.

Social media sites then subsequently cut off Geofeedia’s access to their users’ data. The City claimed that this public reaction justified hiding future vendors from public view.

What the ACLU was able to get out of the city is that it used another company, Dunami, for surveillance through 2018. The ACLU has filed another FOIA request to get any information on a current contract, if one exists. Meanwhile, the above reasoning -- that Chicago should shield the vendor it uses to monitor the social media habits of its own citizens because the last time the ACLU got that info people didn't like it -- is the kind of reasoning only the most brazenly corrupt regimes could possibly make.

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Posted on Techdirt - 1 March 2019 @ 3:40pm

NZ Study Yet Again Concludes That Piracy Is A Function Of Price And Ease Of Access

from the no-kidding dept

With rates of copyright infringement fluctuating year by year, and country by country, the end result is a debate that goes on as how to best keep rates trending downward. One side of this argument urges a never ending ratcheting up of enforcement efforts, with penalties and repercussions for infringement becoming more and more severe. The other side of the argument suggests that when content is made available in a way that is both convenient and reasonably priced, piracy rates will drop. A decent number of studies have been done that show the latter is the actual answer in this argument, including a study done last summer, which showed innovative business models fare far better than enforcement efforts.

Yet it seems it's going to take a compounding series of these studies to get the point across, so it's worth highlighting yet another study that has come out of New Zealand that concludes that piracy rates are a function of pricing and ease of access to content.

According to a new study commissioned by New Zealand telecoms group Vocus Group NZ and conducted in December 2018, this enhanced availability is having a positive effect.

“Legitimate streaming content providers are achieving what was impossible for Hollywood to get right: they are stamping out piracy by making available the shows people want to enjoy at reasonable cost and with maximum convenience,” Vocus announced this morning.

The company believes that “piracy is dying a natural death” as more locals choose to access content legitimately, via legal services that are both accessible and easier to use than pirate options.

“In short, the reason people are moving away from piracy is that it’s simply more hassle than it’s worth,” says Taryn Hamilton, Consumer General Manager at Vocus Group. “The research confirms something many internet pundits have long instinctively believed to be true: piracy isn’t driven by law-breakers, it’s driven by people who can’t easily or affordably get the content they want.”

We internet pundits have also speculated in past discussions that piracy rates probably have some sort of natural floor to them. In other words, rates aren't going to be 0% and it would be unreasonable both to expect them to be, or to attempt to conjure such fantasy rates into existence through legislative efforts. Instead, content providers need to figure out the sweet spot in pricing and ease of access that reaches or approaches that natural floor. Once they have done so, the job is complete. And, rather than having to worry about which enforcement effort to attempt next, content makers can spend their time instead both creating more content and counting all of their money.

And, as Vocus points out, this is already beginning to occur organically.

“The big findings are that whilst about half of people have pirated some content in their lives, the vast majority no longer do so because of the amount of paid streaming sites that they have access to,” Hamilton added in a video interview with NZHerald.

Indeed, the company’s study shows that 11% of consumers now obtain copyrighted content via illegal streaming platforms, with around 10% downloading infringing content via torrent and similar services.

“Generally the survey has said that the vast minority of people are undertaking piracy – it’s just too hard. People prefer to pay for good quality, cheap, legal content, so we think that’s the best way forward,” Hamilton said.

That convenience is the "RtB" portion of the Cwf+RtB equation. Convenience is worth paying for, as demonstrated by thousands of people that are demonized as just wanting something for free, but who nevertheless subscribe to all kinds of content services and otherwise buy all kinds of content. It's a contradiction worth noticing, assuming that creators want payment above control.

Meanwhile, Hollywood's New Zealand representatives instead want to pretend that none of this data even exists.

In January 2018, the Motion Picture Distributors’ Association, which represents the major Hollywood studios in New Zealand, said that “nothing” can be done to tackle piracy in the country other than site-blocking. Vocus, however, is opposed to this type of action.

That's the kind of lazy attitude only government lobbying could allow. In the real world, there is a great deal that Hollywood could do to tackle piracy, if only they were willing to try.

