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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 - 22 June 2018 @ 2:29am

Studios Remove 'Spyware' From Several Games As Gaming Public Revolts

from the just-a-little-spyin' dept

If this is becoming a trend, it's a really, really stupid one on the part of the video game industry. You may recall several recent posts about software, mobile apps, and video games that have sneakily installed what many call spyware onto users' machines, or otherwise inject software without the knowledge of the user. From soccer apps to flight simulator mods, users and gamers sure as hell don't like it when they have to find out from internet sleuths that the software they're using is spying or using them behind the scenes without their knowledge.

And now we learn about Red Shell, a software company that has contracted with multiple game publishers. Red Shell's software is installed alongside games to track all kinds of information about the machines on which those games are played. It gathers information about a gamer's operating system, browser version, IP address and more, all with the goal of feeding information to game publishers to evaluate how effective their advertising models are. We should note here that Red Shell specifically claims that personal information is not collected.

“We don’t collect names, emails, or addresses,” Red Shell says on its website, noting that games can offer an opt-out to players if developers so choose. “Our service basically says ‘this computer clicked on a link from this YouTube video and the same computer played your game.’ We have no interest in tracking people, just computers for the purposes of attribution.”

Whatever lengths Red Shell goes to anonymize this data, the simple fact of the matter is that all of this was done without the knowledge of the gaming public installing these games. And we're talking about a massive amount of games found to include Red Shell software thus far.

The software has been discovered in over 50 games including The Elder Scrolls Online, Conan Exiles, Hunt: Showdown, and Civilization VI. For the past couple weeks, a contingent of players have dedicated themselves to weeding it out, decrying it as “spyware” that many companies failed to disclose.

“Red Shell is a spyware that tracks data of your PC and shares it with 3rd parties,” Redditor Alexspeed75 wrote last week in a thread that’s became something of a rallying place for aggrieved players. “On their website they formulate it all in very harmless language, but the fact is that this is software from someone I don’t trust and whom I never invited, which is looking at my data and running on my PC against my will. This should have no place in a full price PC game, and in no games if it were up to me.”

Since then, publishers have either been removing the Red Shell software from game installs, or else pledging to not use the software in the future. The folks over at Red Shell are not pleased with all of this, obviously, claiming that this is all a case of the public misunderstanding what it's software does and does not do.

And, look, to some extent, Red Shell might be getting an overly bad rap here. What immediately strikes me is how different this story might be had Red Shell or, more importantly, game publishers simply kept all of this known and above board. If gamers were more informed of what Red Shell software does and on what games it's included, I doubt the same kind of outcry would be on display. And, if Red Shell's software is as innocuous as it claims, that kind of disclosure shouldn't have been a problem.

Instead, everyone acted sneaky and is now claiming frustration at the lack of trust the public didn't afford them all retroactively.

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Posted on Techdirt - 20 June 2018 @ 1:36pm

Warner Bros. Turns Harry Potter Fan Events Into Events For The Franchise That Must Not Be Named

from the trademarka-kedavra dept

It's always a weird look for companies and IP owners to go after clear expressions of fandom from their customers. And, yet, this sort of thing is done often, with fan get-togethers or festivals regularly being threatened by the IP owners they're fans of. Often times we hear the usual nonsense trademark law excuse that fans must be served with cease and desist letters, or sued, or else the trademark owner will lose its rights. That, as we've discussed repeatedly, is not true, as there are other options available to the trademark holder besides threatening fans.

Warner Bros. has many of the rights to the Harry Potter franchise and the company has not been shy in the past about firing off threat letters to fan groups and festivals. Previously, Warner Bros. has claimed that it only abused fans in this way if there was a commercial aspect to the events. Even under that policy, the legal team for the studio was, shall we say, imperfect. But Warner Bros. has apparently had something of a policy shift that is causing it to go after far more of these fan events, causing Potter fans everywhere frustration and anger.

"It's almost as if Warner Bros. has been taken over by Voldemort, trying to use dark magic to destroy the light of a little town," said Sarah Jo Tucker, a 21-year-old junior at Chestnut Hill College, which hosts a Quidditch tournament that coincides with the annual suburban Philadelphia festival.

Philip Dawson, Chestnut Hill's business district director, said Warner Bros. reached out to his group in May, letting them know new guidelines prohibit festivals' use of any names, places or objects from the series. That ruled out everything from meet-and-greet with Dumbledore and Harry to Defense Against the Dark Arts classes.

"It was very quickly apparent (we) weren't going to be able to hold festivals like years past," he said. The late October festival drew about 45,000 fans last year to the historic neighborhood's cobblestone streets. This year, they will instead have a "wands and wizards" family night and pub crawl and other magic-themed events — and people can still dress as their favorite characters.

As the AP notes, this policy shift is causing these notices to go out to festivals all over the country, each time stating that new policies prohibit this sort of fan-fun at local festivals. As is often the case, Warner Bros. is claiming that trademark law requires it to take these exact actions. Again, this is not true. The studio has many other options, including offering a cheap license to the festivals to allow the fun to go on while having them be officially sanctioned. That it chose not to pursue that course means that Warner Bros. is squarely more interested in being a legal bully than it is in allowing fans of its franchise to celebrate their fandom.

It's an especially stupid track to take, given that these organic fan festivals are certainly in some part responsible for propelling the Potter franchise to the stardom it has now achieved.

Philadelphia Potter fan Sarah McIntyre thinks it's ridiculous for Warner Bros. to target the festivals.

"They are acting like the Dursleys," said the 34-year-old yoga teacher and bookkeeper. She said they should be encouraging communities to bring Harry Potter to life. "Creating interest in the franchise would increase revenue," she said.

