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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 - 27 May 2015 @ 12:48pm

Hacker Informs Starbucks Of Gift Card Exploit; Starbucks Accuses Hacker Of Fraud And Maliciousness

from the hackaccino dept

In a period of a couple of weeks we have already seen some rather strange stories about companies failing to make the best use of free security advice and information, and instead going on the attack. Here we go again, I guess. What this latest example lacks in terrifying flight maneuvers or disgusting internet grossness, it makes up for in pure pettiness. This is the story about how Starbucks was informed by a hacker that he'd discovered and proof-tested an exploit on the company's gift card systems that allowed people to load twice as much money on a card as they were supposed to.

Egor Homakov found a flaw that let him duplicate funds on a gift card, which he spent in a store to test his theory. Mr Homakov worked out that making two web browsers transfer money between the same cards, at the same time, sometimes duplicated the transfer and added funds to a gift card that had not been paid for. After buying some drinks and a sandwich in a store to test if the process had worked, Mr Homakov topped up the card to repay the $1.70 (£1.10) he owed to the company.
Pretty solid, honest move, especially given that Homakov then informed Starbucks of the issue after reloading his card so as not to be costing the company even the meager couple-o-dollars it took to test his theory out in practice. As far as altruistic hackers, Homakov's story is about as good as it gets. So of course Starbucks went on the attack.
He told Starbucks so they could fix the flaw, but said that the company had then called his actions "malicious".

"The unpleasant part is a guy from Starbucks calling me with nothing like "thanks" but mentioning "fraud" and "malicious actions" instead," he wrote.

A spokeswoman for Starbucks told BBC News: "After this individual reported he was able to commit fraudulent activity against Starbucks, we put safeguards in place to prevent replication."
I have to say, even when most of these stories leave me thinking that the attacking companies would be better off taking the free security advice of people like Homakov, I can at least stretch myself to understand why they might let emotions get in the way of logical behavior. Maybe, like with airflight exploits, the danger is so great that the company just wants everyone to shut up while it gets its house in order. Or maybe, like when goatse ends up on your billboards, embarrassment takes over. But Starbucks' actions are without explanation. Far from going on the attack, the coffee company should be praising and thanking Homakov and it should be counting itself lucky that the exploit was discovered by such a benevolent force rather than one with more mischievous intentions.

Hell, many companies pay for this kind of information. Resting on the fact that the hacker tested his theory before bringing the information to the company as an excuse to throw around legal threats is stupid. Maybe they need to put down the latte to calm the jitters or something.

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Posted on Techdirt - 27 May 2015 @ 4:13am

2 Teen Diablo Players Were Charged, Got Probation For 'Stealing' Virtual Items That Were Replaced

from the virtually-dastardly dept

With some of the recent news stories about how cheating, or other crimes, committed in virtual settings is resulting in real-world legal consequences, I'm sort of surprised the media hadn't picked up on this story before. Apparently back in the summer of 2012, two teenagers, Patrick Nepomuceno and Michael Stinger, ran a scheme in Blizzard's Diablo 3 in which Stinger would send out a link to another player that allowed Nepomuceno to take control of the player's computer, force the player's character to drop all of his/her valuable virtual game items, and then Stinger would scoop them up.

According to [Prosecutor] Wilkison, court documents, and an interview with Michael Stinger, Nepomuceno bought a RAT, a ‘remote access tool’ used to take over a computer remotely. Nepomuceno and Stinger got other Diablo III players to download the RAT by disguising it as a link to a photo, which they claimed was a screenshot of a rare item. After a player clicked on the link and downloaded the RAT, Nepomuceno gained access to their computer, and was able to take over their Diablo character. He would force the character to drop all of the valuable gear and gold the player had collected, and Stinger’s demon hunter character, who was hanging out nearby in the game, would swoop in to steal the goods. “Imagine you are a gamer and you have worked long and hard to get all these items,” said Wilkison. “The victim watches himself lose everything.”
Court documents insist that the pair then sold these virtual items for thousands of dollars, something which Stinger at least disputes. Blizzard banned the pair once the reports of the virtual "theft" began rolling in, but the company apparently wasn't satisfied with that as an end to the story. Instead, Blizzard brought in the FBI, who raided Stinger's house and made off with his computer equipment. Nepomuceno declined to be interviewed, but his equipment was likely confiscated as well. Blizzard, for their part, restored the virtual items to the victims, which is where the legal part of this story gets very interesting.
But how do you prosecute a crime with no actual losses? “Blizzard gave the victims the goods back,” said Wilkison. “That made the loss calculation difficult because the victims were reimbursed. So instead we calculated the [perpetrators’] gain.”
It's an interesting question, I think, because if the victims are the players, they suffered no loss. Blizzard could be said to be the victim, but their restored virtual items carry a real-life worth that is nebulous and subjective at best, so I would think assessing any kind of value to the items for the purposes of declaring a felony would be quite difficult. The two virtual muggers apparently didn't want to fight this out in court, however. Both accepted probation and were forced to pay Blizzard back for the costs of investigating their actions. Notably, it does not appear they were forced to pay the company back for the worth of the virtual items, which seems strange since their worth was the basis for the felony prosecution to begin with. The real crime, it would seem to me, was the unlawful access of another person's computer in all of this, but the discussion around a felony for theft of virtual items took the main stage.

Theft of virtual items in which no loss actually occurrs to the victims, something that we've actually discussed before, almost a decade ago. Given that the question apparently hasn't gone away, the legal world is going to have to figure out how to navigate these virtual waters, and I don't think tossing around felonies strictly for the crime of stealing virtual items in a video game is a good route to take.

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Posted on Techdirt - 26 May 2015 @ 9:15pm

The Price Of Ignoring Free Internet Security Advice: Billboards Of Goatse

from the gaping-security-holes dept

Normally, when we talk about companies and institutions looking to silence security researchers and their ilk who have tried to expose potential threats, the story ends without tragedy. United Airlines, for instance, went on the attack on Chris Roberts, who may well be an idiot, for exposing in-flight WiFi security concerns. CyberLock decides to go legal on a researcher who had been trying desperately to contact them about a security flaw in a number of its electronic locks. Johns Hopkins, meanwhile, ordered the disappearing of a blog post detailing how its own servers might be compromised by the NSA (or used with permission) to defeat encryption schemes.

But in all of those cases, even if some shenanigans were had, there was no real damage done as a result of ignoring the security advice that those organizations subsequently attempted to silence. So, what is the consequence of ignoring that device? Well, as it turns out, the consequence is anus. Very, very, tragically, unfortunately infamous anus.

The affluent denizens of Atlanta’s Buckhead neighborhood received a fun treat this week when they looked up at the corner of Peachtree and East Paces Ferry: a famous internet man’s giant, ruddy, gaping spread asshole, displayed on an enormous digital billboard.