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Posted on Techdirt - 28 February 2019 @ 7:55pm

Strike 3's Lawyer Sanctioned By Court, Excuses His Actions By Claiming He Can't Make Technology Work

from the strike-1 dept

When it comes to the art of copyright trolling, part of that art necessarily pretends that all potential victims of the trolling effort are assumed to be masters of both technology and copyright law, such that they are both responsible for what goes on with their internet connections and that no action they take could possibly be a forgivable accident. These assumptions operate across the victim spectrum without regard to the the victim being of advanced age or incredibly young, or even whether the victim is sick or lacks the mental capacity to carry out the supposed infringement. The assumption in just about every case is that the accused is fully responsible.

Which is the standard that then should be applied to Strike 3 Holding's lawyer, Lincoln Bandlow, who had to go to court to explain why he and his firm failed to provide a status update on 25 cases, despite the court ordering he do so, and was forced to explain why he thinks the court shouldn't just sanction him. Barlow attempts to explain this all away as a simple matter of he and his firm not being able to make their technology work.

The most recent sanctions hearing in Sacramento came as a result of Bandlow and Strike 3 failing to provide a status report related to at least 15 cases within a 45-day period. On Jan. 2, Magistrate Judge Carolyn Delaney ordered Strike 3 to explain why it shouldn’t be sanctioned $250 for missing those deadlines. At least 25 Strike 3 cases are at issue on Wednesday, according to a search of Strike 3’s court dockets.

Bandlow said in court filings that Strike 3 failed to file the status reports because it had “encountered issues with its calendaring procedure” for cases in U.S. District Court for the Eastern District of California. He also said the filing mistakes were in part due to a lack of staff during the holidays and an inability to receive emails from the court.

In a separate interview, Bandlow complained that this whole issue is ridiculous, since he claims that in his copyright trolling cases there would be very little about which to update the court after a mere 45 days. He also blamed the failure to provide these status updates on his firm's spam filter. The claim is, apparently, that the firm's spam filter blocked several emails from this specific court. In addition, he and his firm also had issues using this specific court's docketing software.

None of which, mind you, would have been valid excuses were this one of Bandlow's copyright cases. You can practically hear one of Strike 3's victims proclaiming that they weren't sure how to set up proper security on their wireless access point to make sure others couldn't come along and use it to infringe. It's obvious how that argument would play to Bandlow's ears were it to be made.

It's also worth noting that this particular lawyer aand this particular law firm are not the typical copyright trolling outfits. Fox Rothschild is an enormous firm, employing more than 900 attorneys. Barlow is a higher-up at the firm. With the resources afforded to this lawyer at this firm, blaming technology for not meeting court-mandated deadlines is laughable. And, yet, here he is blaming his inability to whitelist the court's email server as the reason he should not be sanctioned for not following the court's orders.

Well, that and the ridiculous claim by Bandlow that he's already sanctioned himself.

Bandlow voluntarily dismissed the cases in which he missed a deadline and told the court he would not file new cases in the Eastern District of California until he was able to fix the technical problems he was experiencing with the court.

“In essence, we’ve sort of sanctioned ourselves in a weird way because that is $400 per filing, and all of that is down the drain,” Bandlow said.

It takes a lot to make me cry and this doesn't quite reach that bar. And it didn't meet the court's bar either, apparently as the decision came down to sanction Barlow despite his excuses and despite the voluntary dismissal of the cases in question.

In light of Mr. Bandlow’s representations at the hearing, the court recognizes that his bad faith is not the most egregious kind. The court believes that Mr. Bandlow’s apologies are sincere. At the same time, the fact remains that Mr. Bandlow delayed and disrupted the litigation here by willfully ignoring, and thereby disobeying, explicit orders and warnings from the court—conduct that is unacceptable from any attorney, let alone one with over twenty-five years of experience. See Chambers, 501 U.S. at 46. Therefore, for the foregoing reasons, the court determines that it is appropriate to impose monetary sanctions on plaintiff’s counsel, Lincoln D. Bandlow, but in a lesser amount than originally contemplated.

The sanctions only amount to $750. Still, this is the first time Barlow has ever been sanctioned by a court and it only happened once he decided to get into the trolling bed with a porn company infamous for copyright trolling. Perhaps that will serve as some kind of a warning for other attorneys out there.