How this is not obvious to the folks at Warner Bros. is beyond me. The studio ought to want people talking about the franchise as widely as possible and it's hard to see how fan events at local festivals would do anything other than cause new potential consumers of the franchise to generate some interest in it. As the AP takes pains to note, Warner Bros. is certainly within its rights here, or is at least likely so. But that doesn't make this is a smart business decision, never mind the most optimal outcome for its franchise. Instead, it comes off as purely unfriendly to fans, which is just not a good look for an entertainment product.

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Posted on Techdirt - 19 June 2018 @ 7:33pm

More Taco Tuesday Trademark Stupidity, This Time Down Under

from the trademark-tuesday dept

Some of us believe that all the different nations of the world are filled with people that are mostly the same, that share the same values, and the same troubles. If only we could find some unifying issue or force that could fully bring us together, then we could finally live in a kind of Lennon-esque harmony with one another. I submit to you that perhaps stupid trademark stories revolving around "Taco Tuesdays" could well be that thing. In America, for instance, a chain called Taco John's has spent the past few years waving around the trademark the USPTO stupidly gave it on the both generic and descriptive term "Taco Tuesdays", insisting that every other business that uses it stop immediately. How this mark was ever granted, given that it describes a good offered on the day it is offered -- tacos on a tuesday -- is a question that has kept me up many a night. Despite the trouble Taco John's has caused with this, the trademark remains registered and in place.

And now it appears that Australia has its own version of this, featuring another company waving around another trademark for "Taco Tuesdays" that never should have been granted.

A stone’s throw into the city’s wild west sits Footscray’s Reverence Hotel, famed for its live music and cheap Tuesday tacos. After six years of dishing up the spicy fare, the landmark corner hotel is suddenly feeling the heat over a claim that it is infringing a trademark held by Mexican food chain Salsas Fresh Mex, which has outlets dotted across Melbourne including a site at Highpoint shopping centre. A letter from Salsas Holdings marketing manager Rebecca Woods to The Reverence Hotel demanded it stop using the phrase ”Taco Tuesday” on its website and social media accounts.

“We assume that you are unaware that Salsas is the owner of the registered trade mark TACO TUESDAY in respect to the provision of Mexican-style food and restaurant services,” it states. “The Mexican-style food offered by Salsas under that trademark has become extremely well and favourably known among members of the public in Australia, and as a result is associated with Salsas.”

I'm going to keep hammering on this until someone listens, because this trademark is not valid. Period. Paragraph. Full stop. It does not identify a source. The phrase itself is generic and common in both the restaurant industry the world over and even in homes around the world. Tuesday is for tacos and nothing about the phrase has anything to do with any individual person or business.

The folks at Footscray's had this same reaction in the most punk venue way possible.

Publican Matt Bodiam said his first reaction on opening the letter on Wednesday was amusement, but he soon realised the potential seriousness.

“I had a bit of a giggle, then [thought] I better look into it,” he said. “I can’t believe someone can trademark ‘Taco Tuesday’; it would be like trademarking ‘Happy Hour’ or ‘Tight-Arse Tuesday’, although perhaps someone has trademarked those as well.”

Actually, the "happy hour" reference is only half right. In that phrase, we have an example of the generic language tons of businesses use. Taco Tuesdays is the same in that respect, except it's also descriptive. This isn't the protection of the consuming public, the very point of trademark law, but rather the locking up of language for commercial purposes. And it's dumb.

But it also works. Salsas has enough of a legal warchest to make Footscray's fighting the good fight on this an absurd notion. It is far easier and less expensive to simply cow to the demands of the trademark bully than putting up a fight in court. Trademark bullying, in other words, works. But perhaps not without giving creative punk venue owners the last laugh.

Mr Bodiam said The Reverence would continue selling tacos on Tuesdays, but the night is now listed on its site as “Taco Sueday”.

Bravo, sir.

14 Comments | Leave a Comment..

Posted on Techdirt - 19 June 2018 @ 3:37pm

President Trump Directs Pentagon To Create A 'Space Force' In What Is Surely Not Any Kind Of Distraction From Crying Children

from the three-card-donnie dept

You may recall that about this time last year, the House of Representatives put together a budget that included funding for a brand new military branch dubbed the Space Force. At the time, our take is that this was always inevitable, as humanity tends to carry its war-making luggage everywhere we go and, since we go to space, we're going to have a Space Force. More surprising was the pushback from those who have a thing or two to say about military matters, such as Secretary of Defense James Mattis, who noted that setting up a new military branch was hellishly complicated, and required congressional approval.

Mattis, in a letter to Rep. Mike Turner -- an Ohio Republican leading the congressional effort against the Space Corps -- said he was opposed to adding "additional organizational and administrative tail" to the Pentagon.

"At a time when we are trying to integrate the Department's joint warfighting functions, I do not wish to add a separate service that would likely present a narrower and even parochial approach to space operations," Mattis wrote.

One can read that as government-speak for: "No, this is stupid, why are you proposing this, everything is going fine, hey, is this thing even on?" Currently, space-based operations for the military are headed up by the Air Force Space Command. There is no denying that orbital operations are critical to the success of the United States military, given all of the satellite assets currently floating around the near-inky void. There has also been no indication that the Air Force is not up to the job, given the current lack of space-based infantry skirmishes or ground (ahem) operations.

This week, however, President Trump directed the Pentagon to create his new Space Force. It would be absolutely absurd not to notice the timing of the announcement that grabbed at least some of the headline space from news organizations that would otherwise have been directed at video and audio of toddlers in cages as they wept openly for their parents. It seems the Dear Leader couldn't help but notice this timing either, even as he made his announcement.