The billboard above [Techdirt editor: which I'm not posting, because obviously I'm not] is one of the thousands of YESCO digital billboards installed across the country. Naturally, it comes with an internet connection. The setup is exactly as insecure as you’d imagine: many of these electronic billboards are completely unprotected, dangling on the public internet without a password or any kind of firewall. This means it’s pretty simple to change the image displayed from a new AT&T offer to, say, Goatse.
Great, so because whoever is in charge of managing that electronic billboard couldn't be bothered to take the advice any competent technology person who came across the setup, of which there must have been at least one, the great people of Atlanta were treated to one of the most disgusting images in human existence. I'm generally loathe to blame the victim, but the owner of a public-facing billboard must have some culpability when it comes to securing their display. And I say that there was at least one person who warned them about this, because at least one has come forward publicly.
Not only was this a case of incompetence, but gross negligence: security researcher Dan Tentler tweeted yesterday that he’d tried to warn this very same sign company that their software is easily penetrable by anyone with a computer and net connection and was told they were “not interested.” Even after the billboard was defaced, Tentler said the company still hadn’t secured its software.
Probably best to just sick the lawyers on Dan. After all, this all must be his fault, somehow.

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Posted on Techdirt - 26 May 2015 @ 3:59am

Meanwhile, In Japan: More Arrests For Cheating At Video Games

from the h4x0r! dept

Some months back, we noted that something odd was happening in Japan: online gaming cheaters were being arrested. Yes, arrested. Not arrested in a virtual sense, not banned from games, arrested as in picked up by police and charged with a crime. This, in case you are undecided on the matter, is insane. Cheating and online gaming have been a virtual arms-race for going on forever and generally it's been on the gaming companies to win that war. If they can use law enforcement as a new ally, the implications could be scary, especially when it's quite easy to levy accusations of cheating and when simply finding ways to exploit an advantage within a game is often times mistaken for cheating as well.

The latest incident is not an example of the latter. A man in his thirties in Japan, named Akihide Yamamoto, was picked up for running a web-store for cheats to exploit a game titled Alliance of Valiant Arms.

According to the Yomiuri Shimbun, Japan’s largest paper, Yamamoto was arrested for suspected violation of Japan’s Unfair Competition Prevention Law. Reports state that Yamamoto, a Himeji City resident, is believed to have apparently sold a hacked character and overpowered weapons to a 40-year-old man in Saitama Prefecture for 20,000 yen or US$168. This isn’t a first for Yamamoto, who has also been arrested for using cheats in another game.
Look, on the one hand cheaters are beyond annoying. Add to that the emergence of big-time eSports, the tournaments of which often times include large sums of prize money, and I can see why a gaming ecosystem exploding around online gaming means that cheaters are a bigger problem today than they were ten years ago. That said, c'mon, arresting these people and charging them criminally? For gaming? And, in this case, it's not even the cheater that's being charged, but a person providing the "tools", if you will, for the cheaters. That adds a whole new layer to this, because at what point do we want to chill the tinkering and hacking that goes on with the possibility of criminal charges?

Now, I don't want to sound like I'm making excuses for Yamamoto, who might well be the gaming-world's devil for all I know. But gumming up the legal system with guys who are selling game exploits seems like a massive waste of time and resources.

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Posted on Techdirt - 22 May 2015 @ 4:19am

Press, University Say Study Shows Link Between Gaming And Alzheimer's; Spoiler: No It Doesn't

from the forget-it dept

If I've learned any single thing covering technology news it's that you can blame absolutely anything on video games. Mass violence? Games. Failure at professional sports? Pssh, games, yo. Love life not as spicy as you might like? Those games, those games. But a study that supposedly claims a link between video games and Alzheimer's Disease? Come on.

“Call of Duty increases risk of Alzheimer’s disease”, said the Telegraph. “Video game link to psychiatric disorders suggested by study”, reported the Guardian. The Daily Mail posed the problem as a question, “Could video games increase your risk of Alzheimer’s?”, reminding us that whenever a news headline asks a question, the answer is no.

We know that when science news is hyped, most of the hype is already present in the press releases issued by universities. This case is no exception - the press release was issued by the Douglas Mental Health University Institute, and unsurprisingly it focuses almost entirely on the tenuous link to Alzheimer’s disease.
Tenuous is being exceptionally kind in this case. The study in question, produced in the Proceedings of the Royal Society B, barely focused on any link between gaming and the disease, in fact. Instead, the team of Canadian researchers were simply studying the difference in brain-wave activity with groups of gamers and non-gamers. They noticed specifically a significant difference in the activity of one type of brain-wave with gamers, N2PC, which can have an effect on attention spans. So, how did we get from that to a link to Alzheimer's? Were there clinical tests done? Was the team of researchers even in any way focused on the most famous form of dementia?

No. Instead, the article describes the methodology for reaching the conclusion of a link thusly:
1. The type of learning shown by the gamers has been associated in previous studies with increased use of a brain region called the caudate nucleus

2. Increased use of the caudate nucleus can be associated with reduced volume of the hippocampus

3. Reduced volume of the hippocampus can be associated with increased risk of Alzheimer’s disease

4. Therefore (take a deep breath) video gaming could increase risk of Alzheimer’s disease
That's three, three associations of mere correlation at best, with not even a shred of evidence for causality. And from that we get not only press reports of a link, which I can understand because the major media groups in Western culture have proven to be more interested in sensationalism than stuff that actually exists, but university institutions pushing out press releases to feed the hounds? That's not only wrong, it's borderline character-assassination on the wider gaming industry. Sadly, even some on the research team have gotten in on the act, likely in the hopes of generating press coverage of the study.
The press release also includes a statement from the lead researcher that is a clear exaggeration. Dr Gregory West is quoted as saying “we also found that gamers rely on the caudate nucleus to a greater degree than non-gamers”. Actually they didn’t find this at all, because their study didn’t measure activity in the caudate nucleus. Instead it measured a type of behaviour that previous studies have associated with activity in the caudate nucleus. There is a world of difference between these two, and readers would do well to take these latest claims with a generous helping of salt.
No, man! Salt intake is associated with water retention, which is associated with bloating, and weight-gain can be a factor in spousal infedelity, therefore salt leads to my wife cheating on me if I take these grains you prescribe!

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Posted on Techdirt - 22 May 2015 @ 1:16am

Alert: North Korea Now Capable Of Using Photoshop To Launch Missiles From Submarines

from the shop-skillz dept

Whenever our friends in Pyongyang decide to troll the planet with one of their hilariously bad propaganda pieces, it always makes me wonder just how serious the North Korean regime is about this whole war thing. I mean, using video game footage and music to threaten 'Merica? C'mon, son. And those photoshopped photo-ops of your human-chicken-dumpling leader just don't inspire much confidence in the country's technological capabilities. But it's when North Korea combines war and fun-bad photoshopping that the real fun begins.

Take the country's recent press brag, for instance, in which North Korea announces that they've managed to launch a missile from a submarine.


Experts, it appears, aren't all that impressed with the photo. That was particularly the case when the state-run Pyongyang press circulated other photos of the launch that were complete with columns of smoke from the missile, columns of smoke conspicuously absent from the initial photo that was circulated above.

As Markus Schiller and Robert Schmucker, of Schmucker Technologie, told Reuters, “Considering the track record of North Korean deceptions, it seems sensible to assume that any North Korean SLBM [submarine-launched ballistic missile] capability is still a very long time in the future, if it will ever surface.”