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Posted on Techdirt - 27 February 2019 @ 7:25pm

Court Refuses To Allow Defendant In Copyright Trolling Case To Proceed, But Hints At Reform

from the losing-but-winning dept

Over the course of the last year or so, coverage of copyright trolling stories turned up a common movie multiple times. That film was The Hitman's Bodyguard, and the outfits contracted to push for fees via settlement letters were both prolific and devious in trying to manipulate the settlement offer amounts to achieve the highest conversion rates. Whatever the level of intelligence that goes into these operations, however, there will almost always be a misfire, with a wrong target picked in the wrong court in such a way that makes the troll look like, well, a troll.

Such appears to be the case when Bodyguard Productions went after Ernesto Mendoza in court, claiming that he downloaded the film via bittorrent. The problem with the case is that Mendoza is both very, very insistent on his innocence and also manages to cast about as sympathetic a figure as one might be able to find. Mendoza is in his 70s and has end-stage cancer. When Bodyguard Productions attempted to voluntarily dismiss the case when it became clear that Mendoza wasn't going to settle, he tried to push the court to force the case to go forward so that he could recover his legal expenses. Sadly, the court refused.

After hearing both sides, Illinois District Court Judge Robert Dow decided to dismiss the case, ordering both parties to pay their own fees. This was a huge disappointment for the alleged file-sharer, who now has to bear the costs for a case that he isn't allowed to fight. According to his attorney Lisa Clay, the Court should ensure that plaintiffs are ready and willing to prove their case.

“Unfortunately, the Court’s recent order does not,” Clay tells TorrentFreak. “Granting the Plaintiff’s disingenuous motion to dismiss without penalty has the real consequence of strengthening the troll business model."

That's exactly correct. The fact that copyright trolls can simply back out of a case they aren't going to have settled -- the entire point of the troll's business model -- acts as an insurance policy against its efforts. By not forcing trolls to face the potential penalty of paying legal fees, there is essentially no consequence to firing off lawsuits with no regard to the facts. That's a truck-sized loophole in the legal system that clearly does an injustice to the accused party in copyright lawsuits.

It seems that even the court in this case recognizes the problem.

On a broader scale, there’s a positive note for future defendants. In the order, Judge Dow notes that the Court should re-evaluate how it handles these cases. In addition, the potential for abuse may also deserve the attention of the Rules Committee.

“[T]he points advanced by Defendant about the potential for abuse across the universe of peer-to-peer copyright infringement cases convince the Court that it should re-evaluate its own overall treatment of these cases and consider whether to suggest that the Rules Committee in this district look into the matter as well,” Judge Dow writes.

Which is great, except we still have a 70-year-old cancer patient out legal fees after a copyright troll cut and run from its own lawsuit simply because the troll was careless in filing its lawsuits. It's quite obvious that whatever that is, it sure isn't justice.

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Posted on Techdirt - 22 February 2019 @ 3:43pm

YouTube Filters At It Again: Pokemon YouTubers Have Accounts Nuked Over Child Porn Discussions That Weren't Occurring

from the filter-fail dept

It's clear at this point that the automated filtering and flagging done by YouTube is simply not good. Whatever legitimacy the platform might want to have by touting its successes must certainly be diminished by the repeated cases of YouTube flagging videos for infringing content that isn't infringing and the fact that the whole setup has been successfully repurposed by blackmailers that hold accounts hostage through strikes.

While most of these failures center around ContentID's inability to discern actual intellectual property infringement and its avenues for abuse, YouTube's algorithms can't even suss out more grave occurrences, such as child exploitation. This became apparent recently when multiple Pokemon streamers had their accounts nuked due to discussions about child pornography that never occurred.

A trio of popular Pokemon YouTubers were among the accounts wrongly banned by Google over the weekend for being involved in “activity that sexualises minors”.

As the BBC report, Mystic7, Trainer Tips and Marksman all found their accounts removed not long after uploading footage of themselves playing Pokemon GO.

It’s believed the error occurred thanks to their video’s continued use of the term “CP”, which in Pokemon GO refers to “Combat Points”, but which YouTube’s algorithm assumed was “Child Pornography”.

That's pretty stupid and it certainly seems like the reliance for a ban of an entire Google account based on the use of an acronym ought to have come with a review from an actual human being. That human would have immediately understood the context of the use of "CP" in a way the automated system apparently could not. And, to be clear, this wasn't a YouTube ban. It was the elimination of each streamers entire Google account, email and all.

Now, once the backlash ensued, Google got them their accounts back, but that simply isn't good enough. As there is more and more pressure to ramp up automated policing of the internet, at some point, everyone pushing for those solutions needs to realize that the technology just isn't any good.