In remarks that ranged over a variety of unrelated topics, Mr. Trump began by saying current U.S. employment levels were the best "in recorded history" and blaming current immigration problems on the Democrats, saying "we have the worst immigration laws in the entire world" and that ongoing issues could be resolved "very quickly if the Democrats come to the table."

Turning his attention to space, the president praised the National Space Council and its chairman, Vice President Mike Pence, for its work re-focusing national space policy, saying "for too many years, our dreams of exploration and discovery were really squandered by politics and bureaucracy. And we knocked that out."

"My administration is reclaiming America's heritage as the world's greatest space-faring nation," he went on. "The essence of the American character is to explore new horizons and to tame new frontiers. But our destiny, beyond the Earth, is not only a matter of national identity, but a matter of national security."

Look, space exploration is sorely in need of funding. That said, nothing about creating a new fighting force for space is going to be quick, easy, or bring about the kinds of results we could see either by funding current space exploration organizations (hey, remember NASA?) or private companies now taking up the challenge. As the Pentagon noted in its response, this foray into the final frontier is going to take a long, long time to set up.

The Pentagon's chief spokesperson Dana W. White issued a statement suggesting the process will take some time.

"We understand the President's guidance. Our Policy Board will begin working on this issue, which has implications for intelligence operations for the Air Force, Army, Marines and Navy. Working with Congress, this will be a deliberate process with a great deal of input from multiple stakeholders."

One can read that as Pentagon-speak for: "Uh, okay, but this is going to take, like, forever." Which, honestly, is probably besides the point. Whatever you might think of the current politics and immigration policy on display, there is little denying that this grand announcement came on the heels of a deluge of negative press and headlines for the President. Whatever side of the political spectrum you're on, hopefully we're all in agreement that space operations are important. If we do, then we should likewise agree that callous calls for massive new programs and full military branches being used as a distraction are an affront to that importance.

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Posted on Techdirt - 15 June 2018 @ 7:39pm

In Defense Of Ubisoft: Crowdsourcing Game Content Creation Is Actually Fun And Non-Exploitive

from the cwf+rtb dept

Crowdsourcing has obviously now been a thing for some time. Along internet timelines, in fact, crowdsourcing is now something close to a mature business practice and it's used for all manner of things, from the payment for goods created, to serving as a form of market research for new products and services, all the way up to and including getting fans involved in the creation and shaping of an end product. The video game industry was naturally an early adopter of this business model, given how well-suited the industry is to technological innovation. Here too we have seen a range of crowdsourcing efforts, from funding game creation through platforms like Kickstarter to empowering supporters to shape the development of the game.

In that last example, it was Double Fine and Tim Schafer getting gamers involved in what would otherwise be the job of the creative team behind their game. The personalities here may matter greatly, because Ubisoft has recently unveiled an attempt to further get their fans involved in the game-creation process, yet many people are up in arms over it. Let's start with what Ubisoft is attempting with its anticipated next installment in the Beyond Good & Evil franchise.

The long-awaited sequel to a 2003 Ubisoft game that was critically loved but flopped at retail, Beyond Good and Evil 2 will take place in an open universe full of strange creatures and cultures. During its E3 press conference, Ubisoft said that fans will be able to help populate that universe with their own music and artwork through a partnership with a company called HitRECord, with that company’s founder, actor-turned-entrepreneur Joseph Gordon-Levitt, appearing on stage.

The HitRECord-powered Space Monkey Program allows fans to submit ideas and works into a series of musical and visual categories like “devotional music,” “anti-hybrid propaganda,” and “anti-establishment art.” Other fans can then comment on and remix those works, which will ultimately be evaluated by HitRECord and—if they fit the game well enough—sent along to Ubisoft. Everybody who’s contributed at all to an accepted work will be paid.

If you're anything like me, your reaction to this was purely positive. Fans of Ubisoft titles and Beyond Good & Evil get to contribute to the game in a way they will recognize and be paid some amount of money for? How cool is that? Collaboration with fans on the creation of art is squarely in the realm of our CwF+RtB formula. To add some compensation to that makes this all the better. And, in my opinion, if this were anyone but Ubisoft doing this kind of thing, nobody would be pushing back on it at all. But because of Ubisoft's sketchy reputation, many are viewing this through purely cynical glasses and seeing nothing other than a company trying to avoid paying the full rate for the creation of its game.

Almost immediately after Ubisoft’s conference, critics and developers started asking questions: Why not just pay full-time, salaried developers to do this work? What happens if fans’ work doesn’t get accepted? Do they not get paid? Did they do it all for nothing?

Scott Benson, the co-creator of the indie game Night in the Woods and a vocal advocate for workers’ rights, pointed out that HitRECord’s business model seems to rely on what’s known as “spec work,” short for “speculation.” This is a common but nonetheless ethically muddy practice in creative and design fields. When you do work “on spec,” you’re producing something that a buyer might decide to pick up and then pay you for.

Great, except this isn't being done in the "creative industry" at all, but rather directly with fans of the game franchise. Were Ubisoft trying to strong-arm artists for content it would otherwise pay for up front, then, yeah, this would suck. That's not what it's doing at all, though. Instead, the company is going directly to fans and asking them, rather than coercing them, to get involved in the project in a way those fans will find meaningful. Does this have the happy coincidence of being somewhat less costly? Sure. There's no denying that. But so what? If fans of a game are able to compete with the art created by the creative industry and want to do that type of thing under this platform, where exactly is the ethical dilemma? Were Benson to have his way, fans should be denied this opportunity because... why? Because someone else might not get paid? Where is the sense in that?