What the column-less photo lacked in smoke, it made up for with weird, poorly placed ocean smudges. That reddish patch of water you see to the left of the missile? That’s supposed to be the rocket’s reflection.
And, so, sadly, the only thing this launch report from North Korea tells us is that they still haven't gotten photoshop down. Oh well. If they ever did get into an actual shooting war again, I suppose they could always just photoshop themselves into some kind of victory pose. Given how often their progress with weapons technology turns out to be non-progress at photo-bullshitting, such a war is probably a remote possibility. Several of the commenters over at Gawker offered to help them out, of course, though this one is probably my favorite.


Call in Mario Marine!

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Posted on Techdirt - 20 May 2015 @ 8:10am

Chris Christie: Your NSA Fears Are Bullshit And Civil Liberties Advocates Are Extremists

from the unelectable dept

The nice thing about hating both of America's stupid political parties is you get to make fun of everyone. That said, occasionally one political candidate or another says something so stupidly wrong to support a stupidly wrong political position that your brain screeches to a halt aghast. Today's cerebellum stopper is Chris Christie, who most commentators seem to think is going to be running in the next presidential election. If he continues this line of, "Civil liberties are for extremists and NSA spying concerns are baloney because 9/11" rhetoric, however, it's probably going to be a short foray into the primaries.

Civil liberties advocates’ fears about the government’s intelligence efforts are “baloney,” New Jersey Gov. Chris Christie will say Monday during a speech in the early primary state of New Hampshire, calling for expanded American military and intelligence programs.

The government is not the enemy when it comes to fighting terrorist threats, he will say, according to a copy of his prepared remarks provided by his political action committee.
Christie went on to say in that speech that the American people should not listen to Edward Snowden, because Snowden is a criminal, and also Vladimir Putin, and especially because 9/11, obviously. It's an interesting political move, I think, considering that a majority of Americans believe the government has overreached on domestic spying, but I'm not here to tell Christie how to run his campaign. I am here to tell him that he isn't allowed to make plainly false claims about this country's ideals and the people that developed them, however.
“There are going to be some who are going to come before you and are going to say, ‘Oh, no, no, no. This is not what the Founders intended.’ The Founders made sure that the first obligation of the American government was to protect the lives of the American people, and we can do this in a way that’s smart and cost-effective and protects civil liberties. But you know, you can’t enjoy your civil liberties if you’re in a coffin.”
This, in case you're confused, is absolute nonsense. That's not to say that protecting American lives wasn't high on the founding fathers' list of things to do. It certainly was. It appears just below protecting their freedom, however. Christie suggesting that it was the founding fathers' intention to negotiate some compromise between freedom and safety is fiction. Man, if only there was some catchy phrase from a historical figure that could some this all up for me in an easily reproducable, easy-to-tweet to Christie fashion.


Damned extremists, always trying to, you know, start the country that Christie is now going to run for chief executive of. There are other examples, of course, although the chief example of the founding fathers' willingness to put freedom before safety is probably, oh I don't know, the Revolutionary War. I wasn't there, but I'm pretty sure that war wasn't all that safe.

Look, the point of all this is that 9/11, while certainly not forgotten, is in the rearview mirror and can't be invoked as the boogeyman to push bad, freedom-thieving policy on Americans any longer. We've had over a decade of that and it just isn't going to work any more. But, hey, if Chris Christie wants to make himself un-electable, I'm all for it. Give me a better candidate or give me death.

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Posted on Techdirt - 19 May 2015 @ 1:00am

YouTube Reinstates Metal Gear Video Konami Took Down, Warns Konami Not To Be Jerks

from the solid dept

Well, well. We had just been discussing Konami getting YouTube to take down a video it didn't like, one produced by YouTuber Super Bunnyhop, which discussed a supposed breakup between the gaming giant and famed game-producer Hideo Kojima. The excuse for the takedown was apparently something like half-a-minute's worth of game footage from the Metal Gear Solid franchise, a significant portion of which was simply one game's title screen. YouTube, with its content-makers friendly notice/takedown policy, complied with the takedown. Often times, that would be the end of the story. We'd all cry foul, complain that copyright sucks, and head on to the next story.

This time, however, is different. Super Bunnyhop challenged the takedown with a notice to Google and Google responded by both reinstating the video and warning Konami to stop screwing around. After reinstating the video, here is what YouTube sent to Konami.


It's a standard notice Google sends out when takedowns aren't on the level, but it's still nice to see. Not only does the letter let Konami know YouTube is concerned over the bullshit takedown, but it also helpfully gave the company a quick primer on fair use. There is some polite language requesting additional information should Konami still want to claim the video to be infringement, but any cursory glance ought to be enough to know that the whole thing falls under fair use. YouTube also sent Super Bunnyhop a notice that the video had been reinstated.

"This may be the first time YouTube has quickly stepped in and reviewed a bogus copyright claim for a gaming video,” [Super Bunnyhop] said to me over email. “If that’s the case, then my situation may be breaking new ground, and this could be good news for YouTubers everywhere.”
Yeah, there's actually no real new ground being broken here. YouTube sends these letters out all the time and it reinstates videos like this when the takedown is crap as well. That said, every fair use victory is a step in the right direction and it's worth reminding everyone out there that the takedown doesn't have to be the end of the story for non-infringing videos. Sometimes intellectual property is used for censorship and there is little anyone can do about it. But that's not always the case and it's important to fight it wherever possible.

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Posted on Techdirt - 18 May 2015 @ 2:45pm

FBI Investigating Chris Roberts For Hacking Flight WiFi, Taking Control Of Engines

from the how-is-this-possible? dept

I'll be honest: when I wrote about Chris Roberts being detained by the FBI for tweeting about hacking his flight's WiFi, I reacted with a great big eyeroll. On the one hand, security researchers like Roberts look for these vulnerabilities all the time and it's quite helpful when law enforcement and airlines learn about potential avenues for threats. On the other hand, Chris Roberts is quite obviously not Al Qaeda. The whole thing appeared to be a reaction to embarrassment that the vulnerability had been allowed to exist, rather than any belief that Roberts was in any way a threat.

But if Roberts is to be believed, he did something really stupid on previous flights: he used his WiFi hack to manipulate the plane's engines.

During two interviews with F.B.I. agents in February and March of this year, Roberts said he hacked the inflight entertainment systems of Boeing and Airbus aircraft, during flights, about 15 to 20 times between 2011 and 2014. In one instance, Roberts told the federal agents he hacked into an airplane’s thrust management computer and momentarily took control of an engine, according to an affidavit attached to the application for a search warrant.

“He stated that he successfully commanded the system he had accessed to issue the ‘CLB’ or climb command. He stated that he thereby caused one of the airplane engines to climb resulting in a lateral or sideways movement of the plane during one of these flights,” said the affidavit, signed by F.B.I. agent Mike Hurley.
If true, that would go way beyond identifying exploits, mentioning that you could drop the oxygen masks, or really anything else that deals with in-flight wireless hacks. If the affidavit is to be believed, Roberts dangerously manipulated the flight's equipment, potentially putting everyone aboard at risk. We have only the FBI's word for all of this, of course, but the feds are certainly behaving as though Roberts both said all of this and that he's not simply making fictional claims.
Roberts, who has been interviewed at least three times by the F.B.I. this year, is under investigation for allegedly hacking into the electronic entertainment systems of airplanes, according to an application for a search warrant to probe seized electronic equipment. The document shows F.B.I. agents investigating Roberts believe he has the ability to do what he claims: take over flight control systems by hacking the inflight entertainment computer.