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Posted on Techdirt - 21 February 2019 @ 7:23pm

Japanese Academics Issue The Tamest 'Emergency' Statement Over Proposed Copyright Amendment

from the take-a-breath dept

Recently, we discussed a proposed change to Japanese copyright law that would make literally all downloading of copyrighted material a criminal matter, rather than a civil one. This change would be fairly bonkers for an entire host of reasons. It has the potential to clog up the criminal courts with the same kind of minor copyright infringement cases that clog up America's civil courts. It would put a decisive chill on the sharing culture that brought the internet to its current state to begin with. And it would further the culture of ownership and protectionism already far too common across the globe.

And, as states an "emergency statement" issued by nearly a hundred Japanese academics, it would possibly criminalize the kind of personal copying that facilitates research, education, and personal growth.

In an ‘Emergency Statement’ signed by 87 academics, researchers, lawyers, and other experts, the government is urged to think again about the scope of the proposed legislation. Under the current proposals, the group believes that private copying could be rendered illegal, even to the extent of outlawing screenshots for private use.

“We believe that the limitation on the right of reproduction for private use purposes has the function of restricting the freedom of information gathering in the private domain. It is a legal foundation that supports the intellectual and cultural activities of individuals, and even Japanese industry,” the signatories write.

The group believes that the proposed legislation has been rushed through in a very short time (five meetings in three months), without carefully considering the consequences. They want the authorities to think again, to protect the public interest.

It's as timid a statement as could be offered. And it's one that essentially amounts to, "Whoa, guys, take a breath, because you don't know what you're about to do." Given the timeline on which this has occurred, it's a wholly reasonable request as well, given the enormous stake the public has and its nearly complete lack of a seat at the legislative table. The chill on both expression and research that this cluster-bomb law would have can't really be overstated, as the kind of personal copying that it would seek to criminalize has become essential to both.

And, to be clear, these academics aren't exactly against enforcing copyright laws generally, either.

Importantly, those calling for the proposals to be considered more closely appear to be broadly in favor of tightening up the law to protect rightsholders. However, there are serious concerns over the potential for collateral damage when even snippets of text could be criminalized.

To that end, they suggest amendments to the proposals to mandate that it’s only a crime to reproduce copyright works when the act causes real financial damage to content owners, in the case of those who pirate whole movies, music, manga publications, books, and so on.

If you're looking for a silver lining in all of this, perhaps one can be found in this being a perfect litmus test for how government that bows to moneyed interests will react to the most modest of requests against those interests. In other words, the academics in this case are essentially asking that the law eventually do only 90% of what it originally aimed to do.

If the Japanese government can't be bothered to take even that request seriously, then perhaps the public should give up on it entirely.

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Posted on Techdirt - 20 February 2019 @ 7:53pm

The Latest In Trademark Abuse Is Registering Marks To Obtain Ownership Of Instagram Accounts

from the fake-it-until-you-make-it dept

When one thinks about an Instagram account being taken over by a malicious actor, one usually imagines some kind of hack or social engineering resulting in the theft of an account password. The refrain "It wasn't me, I was hacked!" that you hear from some whose social media profiles are the subject of social scrutiny relies on this impression.

But there are many different ways to hack a cat. The latest in Instagram account takeovers appears to be done through the avenue of trademark law, interestingly enough. Motherboard has a fascinating write-up detailing an entire ecosystem of malicious actors who are abusing trademarks to convince Instagram to hand over access to accounts.

Scammers do this by creating fake companies and trademarks to convince Instagram they should be the legitimate owner of a username in question, with fraudsters using “trademarking,” as the technique is known, to get ahold of sought-after, valuable handles, according to posts and evidence of the process in action obtained by Motherboard. The scammers can then keep these handles as digital mementos, brag about their acquisition, or resell them at a profit in a thriving underground community.

Instagram allows users to report handles that a person or company believes infringes on their trademark. For example (this is a hypothetical), if the creator of the @disney handle on Instagram was not actually associated with Disney, the company may want to appeal to obtain ownership of the username. If Instagram agrees, it may then hand over control of the account to the original trademark holder. Instagram told Motherboard it has a team that works on trademark and intellectual property issues, and as part of that process, the team reviews whether a complaint may be fraudulent.