There's also something to be said for HitRECord's meta-crowdsourcing experiment here and how interesting it will be to see if it can be pulled off.

“At HR, people build on each other’s ideas, and our website (and community) keeps track of how projects evolve—and how ideas influence one another,” HitRECord executive producer Jared Geller said in an email, noting that the company has paid out a total of nearly $3 million since it was founded in 2010. “So any contribution that is included in any of the songs or visuals (guitar parts, vocal stems, etc) delivered to the Beyond Good and Evil 2 dev team will get credited and paid. If your contribution isn’t used, you don’t get paid.”

So it's not just milking a fanbase for cheap labor, but allowing that fanbase to them play off of one another and build a community product, which will then be injected into the game and for which they will be paid. I mean, come on, if everyone could take their labor union hats off for just a second, they'd have to admit how cool an experiment this is. And, while HitRECord will have the ultimate decision-making authority on how compensation is divvied up between creators, it even takes feedback from multiple creators into account when making those decisions.

The one area where there might be real concern is copyright infringement.

There are other possible complications, as well, said a representative of NoSpec, an organization that advocates against the practice of spec work.

“When people who participate in spec work know that the chance of payment is slim-to-none, it invites the fastest possible turnaround, and we’ve found that spec websites (those that sell design contest listings) are rife with plagiarism,” wrote the rep in an email.

There is truth to this and Ubisoft and HitRECord have better have their shit in order if they don't want to turn this into some hellscape of accusations about plagiarism and copyright infringement. But if they can pull this off, the end result is going to be the injection of the voice of the fan directly into its game, which is about all we could hope for coming from a content producer.

I'll end this with a thought experiment. Imagine for a moment if I had written this same post, except I did a find/replace for "Ubisoft" and replaced it with "Sole game creator." Does anyone really think the same level of outrage would exist? If not, then this isn't a moral question at all, but a monetary one. And if that's the case, it should go without saying that Ubisoft's reputation shouldn't prevent it from being able to try something good and cool with its fans.

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Posted on Free Speech - 15 June 2018 @ 12:09pm

Tanzania Forces 'Unregistered Bloggers' To Disappear Themselves

from the the-internet-enemy dept

The internet is many things to many people. Some of these things are good, while others are bad. Still, it should be fairly uncontroversial to say that the internet has generally done a good job of empowering ordinary people. With the advent of a platform sans gatekeepers, millions of people suddenly had a voice that they would not otherwise have been afforded. The result of this has been the explosion in blogs, podcasts, forums, and other outlets. The internet brings the ability to reach others and that has resulted in an explosion of thought and speech.

It will come as no surprise that plenty of national governments throughout the world aren't huge fans of their people suddenly having this sort of voice and reach. After all, that kind of free expression can often times come in the form of critiques of those very governments, and that kind of reach can create movements of dissent. You may recall back in April when Glyn Moody detailed Tanzania's attempt to tamp down this critical speech by forcing bloggers to register with the government at a cost greater than the average per capita income of its citizens. While this was a fairly naked attempt to keep the voices of its citizens from being heard, Glyn pointed out that the Tanzanian government was at least attempting to be cynically subtle about it.

The current Tanzanian government is not very happy about this uncontrolled flow of information to the people. But instead of anything so crude as shutting down blogs directly, it has come up with a more subtle, but no less effective, approach.

What a difference a few months make in the actions of an authoritarian regime. It seems this more subtle approach did not have the desired effect, as the Tanzanian government has now ordered that all unregistered bloggers simply shut themselves down or face criminal prosecution.

Tanzania ordered all unregistered bloggers and online forums on Monday to suspend their websites immediately or face criminal prosecution, as critics accuse the government of tightening control of internet content. Several sites, including popular online discussion platform Jamiiforums, said on Monday they had temporarily shut down after the state-run Tanzania Communications Regulatory Authority (TCRA) warned it would take legal action against all unlicensed websites.

Digital activists say the law is part of a crackdown on dissent and free speech by the government of President John Magufuli, who was elected in 2015. Government officials argue the new rules are aimed at tackling hate speech and other online crimes, including cyberbullying and pornography.

If this all sounds familiar to you, it should, because actions like these were very much the precursors to the Arab Spring. These types of attempts to control the internet, a platform that is well-designed to route around this type of control, rarely work for exactly that reason. People will generally find a way if they are motivated enough, which is what makes trying to disappear dissent a government's first reaction so potentially disastrous.

Critics of this move are predicting the demise of Tanzanian blogging.

The Paris-based Reporters Without Borders group has said the new online content rules “will kill off Tanzania’s blogosphere”.

Perhaps that's right. Or, perhaps, a move like this does more to spell the end of an authoritarian regime than the demise of a commonplace internet function that is ingrained into the human spirit.

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Posted on Techdirt - 14 June 2018 @ 8:05pm

Danish Anti-Piracy Lawyers Jailed For Real, Actual Stealing From Copyright Holders

from the three-times-is-a-trend dept

There's an old saying: once is an accident, twice is a coincidence, and three times is a trend. It seems now we are officially in the coincidence part of that mantra. You will recall that we recently discussed famed author Chuck Palahniuk's apology for blaming piracy for his stagnant finances when the real story was that a business partner at his literary agency was simply stealing money from him. We noted at the time that this business partner was the one feeding Palahniuk the false story that piracy was responsible for his dwindling money and that such a story was made believable in part because of the efforts of the copyright industry and its lawyers demonizing the internet and copyright infringement at every turn.