“We believe Roberts had the ability and the willingness to use the equipment then with him to access or attempt to access the (inflight entertainment system) and possibly the flight control systems on any aircraft equipped with an (inflight entertainment system) and it would endanger the public safety to allow him to leave the Syracuse airport that evening with that equipment,” sates the warrant application.
Roberts, for his part, has at least suggested to a Wired reporter that the FBI is twisting his words:
“That paragraph that’s in there is one paragraph out of a lot of discussions, so there is context that is obviously missing which obviously I can’t say anything about,” he said. “It would appear from what I’ve seen that the federal guys took one paragraph out of a lot of discussions and a lot of meetings and notes and just chose that one as opposed to plenty of others.”
That still doesn't say he didn't do it, though.

As with too many of these stories, the end result is that we have absolutely nobody to root for. To be fair, Roberts has been warning the airlines and the feds about these exploits for years, without any of it generating much attention. His purported stunt has suddenly brought a little light to what is obviously an untenable security risk, which doesn't in any way excuse manipulating an engine mid-flight. That, plainly, is insane, and I don't think it can be argued that it's an action that deserves punishment. On the other hand, Roberts still isn't Al Qaeda and the end result of all of this may be that planes are safer. Intentions matter, after all.

As for the federal government and the airlines: are you kidding me? You're telling me that not only was all of this possible, which is crazy at the outset, but they had been warned about it and had done nothing? Crazy as it sounds, everyone should be thanking the universe that Chris Roberts was the one manning the keyboard on these flights instead of someone with more nefarious intentions. The feds and the airlines should have simply hired Roberts to battle these vulnerabilities rather than letting it get to this point. Instead, we learn this way that it may indeed be possible to get control of a flight through a plane's WiFi. And we learn that law enforcement and the airline's chief strategy to deal with that fact was to pretend it didn't exist.

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Posted on Techdirt - 14 May 2015 @ 1:44pm

Water Company Goes Trademark Bully on Graffiti Activists Over Hashtag

from the taking-back-the-tweets dept

Here's an idea: if a for-profit business wants to build up a little positive publicity by promoting a public health campaign utilizing a group of hip street artists, that company shouldn't then go on the muscle bullying other art projects over something as dumb as a hashtag it has claimed to have trademarked. This is doubly so when that hashtag is something completely tangential to the company's brand. And yet...

That’s a lesson being learned by Wat-aah, a bottled water company that enlisted street artists in a health-awareness campaign to encourage children to forsake soda for water. Some of the artists designed labels for the brand, while others painted murals or donated artwork for a recent auction to benefit the Partnership for a Healthier America. Many participated in exhibits, including one that Michelle Obama attended in February 2014 at the New Museum in Manhattan.

“It was a common-sense campaign,” said Damien Mitchell, an Australian artist who did a mural in Upper Manhattan. “I didn’t think you needed to have one, especially for water. But, here we are, in America.”

His feelings about the campaign changed in September when he learned that a lawyer for the water company sent a cease-and-desist letter to the Little Italy Street Art Project, a community group that has sponsored dozens of murals in Manhattan’s Little Italy neighborhood.
The dispute was apparently over a hashtag both the health campaign and the Little Italy Street Art Project used: #takingbackthestreets. Little Italy had been promoting itself through social media circles using the hashtag when they received the C&D claiming that said hashtag had been trademarked by Wat-aah and oh my god this world is a really stupid place. Wat-aah (sigh) claimed in its letter that because both the campaign and Little Italy's group used murals to get across their messages, customer confusion would ensue, the sky would fall upon all of us, and all the rest. When contacted, Wat-aah (waaaaaat-aaaaaaaah!) claimed that, hey, we're cool, man, we didn't actually sue them or anything, so chillax, yo.
Dezmon Gilmore, a spokesman for the company, said the Taking Back the Streets campaign, sponsored by a foundation affiliated with the company, was advised to send the letter to eliminate confusion. It was not meant to be malicious, he said, but precautionary, and no further action had been taken.
Meanwhile, a pissed off Wayne Rada, the man behind the Little Italy project, is complaining that if the company had simply asked politely he would have happily stopped using the hashtag because it's just a god damned hashtag and why are we doing this? Since getting the letter, he's complied with the request, explaining that his art project doesn't have enough money to go to battle with a corporation that apparently thinks it owns hashtags.

In the end, there are a great many ways to arrive at the proper behavioral decisions one should make in a given situation. Listening to trademark lawyers who tell you to go after a small art project over a hashtag with claims that are probably baseless is one moral code to live by. Me? I prefer the only single commandment worth following and I'd suggest Wat-aah follow it as well.



Wat-aah concept!

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Posted on Techdirt - 13 May 2015 @ 5:59am

Flight Attendants Lost Their Tantrum Suit To Keep Bitching About Our Electronic Devices On Flights

from the awwwwww dept

Perhaps, like me, you've never really understood the curious ban some airflights and airlines have had on mobile and electronic devices during flights, take-offs, and landings. Perhaps, like our Jefe, Mike Masnick, you've dismissed the requests from flight attendants that those devices be fully powered down out of hand, because you too are a rebel the likes for which this world is wholly unprepared. And maybe you too cheered when the FAA summarily dismissed these silly rules way back in 2013, thinking that the madness of a few moments without our favorite devices had finally come to an end.

But then, as you may know, the Association of Flight Attendants sued the FAA in order to retain the ability to lord over your smart-phones, tablets, and computers on flights. Notably, the AFA's filing made essentially zero claims having anything to do with the safety of electronic devices on the flights. Instead, their argument centered on whether the power to decide whether flight attendants could treat passengers like children who hadn't finished their vegetables resided with the FAA, or if the AFA should have some input.

Well, the court has ruled and has firmly told the AFA and flight attendants to go dangle.

In this case, it really does not matter whether Notice N8900.240 is viewed as a policy statement or an interpretive rule. The main point here is that the Notice is not a legislative rule carrying “the force and effect of law.” Perez, 135 S. Ct. at 1204. A legislative rule “modifies or adds to a legal norm based on the agency’s own authority” flowing from a congressional delegation to engage in supplementary lawmaking. Syncor, 127 F.3d at 95.
That's court-speak for "nice try, now go away." Of course the FAA can make changes to flight rules as it pleases and, when it comes to the use of devices the ban for which has always been cast in the light of flight-safety, an association for flight attendants ought to have about as much input as a doctor's receptionist should have on medical policy. This tantrum of a suit, which is all it ever was, has been dismissed and we are finally free to play Angry Birds during takeoff. Free at last, free at last.

More seriously, it's somewhat nice to see some aspect of security theater being done away with regarding anything to do with airplanes and flights. If we could just take this same tact with the rest of airport security, we'd be making a world of improvements.