Judging by the sheer volume of bad actors that are "trademarking" in order to fool Instagram, it seems the company's team is at best not fully up to the task of weeding out the fraudsters. And, to be clear, this isn't so much a problem with trademark law as it is a problem with Instagram putting so much weight on supposed trademark ownership that it acts as the linchpin for account takeovers. That said, while time consuming, the ease with which bad actors can spin up trademarks makes this problem more wide-spread.

Several users on the underground forum OGUsers, which focuses on the theft and sale of high value Instagram accounts, appear to engage in the practice.

“I’m looking to get a trademark or fake trademark that will make it look like I own a word so I can get an insta username,” one user posted on the forum last year.

“Need someone from the uk to file a trademark from me,” another OGUsers member wrote last year. “Willing to pay fees + 20% in bitcoin.”

A previous Motherboard investigation found members of OGUsers often sell handles for thousands or sometimes tens of thousands of dollars worth of cryptocurrency, although most of those account hijackings likely rely on SIM-jacking, where a hacker takes control of a victim’s phone number.

Again, the ultimate culprit here is Instagram using a trademark, or supposed trademark, as the chief justification for handing over an Instagram account. There obviously needs to be more of a check in place to ensure that this exact tactic is not allowed to be abused. It's also something of a symptom of ownership culture that an individual is allowed to point to a trademark, then to an Instagram account, and claim ownership.

It seems the only barrier to abusing trademark law for malicious actions is one of creativity.

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Posted on Free Speech - 19 February 2019 @ 7:44pm

David Assman Invalidates Canadian Government's Reason For Refusing Him His Name-Based Vanity License Plate

from the the-assman-cometh dept

It's been a source of confusion for me over the past few years how there can possibly be so much conflict in the realm of vanity license plates. While I can understand the need for something in the way of rules when it comes to government-mandated plates, it's still the case that such plates are a form of expression and, given the government mandate, one would think the government would tread lightly when it comes to overly restrictive rules for them. And, yet, stories about agencies disallowing Star Trek references because ignorant people think they're racist, about police being unable to have a plate that reads "O1NK", and about governments somehow thinking IT-related terms are sexual abound.

At first glance, one man's request for a vanity plate that reads "ASSMAN" might appear to be outside of these types of cases. After all, even the vulgar among us might understand a government worker disapproving of such a request out of concern for the purity of all the other drivers out there. On the other hand, when the denial for an "ASSMAN" vanity plate leaves the Canadian government offices in an envelope addressed to David Assman, it seems we're right back in the territory of the prudishly absurd.

Assman first tried to put his name on a license plate in the 1990s. That application was rejected by SGI as “profanity.” His recent application was denied on the grounds that it was “offensive, suggestive or not in good taste.”

“I think they are too worried that people are going to have hurt feelings about something that is complete nonsense,” Assman told the National Post by direct message last week. “Even if it wasn’t my last name who is it going to hurt?”

This decades long struggle by David Assman to get the Canadian government to acknowledge that his own last name is not vulgar in the form of a license plate must surely have been frustrating. Why should Assman have to put up with this shit? Regardless, even if you would come down on the side of the government denying him his vanity plate so as to prevent his vulgarity of a surname from showing up on the back of his vehicle, Assman has other outcomes in mind.

David Assman is the hero we need, not the one we deserve. Yes, this story's final arc is Assman completely invalidating the reasoning behind the Canadian government denying him his vanity plate in the first place. In case you cannot see the picture, he had an auto body painter put his own last name on the back of his truck in letters that would be, oh I don't know, ten or so times the size that they would have been on the vanity plate itself.

And so we tip our hat to the Assman this day. And we remind bureaucracies everywhere that people should just be allowed their vanity plates.

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Posted on Techdirt - 15 February 2019 @ 7:39pm

Wrestler Booker T Sues Activision For Copyright Infringement Over Fairly Generic Character Depiction

from the no-bro dept

It's old hat by now to point out that on matters of copyright far too many people are unaware of the nuances of the law as to what constitutes infringement and what doesn't. While this is generally true, it's all the more so when it comes to how copyright covers specific characters or settings. For instance, George Lucas may have a copyright claim on the specific character of Darth Vader, but he most certainly does not have any claim to the more generic black-armored space-magician with a laser sword and a bad attitude. Copyright covers expression, in other words, not mere ideas.

Which brings us to ex-WWE wrestler Booker T and his lawsuit against Activision over a G.I. Bro character he created and a character in Black Ops 4.