Well, recent news reports detail the sentencing of three Danish lawyers to years in prison for defrauding their copyright holder clients, while supposedly working for them on anti-piracy efforts. The organization now known as Rights Alliance, previously Antipiratgruppen, had hired lawyers from the Johan Schluter law firm for representation in piracy cases. The firm worked on these efforts for Rights Alliance for years before an audit showed just how shady these beacons of justice for rightsholders actually were.

Following an investigation into the company’s accounts by auditing company Deloitte, financial irregularities amounting to millions of dollars were reported in the media during 2015. The Johan Schlüter law firm should have been distributing huge sums to movie and TV industry associations and their underlying rightsholders but its three partners – Johan Schlüter himself, Lars Halgreen and Susanne Fryland – had been lining their own pockets instead. Massive sums were siphoned away from their clients.

Yesterday, after more than 20 hearings during which the defendants maintained their innocence (with Schlüter and Halgreen painting themselves as victims of Fryland’s actions), all three were found guilty of fraud and false accounting to the tune of 100 million Danish kroner (US$15.83m).

Now, look, there are shitty people in every profession and I dare say that the legal industry is not underrepresented. Still, it says something that the very law firm rightsholders and an anti-piracy group hired in order to recover supposed losses of income due to piracy was itself bilking rightsholders to the tune of eight figure sums. And far from simply not reporting money collected, the Johan Schluter firm's incestuous relationship with groups "protecting" rightsholders, and the manner in which the firm used that relationship in order to improperly invoice for services not rendered, was spotlighted during the trial.

It transpired that in addition to being a partner in the law firm, Susanne Fryland was also a director of a subsidiary company which was responsible for managing registration, collection and administration rights for various film and TV associations. The prosecutor presented an email sent by Fryland to the account manager at the subsidiary noting that Johan Schlüter in Copenhagen was “screaming for liquidity”. When asked who was screaming, Fryland pointed the finger at Schlüter and Halgreen.

“When they looked at liquidity in Copenhagen, did Susanne Fryland print an invoice to an association?” the prosecutor asked.

“Yes,” Fryland confirmed.

All three lawyers have either been banned from practicing law, sentenced to prison, or both. And this is the firm that represented rightsholders against Danish citizens in piracy cases. While none of this excuses piracy or copyright infringement, boy, it sure would be nice if copyright holders and anti-piracy groups, paragons of virtue as they portend to be, wouldn't mind not using the shadiest lawyers they can find in their efforts.

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Posted on Techdirt - 12 June 2018 @ 10:42am

Popular Spanish Soccer Mobile App Has Been Turning Users Into Piracy-Spotters Via Mobile Devices

from the unwitting-spy-network dept

As readers here will already know, the GDPR is now in full swing in Europe, with all of its crippling and stupid regulation in the name of personal privacy. It's a hilariously overly broad law that has had the happy coincidental effect of forcing companies that store personal data to at least be more upfront about how they are using that data. This effect has caused some to embrace the GDPR as wholly good, which is exactly the wrong conclusion to draw. Instead, the GDPR swings way too far in the direction of users controlling their personal data mostly by reaching way too far and keeping its language as vague and broad as possible, something that is already causing chaos in the digital marketplace.

And, yet, it cannot be ignored that the revelations of just how users' data are being abused by some bad actors keep coming. The latest of these concerns the mobile app for La Liga, Spain's most popular soccer league. La Liga recently revealed, having its hand forced by the GDPR, that users of its mobile app were unwittingly part of La Liga's spy network for uncovering unauthorized broadcasts of soccer matches at public venues.

The La Liga app, which is the official streaming app for Spain’s most popular football league, has reportedly been using the microphones on fans’ phones to root out unauthorized broadcasts of matches in public venues like bars and restaurants.

It sounds exactly like the kind of surveillance people are afraid of when it comes to modern technology, but as is often the case, the La Liga app technically asks users in Spain for permission to access their mics, according to Spanish Website El Diario.

Technically, yes, except that this request is buried in the fine print of an opt-in request the app makes for user permissions that nobody ever reads. One need only review the horror of many users of the app at this news to understand that many (most? all?) of the app's users had absolutely no idea that they were serving a soccer league's attempt at ratting out their favorite watering holes and restaurants. It also appears that this technique has been in place for years, and La Liga only drew recent attention to it due to the GDPR being enacted.

La Liga has pushed back on the concerns of its users and the press coverage, stating that it doesn't retain any of this data locally and that it converts the recordings into pure code, which is something of a non-sequitor. Either the data gathered is useful because it combines GPS data and audio recordings in a way that can pinpoint where a user is and what is on the television screens there... or it isn't. Whatever the technical specifics, the end result is a soccer league peeking in on soccer fans as they watch matches, with most of those fans having no idea that this was occurring at all.

Again, the GDPR is not a solution to this problem. For proof of that, you can note that La Liga says in its statements that everything here is above board. This has far more to do with just how much important privacy-implicating notifications are buried in fine print that goes unread by the masses.

Why anyone would download the La Liga app in the future would be a mystery to me.

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Posted on Techdirt - 8 June 2018 @ 12:02pm

Chuck Palahniuk Apologizes For Blaming Piracy For His Business Partner Stealing His Money

from the it-really-was-stealing-this-time dept

Chuck Palahniuk has long been a personal hero of mine. Back when I fancied myself a fiction writer, I gobbled up his books, engrossed in the characters he was able to create. It was only years later, then writing for Techdirt, that a chip in my impression of Palahniuk emerged when he started his habit of blaming his finances on the piracy of his works. Palahniuk claimed that piracy was responsible for his "dwindling income." This, despite selling a ton of books and movie options, sounded strange -- especially given that book piracy is much more limited than things like music, movies or software. Where was he getting it from?