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Posted on Techdirt - 12 May 2015 @ 9:18pm

Retired Music Promoter Claims Trademark Infringement On Trademark He Admits To Abandoning

from the you-can't-do-that dept

There are lots of ways companies and people try to get around the abandonment of trademarks in disputes, from claiming a "secret menu" constitutes continued use to simply asserting that having bought a company means the now defunct brands have been incorporated into the new company. But it's simplicity that brings pleasure to me in my ripe old age, so I sort of appreciate this dispute over the trademark of the Electric Daisy Carnival music festival in which two semi-associated music promoters, one now a chef for the Williams sisters of tennis fame (not making that up), essentially claim that they allowed another music promoter to use the festival name for nearly two decades but didn't intend for it to be abandoned.

There are actually two complaints before the USPTO to digest here, and the link above has a ton of back-story. The shorter breakdown is that the Electric Daisy Carnival festival put on by Pasquale Rotella has been in existence since 1997. It's something of a rave festival or whatever the kids are calling it these days, draws in something like four-hundred thousand fans a year, and is a staple at the Las Vegas Motor Speedway. In other words, this isn't some obscure get-together. Yet, despite it having gone on for eighteen years, former music promoter Stephen Enos, who now cooks for Serena and Venus Williams professionally, and current music promoter Gary Richards have filed separate complaints to cancel Rotella's trademark. Rotella's company, Insomniac, claims that this is a money-grab. Regardless of the motives, Enos and Richards both have uphill battles, given the clear abandonment of any trademark they might have had.

"Trademarks are 'use it or lose it,' they're not like patents, where whoever thinks of it first wins," said Daniel M. Klerman, a professor at USC's Gould School of Law. "Even if there's no doubt that [Richards or Enos] used it first, abandonment is a pretty standard defense. To say, 'We haven't used this in 20 years, but we always intended to revive it,' that's a hard thing to do."
You would think that any complaint after all this time would have to come with an explanation for the time-lapse riding side-car. In this case, there isn't any real defense even attempted. Let's first get Enos' take, since he filed his complaint first and we need to let him get back to whipping up Serena's eggs benedict.
According to Enos' petition, Rotella later used the Electric Daisy Carnival name without his knowledge to promote a festival at the Coliseum in 1997. Enos claimed that he allowed the festival to continue so as not to disappoint fans in the nascent L.A. dance music scene but that he never intended to relinquish the trademark. Enos' attorney provided screenshots of previous Insomniac websites that said the name was "borrowed from Steve Kool-Aid's original creation." As Rotella continued to use the trademark through the '90s and 2000s, dance music became a lucrative festival phenomenon in America, Rotella first registered the Electric Daisy Carnival trademark in 2002 (he registered "EDC" in 2012, and re-registered "Electric Daisy Carnival" in 2010 ).
Steve Kook-Aid was Enos' industry name because the dance music scene is a odd, odd place brah. Anyway, as you can see above, his argument mostly consists of claims that he was just trying to be cool, yo, and can he please have a chunk of the Electric Daisy Carnival value now that it's super successful? Well, unfortunately, there's no "being cool" exclusion to trademark abandonment and the time-lapse between the allowed use and the complaint, even with the nod in Enos' direction by Rotella, is pretty clearly abandonment.

Richards, for his part, used to partner with Enos' event company. His explanation for the abandonment is essentially the same, but relies on "oral licenses" arguments in which he advocates not only for his own ownership of the trademark, but for Enos' as well. The two of them apparently had no idea the other was filing these things.
Richards' petition says that he and Enos began using the Electric Daisy Carnival trademark in 1991 and that they granted an oral license to Rotella to use the name in 1997. But Richards' complaint said that he similarly never intended to turn over the rights to the trademark and that the mark belonged to him and Enos. The petition claims that Rotella "knowingly made a false, material misrepresentation of fact when he filed the Application, with the intent to defraud the United States Patent and Trademark Office by claiming that he was the true owner of the Mark."
Even assuming that anyone buys Richards' claim that they simply gave Rotella an oral license to use the brand, that wouldn't explain why there haven't been any claims over the subsequent decade since Rotella first trademarked Electric Daisy Carnival. Neither does it relate to the abandonment of the trademark in use by either party. Certainly there is no trademark dispute in the opposite direction coming from Rotella, which you'd expect if either Enos or Richards were throwing their own Electric Daisy Carnival festivals.

Sorry, guys, but abandonment rules here, even if you were trying to be cool twenty years ago.

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Posted on Techdirt - 12 May 2015 @ 4:12am

Konami Gets YouTube To Take Down Video It Doesn't Like; Streisand Effect Ensures Neverending Discussion Of Video

from the well-that-didn't-work dept

I tend to be able to undestand when smaller companies, or perhaps younger companies, don't know and understand what the Streisand Effect is and how it works. You can write off this stuff sometimes to inexperience, even if you don't forgive the censorious actions themselves. But I think it's fair to say that Konami should know better than to think it could get away with disappearing a YouTube video it didn't like, yet that's exactly what Konami did.

Two weeks ago, George “Super Bunnyhop” Weidman published a YouTube video alleging he had information about the ongoing tension between Konami and Hideo Kojima. Now, it’s offline. (In case you missed the drama of the last few months, Kojima and Konami appear to be in the midst of a breakup, even as Kojima finishes work on Metal Gear Solid V: The Phantom Pain.)


Now, you can understand why Konami might not want a video about Metal Gear creator Kojima circulating just as the work on the latest iteration of the game series is due to be completed. After all, Kojima is well-known, very popular, and the news that there is some kind of rift between him and Konami might create doubt in customers' minds about just how much effort is going into this latest game. Add to that the notion that a public breakup with a popular game-designer can probably only hurt Konami's reputation and it's easy to get why the company would prefer all of this be buried.

And that's why taking down this video makes no sense. It not only gets a wider audience talking about the contents of the video, which have been put back up on another YouTube video, but it adds credibility to the claims made within it. After all, if this was all far-fetched speculative nonsense, Konami should have laughed the reports off, not used copyright to silence the video entirely. Use of game footage within the video is sparse at most, making all of this seem like a pure attempt at censorship using intellectual property, which, duh.

Based on Kotaku's reporting, it should be noted, this is almost certainly a manual takedown, as opposed to a Content ID grab.

There are two ways for a video to disappear from YouTube that doesn’t involve the creator deleting the video. One, there’s YouTube’s Content ID system, which scans videos for copyrighted material. Content ID, however, typically kicks in as soon as the video is uploaded, and wouldn’t normally bring a video down from the service two weeks later. It’s possible but unlikely, as all my interactions with Content ID have occurred very early in the process.

Two, a company purposely (and manually) issues a takedown notice, knowing YouTube will err on the side of rights holders, at least until the issue is resolved. During that time, the video is offline. Companies have used this tactic in the past to suppress videos they didn’t care for.
If the latter is the case with this takedown, it's quite a misunderstanding of the reaction to censorship of this kind in this day and age. Enjoy all the press that hated video is getting, Konami. You created it all, after all...

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Posted on Techdirt - 11 May 2015 @ 9:09pm

Big Red Soda Sues Big Ben Soda Over Big Trademark Dispute

from the big-deal dept

It's quite easy to get caught up in some trademark disputes where the trademarks are of a short nature and the industries are such that there are only so many ways to present a product. In those situations, it's too simple to point at two brands and claim they are similar, therefore, boom, trademark infringement. Instead, a little context matters. Let me show you what I mean using one recent example.