Booker T. Huffman has filed a lawsuit against video game publisher Activision for allegedly stealing his “G.I Bro” character in the Call Of Duty: Black Ops 4 video game.

Huffman filed a lawsuit today against Activision Publishing, Inc, Activision Blizzard, Inc., and Major League Gaming Corp.

The lawsuit alleges that Booker T’s character G.I Bro was copied by the Black Ops character David “Prophet” Wilkes. Booker T used the G.I Bro character in the 90s as a professional wrestler, and also created a comic book based on the character in 2015.

You can read the entire filing below, but I will tell you right up front that this isn't a strong case. Booker T is asserting copyright infringement over a character that does not share a name with his, does not share a backstory with his, and does not exist in the same setting as his. Instead, it appears the only thing the two characters do share is that both are African American gunslingers in combat gear with long hair. Seriously, that's about it. The filing itself uses these side by side images to demonstrate the "blatant copying" that has occurred.

If you think there is any kind of unique identifier in Activision's image on the right that somehow makes it a clear copy of Booker T's character, you're a crazy person. Again, to put it bluntly, it's just an African American guy with long hair in combat gear. Complicating Booker T's suit further, this is an established character in the Black Ops ethos, with this supposedly infringing depiction being simply some imagery around when Prophet was younger. The character is Prophet, full stop. It's not G.I. Bro at all and nobody is going to think otherwise, except apparently for Booker T and whatever lawyers he convinced to file this lawsuit.

And none of that even touches Booker T's own character's name, a clear homage and reference to G.I. Joe. One wonders if Hasbro wants to get involved at this point, given the stink that's being made over intellectual property rights.

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Posted on Techdirt - 15 February 2019 @ 12:10pm

Good Luck, Japan: Government About To Make All Copyright Infringement A Criminal Offense

from the this-should-go-well dept

We often bemoan the sheer volume of copyright infringement lawsuits that occur here in America. With an overly protectionist mentality coupled with a culture of ownership, the civil courts are frankly bursting with these lawsuits when there are so, so many more efficient ways we could do things. But we can at least take some comfort in the fact that in America copyright infringement is largely a civil matter, with criminal copyright infractions being relegated to true commercial uses of infringing activities, or those over a certain dollar amount. This saves an insane amount of undue headache for our criminal justice system.

But not every country does it this way. In Japan, for instance, copyright law has long been such that any copyright infringement having to do with music and movies has been the subject to potential criminal prosecution. This has already resulted in citizens being hauled into court by the government under potential sentences of two years in prison for the downloading of a single movie or music file. That outlandish disparity in crime and punishment has resulted in call outs from groups like the EFF. And, yet, despite such clapback, the Japanese government is currently recommending that this exact same criminalization and punishment regime be rolled out to every instance of copyright infringement, rather than relating only to music and movies.

Last year it was reported that an advisory panel for the Cultural Affairs Agency was considering the possibility of rendering the downloading of a broader range of content as a criminal offense, roughly in line with laws passed in 2012 outlawing various forms of file-sharing. This week, those plans took a significant step forward.

According to local sources, a government panel adopted the new policy on Wednesday, recommending to the Cultural Affairs Agency that current anti-downloading legislation should be expanded to cover all copyrighted content. The Agency is now expected to submit a bill to amend the Copyright Act.

While the exact punishment guidelines are currently being debated as I write this, that two-year sentence guideline from the 2012 law is very much being looked at as the standard. To roll this out to copyright infringement writ large is flatly crazy. As we and many others have stated over and over again, many people casually engage in copyright infringement in their daily lives without even realizing it. To subject such behavior to multi-year prison sentences is both pernicious and misguided. If criminal cases are pursued uniformly for copyright infringement, it's going to put nothing short of a stranglehold on the Japanese courts.

It's also worth noting that all of this is being done in a way vague enough that it's almost certain to cause confusion and chaos.

Additionally, these sentences would only be handed down in the event that victims of infringement file criminal complaints. However, the threshold for a criminal complaint is unclear and could cause issues for the legal system if there are large numbers of referrals.

Now, Japanese copyright law has steadily become more restrictive over time. But this move, if enacted, would represent a giant leap forward into a real age of restriction and undue punishment for the Japanese public. So, good luck to my Japanese friends. I can't wait to see the fallout.

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