Well, Palahniuk himself answers that question in a recent blog post on his site. It turns out the idea that piracy was to blame for his money troubles came from the accountant in charge of his royalties at his literary agency. That same accountant, it turns out, has now been charged with defauding the agency out of millions of dollars. Palahniuk now says he knows exactly what dwindled his income and it wasn't piracy.

On the plus side I'm not crazy. For several years my income has dwindled. Piracy, some people told me. Or the publishers were in crisis and slow to pay royalties, although the publishers insisted they'd sent the money.

You may have read about this over the weekend in the New York Post. All the royalties and advance monies and film option payments that had accumulated in my author's account in New York, or had been delayed somewhere in the banking pipeline, it was gone. Poof. I can't even guess how much income. Someone confessed on video he'd been stealing. I wasn't crazy.

If you've written to me chances are that your letter passed through the hands of the accused. He'd collect the mail and forward it to me. He seemed like a good guy. Like a prince of a guy. Like man-crush material. And then he wasn't.

And so now Palahniuk says he is close to broke. It's a heartbreaking story, for sure, to have a great author in financial ruin because of the fraud perpetrated by another. But one thing worth calling out here is that piracy has become so prevalent a scapegoat in the copyright industries today that someone as intelligent as Palahniuk accepted it as the reason for not being paid, even when he claims his mental warning bells were going off roughly all the time. This is the danger in industry groups scapegoating piracy as the world's greatest evil. And, frankly, how much daylight exists between Palahniuk's story and that of all those deprived of income through the magic of "Hollywood accounting", through which even the guy who played Darth Vader can't get residuals from Jedi over claims that the movie has somehow not been profitable?

Not much at all, I would argue. It ought to be enough to counter the claims that piracy is responsible for the woes of content creators by simply pointing out that it just isn't true, but we would do well to understand that the industry mantra blaming piracy is in part responsible for artists like Palahniuk buying into the hype and being swindled.

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Posted on Techdirt - 8 June 2018 @ 3:32am

Valve Decides To Get Out Of The Curation Business When It Comes To 'Offensive' Games

from the the-good-and-the-bad dept

As we've said in the past, Valve has always had a tricky line to walk with it's Steam platform, having to straddle the needs of both the gamers that use the service and the game developers that make it worthwhile. Frankly, it's walked this line fairly well for the most part. The platform, which was always popular, has exploded as the place to release a new game title online. As we noted way back in ye olde 2016, this popularity has also presented a problem for Steam: saturation. There are now simply so many games available on the platform that blindly wading into it and expecting to find new content you didn't know you wanted is a dicey proposition at best. More content is an undeniably good thing, but it would be silly to suggest that the deluge of new games released in the past few years hasn't also had a deleterious effect on the usability of the platform.

Our solution? It won't surprise you. We advocated that Steam empower the gamers that use it to act as curators. If done properly, this would allow an ecosystem of trusted advisers among gamers that share interests to tell them which titles they should be looking at. To that end, Steam subsequently employed a curators program within the platform that attempted to build exactly this ecosystem. To date, it's been mediocre at best.

But this isn't the only publicized problem Steam has had in recent days. In addition, the platform has been in the news for its wishy-washy but ultimately heavy-handed approach to games that have either mature sexual content or are offensive to large swaths of people. Combinations of so-called sex-games and games that make such topics as school shootings central to gameplay have been banned, or not, often to much critique from every side from gamers.

The concept of empowering its community to serve as its own filters and the no-win situation when it comes to offensive games has now collided, causing Valve to announce that it's getting out of the game content moderating business entirely.

In a blog post musing on the difficulty of deciding on a case-by-case basis what should and should not be allowed on Steam, Valve’s Erik Johnson explained that the company does, in fact, have a team of humans that looks at “every controversial title submitted to us,” and employees frequently disagree like Steam users do. “The harsh reality of this space, that lies at the root of our dilemma, is that there is absolutely no way we can navigate it without making some of our players really mad,” Johnson wrote.

“We’ve decided that the right approach is to allow everything onto the Steam Store, except for things that we decide are illegal, or straight up trolling,” said Johnson. “Taking this approach allows us to focus less on trying to police what should be on Steam, and more on building those tools to give people control over what kinds of content they see.”

There are two reactions that leap immediately to mind. First and foremost, this will be a good and useful experiment by Valve. Empowering customers and communities is almost always the right approach. Acting as a gatekeeper or the warden managing the walled garden is not an approach we believe in. Moreso, an approach by a company that puts its trust in the everyday customer is typically an inherently consumer-friendly one. The ideals behind this kind of move are a good one. Censorship sucks, choice is better.

On the other hand, the other immediate reaction has to be that Valve had damned well better have its user tools in order when it rolls this out en masse, because two things will happen otherwise. Most directly, gamers who are being inundated with games and content they find horrifying, offensive, or otherwise view negatively are going to be fully up in arms. It's easy to imagine families that game together, between parents and young children, losing their shit if the Steam homepage is suddenly full of games laden with overt sexual content or school shootings.

Even more so, if you thought the floodgates had been open when it came to the sheer volume of titles on Steam previously, this is going to introduce a potential tidal wave of new games onto the marketplace. If Valve isn't supremely prepared to empower users now with far better curating tools than it already has, the platform is likely going to take a severe dip in its usability as a place to discover games.

In other words: decent idea, assuming Valve has put a ton of thought into how this will impact its platform.