Two soda makers, Big Red and Catawissa Bottling Company, are currently at odds over the latter's Big Ben's Soda brand.

Big Red, the Austin-based maker of bottled red soda, is suing a small Pennsylvania soda maker, Catawissa Bottling Company, alleging that its Big Ben Cream Soda – also red in color – infringes upon its trademark, reports the Dallas Morning News.

According to court documents, Big Red attorneys say Catawissa's soda "is currently packaged in the same manner as Big Red soda: a clear bottle bearing a water droplet and the 'Big Ben' words" which are themselves substantially similar to the 'Big Red' words," and that the typeface and graphics on the bottles of the two sodas are too similar.
Again, you can see where a little context is important here. Both companies are making bottled soda. For that reason, we can pretty much just throw the part about both being sold in a clear bottle out, because, duh, there's nothing unique in the industry there. It's the other claims that are important. The least important of them is the "Big Ben" brand name, because "Big" is the only similarity, "Big" is a super-common word that isn't unique, while "Ben's" and "Red" have nothing to do with each other. The name of the "Big Ben's" brand is only relevant if the other claims Big Red makes are true: if the packaging graphics are similar, if the type-font of the words is similar, and if there is likely to be customer confusion resulting from either.

Judge for yourself how valid Big Red's claims are.


How similar is the packaging and font to you? If you answered that they don't look similar at all, then ding, ding, ding, you're correct! There seems to be little chance of customer confusion over the two brands at all, honestly. The only Big Red's dispute that might make some kind of sense would be if it thought that Catawissa had seen Big Red's popularity and tried to come up with a brand, any brand, that appeared just similar enough to try and make customers think it was a cheap knock-off. There would be a problem with that theory, however.

It should be noted that Catawissa has been making Big Ben-brand soda since 1926. Big Red's trademark dates back to 1957, and was the result of a consumer nickname that stuck.
It's a product almost a century old, in other words. Oops. Big Red, I'll note for you, is partially owned by the same company that makes Dr. Pepper and Snapple, so I'm sure there's some access to a bit of legal firepower on their end. It'd just be nice if all that firepower was reserved for actual infringement cases.

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Posted on Techdirt - 8 May 2015 @ 6:11pm

Video Game Trend: The Decline Of The 'Game' And The Emergence Of The 'Living Game World'

from the a-brand-new-world dept

Normally, reading a report on an earnings forecast by a video game company is no more interesting than it would be if the company made, say, toilet bowl brushes. But every so often, you can catch a glimpse of where a company thinks the gaming industry is going and how gaming might evolve next. One such report on Activision's earnings has some interesting tidbits to go along with the company's acknowledgement of the known trends in digital distribution.

The report starts off with Activision reporting that its overall sales strategy is focused on shifting as much effort to digital/internet sales as possible. This is no surprise of course, as the trend for gaming to shift away from shiny discs and towards downloads has been in place for a while now. Still, hearing Activision report that three-fourths of its revenue now comes from sales over the internet is jarring. But the really interesting stuff comes when Activision talks about how the internet has made it possible for a gaming company to go beyond making "games" and instead creating living, evolving game worlds for players to immerse themselves in.

Activision also said two of its newest games -- the space-age shooting game Destiny, and the digital card game Hearthstone: Heroes of Warcraft -- have accumulated more than 50 million registered users and are now responsible for more than $1 billion sales. Hearthstone, for tablets and smartphones, is offered for free to download, and makes its money by charging for upgrades and additional items over time. Destiny is also designed to get players spending money over the next ten years of its development by offering additional storylines and other items. Activision says Destiny's player base clocks around 3 hours of playtime a day.

The 11-year old World of Warcraft game is one of Activision's best known and longest-running active games. That has helped executives see the value in creating titles of all types that operate less as products burned onto physical discs and played over a short time to living titles, regularly expanded and updated over time. So far, it's paying off. Activision said a record 76 percent, or $538 million, of its total revenue came from sales over the Internet of full-game downloads and in-game adds-ons.
MMOs are not new. As the quote above notes, WoW is over a decade old. That said, gamemakers might have waited until recently to decide that evolving, online gaming worlds are going to be the new norm in gaming. The way Activision is talking about this sounds like the idea of making "games" is going to take a backseat to making evolving, always-running, decades-spanning game worlds in which the sales strategy will be an ongoing participation by gamers, rather than simply having them plunk down $40 at a retailer to take their shiny disk home and pop it into a console.

Activision isn't alone in this line of thinking.
This shift, though more dramatic with Activision, follows an industry trend with other large game makers, like Electronic Arts and Take-Two Interactive, which have both seen consistent boosts to sales over the Internet in recent quarters. These companies are beginning to see success in the games industry as less a matter of selling the most units and more a question of how to get gamers to play a single game for longer -- and spending real money in the virtual worlds as well.
Ten years ago, the method for measuring the play time in gaming was measured in hours. Ten hours was a short game, twenty was about average, and a forty-hour game was massive. Now game developers are looking to measure game time in years, not hours. It's a massive shift in business models.

This isn't to say that the more traditional "game" is immediately going away, of course. Activision is still going to pump out Call of Duty games, and is even reportedly looking to revive the Guitar Hero brand. But this sort of reminds me of how it felt at the start of the adventure game decline fifteen or so years back. They didn't die off immediately, or at all, really. Instead, the industry just slowly stopped making as many of them, bit by bit, until the point-and-click adventure game became the niche market it is today. Will old-fashioned "games" follow the same trajectory? The money trend seems to indicate it might.

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Posted on Techdirt - 8 May 2015 @ 12:58am

Head Transplant Doctor Ponders Likeness Lawsuit Over Supposed Appearance In Metal Gear Solid 5

from the losing-your-head dept

Look, I don't even know where to begin with this, so let's just dive right in. A trailer for the upcoming release of the latest game in the Metal Gear Solid series came out a while back and, for reasons I can't even begin to explain, a whole load of folks out there decided that a doctor that appeared in the trailer looked an awful lot like a real-life Italian doctor. But not just any doctor. This doctor is apparently working on achieving the first ever successful human-head transplant with spinal reconnection.

For almost a week now, some parts of the gaming internet have been going nuts over the visual similarities between the doctor that features in the trailer for Metal Gear Solid V: The Phantom Pain, and the controversial real-live Dr Sergio Canavero, the neurosurgeon who recently found sudden fame when he claimed that he was ready and able to perform the first human head transplant in medical history. He’s even found a prospective patient, a Russian called Valery Spirodonov, who suffers from a terminal muscle-wasting disease.
The images of the character and Canavero, when placed side-by-side, are certainly striking.


Apparently there have been people calling up Doctor Canavero and questioning him about his relationship to the game, of which he claims to have none. Those callers have been spurred on by all kinds of conspiracy theories being drawn up to explain the similarities. TED Talks by the doctor deal with some of the issues and language supposedly appearing in the MGS game, MGS creator Hideo Kojima has talked about how the new game will deal with controversial issues (head-transplants would probably count), and some have even made claims that the doctor isn't a real doctor and this is all just a media stunt (it isn't, Dr. Canavero is a real, published doctor).