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Posted on Techdirt - 7 June 2018 @ 2:09pm

MUSO, Of All Groups, Tells Copyright Holders To Get Their Shit Together And Treat Pirates Like The Customers They Are

from the about-time dept

While the copyright industries love to frame so-called "pirates" as nefarious freeloaders who simply want to consume content for free, it's been an open secret for some time now that these freeloaders are often outspending non-infringers on entertainment across the spectrum. Despite this clear indication that piracy is largely a problem of under-served customers, industry groups like the RIAA still prefer to play pretend with these obvious business metrics. The end result of this is that industry and anti-piracy groups essentially advocate for the attack of their constituents' best customers, which ought to be about as insane a thing as one can imagine.

But perhaps the tide is turning. An indication of that would be MUSO, the piracy-tracking group, essentially telling copyright industries to get their shit together and finally treat pirates like the great customers they tend to be. The report is based on a MUSO survey showing that 60% of UK citizens admit to engaging in copyright infringement, except the overwhelming majority of those "pirates" first tried, and failed, to get that content legally.

Of all the people surveyed the vast majority, 60 percent, admitted that they illegally streamed or downloaded music, film or TV-shows in the past. This could have been yesterday or even two years ago. Interestingly, the same pirates often try legal sources first. In fact, 83 percent say they usually try to find what they are looking for through official channels before trying anything else. This suggests that most pirates are also legal consumers.

“The entertainment industry tends to envisage piracy audiences as a criminal element, and writes them off as money lost – but they are wrong to do so,” says Paul Briley, CCO of MUSO, commenting on the findings. “The reality is that the majority of people who have gone through the effort of finding and accessing such unlicensed content are, first and foremost, fans – fans who are more often than not trying to get content legally if they can.”

First, a slow golf clap for MUSO finally getting what we've been saying for years. But a more sincere applause should be directed at MUSO, a piracy tracking outfit, turning the tables on the copyright holders that often use its reports to decry modernity, holding them accountable for what has always been a business model issue. Based on the same survey, the majority of pirates gave up on legit sourcing for content when they either could not find the content they wanted legally, or found that it was "siloed" in a service to which they do not subscribe. Barely a third indicated that cost or money had anything to do with it.

Sort of blows the whole "pirates just want stuff for free" thing out of the water, doesn't it? Not to mention that these "pirates", who supposedly want everything for free, spend a shit-ton of money on non-free entertainment.

MUSO’s survey reveals that 91% of all pirates already have a streaming subscription, such as Netflix, Amazon Prime, Spotify or Apple Music. That’s more than their non-pirating counterparts, of which less than 80% subscribe to one of these services.

The problem is that people sometimes need over a dozen separate subscriptions to access all the content they want. There’s no single service that offers everything in one place. This is one of the main reasons why piracy is still very relevant.

If the copyright industries wanted to change the piracy landscape in an instant, they need only slay the monster that is delivery fragmentation. People are perfectly willing to pay for content, but the monetary and mental costs of incorporating five different streaming services, and then having to search across all of those services for a particular piece of content, falls prey to the ease of piracy. And that ease is exactly what the content industries should either be selling themselves, or partnering with others to sell, because that convenience is the product.

If nothing else, the mantra of piracy being about freeloaders should be dead.

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Posted on Techdirt - 6 June 2018 @ 3:40am

FlightSimLabs Installs More Questionable Stuff On Users' Machines, Then Threatens Reddit

from the bumpy-landing dept

Hopefully you will recall FlightSimLabs, the company that makes custom add-ons for computer flight simulation software. FSL made it onto our pages after a Reddit user noticed that every installation of FSL software, including that of a legitimate purchase, installed a file named "test.exe" which was not just a form of DRM, but which also serves as a Chrome password dumping tool, extracting user names and passwords from people's web browsers. Whatever the fuzzy line between DRM software and malware, FLS's installation of its text.exe file clearly leapt over that line with a flourish. The backlash in the Reddit communities and elsewhere was swift and severe, leading Lefteris Kalamaras, who runs FSL, to release the following statement.

We have already replaced the installer in question and can only promise you that we will do everything in our power to rectify the issue with those who feel offended, as well as never use any such heavy-handed approach in the future. Once again, we humbly apologize!

And that really, really should have been the end of it. If nothing else, the backlash from the community should have informed FSL as to the precise tolerance its customers had for this type of nonsense, which is to say zero. Amazingly, despite Kalamaras' promise, it appears FSL tried to give this DRM thing another try, and somehow managed to make itself look even shittier in the process.

Just before the weekend, Reddit user /u/walkday reported finding something unusual in his A320X module, the same module that caused the earlier controversy.

“The latest installer of FSLabs’ A320X puts two cmdhost.exe files under ‘system32\’ and ‘SysWOW64\’ of my Windows directory. Despite the name, they don’t open a command-line window,” he reported. “They’re a part of the authentication because, if you remove them, the A320X won’t get loaded. Does someone here know more about cmdhost.exe? Why does FSLabs give them such a deceptive name and put them in the system folders? I hate them for polluting my system folder unless, of course, it is a dll used by different applications.”

If you don't have a technical background at all, essentially FSL attempted to deliver DRM again onto users' machines, but named the files to mimic a common Windows background file that users see all the time. It's actually quite common for a user opening Task Manager to see several instances of cmdhost.exe running at once. In other words, it's the kind of thing nearly everyone would scroll past, assuming its legit.

As several people on Reddit have pointed out, this sort of misleading naming of software services is a hallmark of malware.

“Hiding something named to resemble Window’s “Console Window Host” process in system folders is a huge red flag,” one user wrote.

“It’s a malware tactic used to deceive users into thinking the executable is a part of the OS, thus being trusted and not deleted. Really dodgy tactic, don’t trust it and don’t trust them,” opined another.