Kotaku's UK site got Canavero on the phone and he claimed to have nothing to do with the game or Kojima. As it turns out, Konami used an actor for the character model in question and it's the actor that happens to resemble Canavero. In other words, it's just a weird coincidence. Except Dr. Canavero doesn't think so.

I pointed out his resemblance to the actor from whom Konami actually did the scanning for the three-dimensional model, but he tells me that his lawyer has suggested something different that involves a conference held in Cyprus:

"One of the sponsors was coincidentally a game developer. Maybe some people there...I don't know...maybe they recorded the thing from certain angles, maybe the cameras were set up in the right spots... I do not know. It's just a hypothesis, but maybe it's not too far-fetched."
Cavanero goes on to point out that this isn't such a bad thing, as he's raising money for his HEAVEN project (you know, the whole taking one person's head and sticking it on another person's body thing) and this has brought some additional notoriety to him. That makes this next bit more perplexing:
“I went to the Polizia Postale [the authority in charge of this kind of thing here in Italy] and filed a complaint towards Mr.Kojima. There is also a Twitter account that is not mine, so I reported this to the Police too, they will now investigate both the matters. In the meantime my lawyer is sending a letter to the Japanese company [Konami] to ask for compensation [for using my image without permission].”
Except that it wasn't his image, it was the image of an actor who resembles him. Some people look alike, for better or worse. In any complaint resulting in a court case, it would seem to me that Konami and Kojima need only trot in the actor around which they built the character model and that should be it. Why it should even have to get that far, considering that Cavanero can't stop talking throughout the interview about how beneficial this whole coincidence has been, is beyond me.

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Posted on Techdirt - 6 May 2015 @ 9:02pm

Trademark Dispute Between Brewery And Winery Over Northstar Brand

from the drinking-games dept

Spend five minutes going through the exploding-number of posts we've done over the past two years about trademark scuffles in the craft brewery industry and one thing will become abundantly clear: craft alcohol has a huge trademark problem. Interestingly, craft brewers had had a traditionally amicable set of unwritten rules when it came to trademark disputes, often times choosing to work direclty with each other to find agreeable resolutions and generally being quite awesome to each other when this sort of thing came up. Under those conditions, craft brewing has exploded in popularity and the number of brewers in the United States has likewise exploded. These past two years have seen a departure from the awesomeness of the past, as trademark disputes have become more common.

But the latest trademark dispute involving a craft brewery is going to turn this into a whole different animal, as a brewery and a winery are bickering over the term "Northstar."

A Washington state wine producer this week filed a lawsuit in U.S. District Court against Boulder's Twisted Pine Brewing Company, alleging trademark infringement and other unfair practices. The suit revolves around the local brewery's award-winning Northstar Imperial Porter, which Ste. Michelle Wine Estates says infringes on its Northstar-brand wine by using the same name. The specific complaint, filed Thursday in Seattle, includes allegations of federal trademark infringement, federal unfair competition, unfair competition under Washington State Common Law, Washington state consumer protection violation and common law trademark infringement.
I can't recall whether I did so in public, but I've been telling my fellow Techdirt writers for over a year now that the USPTO needed to get out in front of this exact situation by drawing a distinction between the wine and beer industries. This situation is the reason why. Now that craft breweries are becoming as numerous and popular as the plethora of United States wineries, this clash of brands and terms had to happen. Had a bright line been drawn between these two very distinct industries, which overlap very rarely (winemakers don't often also make beer as a matter of percentages), this suit could have been tossed immediately. Instead, we're forced to ask a really dumb question: would the kind of person likely to buy Twisted Pine's Northstar Imperial Porter be confused into thinking they were buying something from Ste. Michelle Wine Estates because they offer a Northstar-branded wine?

No, they wouldn't. Nobody has ever gone out looking for a specific wine brand and wondered if that brand also sold beer. Conversely, nobody has ever gone out to buy a porter brew and wondered if the brewery bothered to make wine for some reason. That both companies sell alcohol doesn't matter any more than the Atlanta Hawks and Chicago Blackhaws are both sports teams: they operate in two different markets and industries. As Brendan Palfreyman, an attorney involved in the alcohol industry, notes, this is all going to come down to the question of how similar wine and beer are.
"Often times, an important issue in these types of disputes is the relatedness of the goods, because, in order to find trademark infringement, courts will look to not only how similar the trademarks are, but also how similar the goods here. Here, a key issue will likely be whether the court finds that beer and wine are 'related goods' for trademark purposes."
They shouldn't be, period, paragraph. Wine and beer are as distinct as bottled water and soda. Perhaps a ruling in this case will put us on the road to a firm distinction. The craft brewery industry has enough of a trademark problem as it is.

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Posted on Techdirt - 6 May 2015 @ 12:38pm

PGA Joins NHL In Yanking Reporter Credentials Over Use Of Periscope On Golfers Practicing

from the out-of-bounds dept

Well well, this whole anti-Periscope app stuff is certainly becoming a thing. At first it was Hollywood that declared war on the livestreaming app and I said nothing, because I'm pretty sure Hollywood once argued that kittens were piracy-beasts because they might possibly accidentally type "torrent" onto their owners' keyboards whilst trying to get some attention. Then the NHL banned the media's use of Periscope during warmups, but I said nothing because the NHL never misses an opportunity to miss an opportunity when it comes to generating interest in the league. Then the boxing world went after Periscope streams of the Mayweather v. Pacquiao fight, but I said nothing because I honestly wasn't aware that boxing was still a thing nowadays. And now that the PGA has come after my potential Periscoping-golf-enjoyment by threatening to yank journalist credentials, who is left to stand up for me?

Golf reporter Stephanie Wei lost her PGA Tour credentials after she used mobile live-streaming app Periscope to show golfers teeing off in practice at TPC Harding Park last Monday. The tour revoked her access “for the remainder of the season” on Wednesday.

Wei wrote about the incident on her site. She admitted that she had received a warning for Instagramming a video of Tiger Woods’s round at the Phoenix Open earlier this year, but considered this to be a different circumstance since she was filming a practice round that wouldn’t have been televised anyway.
As was the case with the NHL ban of the app, the fact that the streams consisted of footage that was never going to be broadcast apparently didn't matter a lick to the PGA. They simply saw someone using the app and decided to go all Hulk Smash on it. Wei noted that she specifically streamed footage she knew wouldn't make the air because she fully acknowledges that the PGA has broadcasting partners generating a great deal of revenue for golf and that the league would be within its rights to protect all that income. But she then argues that streaming practice sessions that wouldn't make television could only help golf in generating more interest.

The PGA responded with a double-bogey's worth of dumb.
PGA Tour chief marketing officer Ty Votaw didn’t see a difference, telling Golf.com that when Wei posts “unauthorized videos, she’s stealing.”
Putting aside the misuse of the term...stealing what, exactly? There's no consequence here, other than the lost potential to promote the sport and the PGA through streaming that doesn't touch the broadcast footage. What did the PGA have that Wei "stole" from them? To yank the credentials of a reporter over this not only removes potential interest, but it also builds animosity with the press. I would have thought that someone involved in marketing the PGA would know better than this.

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Posted on Techdirt - 4 May 2015 @ 9:06pm

The Virgin Group Disputes Trademark Application Of Tiny Olive Oil Company Vasse Virgin Because Of Course They Did

from the oily dept

The Virgin Group, headed up by Richard Branson, has something of a reputation for being promiscuous when it comes to trademark disputes over the word "Virgin." At times, it seems like whatever lawyers are working for Virgin actually think that any business using the word needs a bit of slapping around, even when there is essentially zero chance of customer confusion. In one case, in which Virgin had targeted a small jeans maker called I Am Not A Virgin out of NYC, the founder of that company quipped in a video whether or not Branson would think that people walking by "Extra Virgin Olive Oil" would be confused into thinking that Virgin Group had something to do with it.

Hahahahahaha... Oh, shit. It turns out Branson does think that's the case. Well, sort of.

[Virgin Group] believes customers might get confused and associate Vasse Virgin products with its renowned global brand. The local company has 23 staff and produces olive oil-based food, soap and skin-care products. Co-owner Edwina Scherini said Vasse Virgin recently tried to register a logo using the same name since 2009.

"The Virgin Group has objected to the application, claiming the right to exclusive use of the word 'virgin'," she said.
Yes, a tiny Autralian olive oil company is now in a trademark dispute with the Virgin Group and we all have to watch what we say from now on, lest we give Mr. Branson any ideas. Now Virgin Group claims on the record that the two companies do indeed compete with one another within relevant industries that would be covered by the trademark, but I can't for the life of me figure out where that's the case. Looking through some information on what Virgin makes, I don't find foodstuffs or olive oil making the list. Regardless, I find it fairly unlikely that anyone is going to confuse Vasse Virgin's oils with something created by the enormous Virgin Group, considering there are no common features in the logos or the marks themselves, beyond the use of the word Virgin. Couple that with Virgin's reputation for being overly protective, and this seems to reek of a legal department with too much time on its hands.

But Virgin says this has nothing to do with olive oil. It's about transportation services contained in the application.
Virgin Group Asia Pacific brand public relations and digital communications manager Elizabeth Gain said the trademark application "covers a very broad range of goods and services, some of which fall squarely into the core activities of the Virgin Group, in particular transportation services".

"Our concerns do not relate to use of the name in connection with olive oil products," she said.
If that were the case, the whole dispute could be easily dismissed with Vasse Virgin assuring everyone that they didn't have enough time in between making olive oil containers to create an international airline. That doesn't seem to be the case, though, as the demands from Virgin Group have been numerous.
Mrs Scherini said lawyers for the two companies have discussed the matter since 2013.

"Vasse Virgin agreed to a number of demands, apart from one that we felt may have the capacity to cause serious damage to our business in the future," she said. Mrs Scherini said the process had been "extremely stressful" emotionally and financially.
Branson and his team bullying a small, unrelated business through trademark? I am so shocked!

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Posted on Case Studies - 1 May 2015 @ 10:50am

Tidal's Failure: A Reminder To Musicians That It's Not Easy To Build A Successful Streaming Service

from the seeeeee? dept

It's become commonplace in some parts of the legacy content industries to hate on basically any successful internet service that brings creative content to the public in a way that people actually like. We see attacks on Spotify, Netflix, Pandora and more for "not paying enough," and demands from those companies that they need to pay more. As we've noted, this often takes the form of trying to kill the golden goose. Almost always implicit in these discussions is the idea that the service itself is worthless and that all of the value comes from the content. That these services deserve to make any money at all is seen as some sort of insult to the copyright holders. The underlying belief here is that the service part is easy.

But, of course, that's wrong. Lots of services try and fail to capture the public's imagination. The content is important (and all of these services pay huge amounts of money -- often way more than half of their revenue to the copyright holders) but building a service people actually want to use is not an easy task. When those who think otherwise jump in and think they can simply "build their own" such service, you hope they would slowly start to understand this point.

You may recall that Jay-Z recently bought and relaunched a music streaming service, naming it Tidal. The whole rollout had severe issues, some of which Mike outlined in the post linked above (the lack of any free tier), and some issues I had myself that dovetail with Tidal's entire marketing platform. You see, Tidal's message was all about how artist-friendly it would be, working itself into a froth over being the anti-Pandora/Spotify/Whatever service, which were all demonized as not paying artists nearly enough money for their music. Which, fine, whatever, it's a message of a sort, I suppose. But to roll that message out with marketing ads featuring insanely wealthy musicians in designer clothes all getting together to talk about ushering in a new service designed to generate more money for themselves (and perhaps newer artists too)? Look, there's nothing wrong with being rich, but that's just bad PR.

And, after the first several weeks since its debut, it seems like Tidal is less a wave and more a ripple.

Tidal is now the 50th most popular music app in the iTunes store, and doesn't even crack the top 700 overall. Any hot new app will see a big drop in downloads after the hype from its launch dies down, but it doesn't look like Tidal was all that hot to begin with. It briefly peaked at #19 overall before falling out of the top 200 less than two weeks later.

Meanwhile, its competitors are surging: Pandora is at #7, Spotify is at #34, and Beats Music just broke the top 50. Even circa-2013 Spotify challenger Rdio is seeing more downloads than Tidal this week.
Not a good showing, especially given all of the star-power behind it. But let's not treat this by dancing on any freshly dug graves. That would be premature anyway, since we are only talking about a couple of weeks worth of market time here. Regardless of that fact, what this should do is teach some artists an important lesson about the difficulty of providing a music streaming platform, the market forces that decided the winners and losers, and the value that a good streaming service brings both to customers and to artists alike.

The whole campaign against Pandora and Spotify has been insane since the very beginning. Streaming services that provide a useful way for customers and potential customers to find, listen to, and to become fans of artists and their work were demonized as greedy technocratic regimes designed solely to make sure singers didn't have enough bus-fare to get home at night. That was silly, of course, as one look at the amount of income those streaming services generate versus what artists wanted in terms of royalties, but the whole thing was really begging for a "If you think it's so easy, come up with your own service" rebuttal. Jay-Z tried to take this on. It's starting to look like he failed.

Failure is okay, but only if you learn from it. The very thing that Tidal failed to offer is what makes the other services so popular.
Some of Tidal’s problems were apparent to anyone who is not a wealthy member of the illuminati or close personal friend of Jay Z: its main value proposition was that, for only 10 dollars a month more than you’re paying for Spotify—that’s just two Starbucks lattes!—you can feed and clothe the famous multimillionaires you see on your screen. But it also had some less obvious flaws, like a very shittily-designed app with broken search functionality and a marketing message—attacking those other, non-artist-benefitting streaming services—that seems to have helped Spotify more than it helped Tidal.
Combined with no free tier, the single selling point for Tidal appeared to be appealing to the masses to use a service that pays artists more money than the others. It didn't work. Not because people do not want artists to succeed, but because the other services work better than Tidal and the artists pimping Tidal did nothing to connect with customers. It was a plea, entirely one-sided, with nothing additional offered to the customer. That's the lesson: streaming services aren't as easy to do as these artists thought. Now let's see if they do anything with that lesson.

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