Why FSL seems to get all of its best ideas from the realm of malware is an open question. The company put out a statement explaining that the file is a part of its product activation software and that the file had been vetted by every major antivirus maker out there. Both appear to be true, which doesn't even begin to explain why FSL, having had its reputation so thoroughly tarnished recently, thought pulling this name convention trick with its DRM was a good idea. Reddit users remained on the warpath, causing FSL to really torpedo its reputation even further.

In private messages to the moderators of the /r/flightsim sub-Reddit, FSLabs’ Marketing and PR Manager Simon Kelsey suggested that the mods should do something about the thread in question or face possible legal action.

“Just a gentle reminder of Reddit’s obligations as a publisher in order to ensure that any libelous content is taken down as soon as you become aware of it,” Kelsey wrote.

Noting that FSLabs welcomes “robust fair comment and opinion”, Kelsey gave the following advice.

“The ‘cmdhost.exe’ file in question is an entirely above board part of our anti-piracy protection and has been submitted to numerous anti-virus providers in order to verify that it poses no threat. Therefore, ANY suggestion that current or future products pose any threat to users is absolutely false and libelous."

The letter concluded with the suggestion of how much FSL would just hate to have to get their lawyers involved if the Reddit moderators left the critical posts up. The mods refused to comply, leading to FSL sending another message to the moderators accusing the critical posts of being defamatory and, if not cleaned up, the company would have "no choice" but to send in the lawyers.

Just to be clear, the legal threats here are nonsense. Contrary to the claims in the message, Reddit is not under any "obligation as a publisher" to take down such content, thanks to CDA 230. Oh, and all of that presumes that the original content is, indeed, libelous. Which it is not.

The mods again refused, while also accusing FSL of trying to game Reddit's voting system to push down critical posts.

“While what you do on your forum is certainly your prerogative, your rules do not extend to Reddit nor the r/flightsim subreddit. Removing content you disagree with is simply not within our purview.”

The letter, which is worth reading in full, refutes Kelsey’s claims and also suggests that critics of FSLabs may have been subjected to Reddit vote manipulation and coordinated efforts to discredit them.

Once again, responding to internet posts and comments a company doesn't like by trying to censor them, particularly after going through a reputational gauntlet previously, might just be about as dumb as it gets. Between the DRM, the shady installation of software, and the anti-consumer behavior to cover it all up, one wonders what flight simulator mod could possibly be worth engaging with FlightSimLabs ever again.

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Posted on Techdirt - 4 June 2018 @ 8:09pm

San Diego Comic-Con Petitions Judge To Have Salt Lake Comic Con Pay Its Attorney's Fees, Bar It From Calling Itself A 'Comic Convention'

from the don't-describe-yourself dept

Perhaps you thought that the legal drama between the famous San Diego Comic-Con and the Salt Lake Comic Con was over. Our ongoing coverage of this trademark dispute stemming from SDCC somehow having a valid trademark on "comic-con", a shortened descriptor phrase for a comic convention, largely concluded when SDCC "won" in court, being awarded $20,000 after initially asking for $12 million in damages. With the focus now turning to the roughly gazillion other comic conventions that exist using the "comic-con" phrase in their names and marketing materials, this particular dispute seemed to have come to a close.

But not so much, actually. In post-trial motions, SDCC petitioned Judge Battaglia to consider the case "exceptional" so that SDCC can recover attorney's fees from SLCC. The arguement for SDCC appears to mostly be that they spent a shit-ton of money on attorneys for the case.

U.S. District Judge Anthony Battaglia heard a host of posttrial motions Thursday, including San Diego Comic-Con’s request for over $4.5 million in attorney fees which have already been paid in full. San Diego Comic-Con attorney Callie Bjurstrom with Pillsbury Law told Battaglia Thursday he should find the case is “exceptional” so that attorney fees and costs can be awarded.

“This was a very expensive case; the reason this case was so expensive was because of defendants and their counsel and the way they litigated this case,” Bjurstrom said.

It will be interesting to see how Judge Battaglia rules on the assertion that SLCC's defense of itself warrants its paying SDCC's attorney's fees. What exactly was SLCC supposed to do, not try to defend itself in the best way possible? One also wonders if SDCC would be petitioning for attorney's fees had the jury found that SLCC's infringement was not willful, resulting in the paltry $20k award. Perhaps, perhaps not. What this sure looks like is the SDCC realizing that this "win" came at the cost of a hilariously large amount of money and it is attempting to mitigate that loss.

SDCC also petitioned the court to bar SLCC from using its trademarks. That sort of thing would be par for the course except for two things. First, again, this trademark is ridiculous. It's purely descriptive. Second, hammering home that fact, SDCC doesn't want SLCC to even be able to properly describe the type of event it is.

But San Diego Comic-Con’s request went a step further than simply asking Battaglia to enjoin the Salt Lake convention operators from infringing its trademarks: it asked the judge to bar the Salt Lake convention from using the words “comic convention” or phonetic equivalents to “Comic Con” or “comic convention.”

That request should lay plain how dumb this all is. If a comic convention cannot refer to itself as such because that is too close to the trademark "comic-con", then it should be plain as day that "comic-con" is purely descriptive and, therefore, invalid as a trademark. I wouldn't be surprised to see this petition to the court turn up at the USPTO in a bid to cancel SDCC's trademark entirely. That's certainly what I would be doing if I were heading up any of the hundreds of comic cons out there.

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Posted on Techdirt - 1 June 2018 @ 3:30pm

Judge OKs Class Action Status For Illinoisans Claiming Facebook Violated State Privacy Law

from the face-off dept

The last time we discussed Illinois' Biometric Information Pirvacy Act, a 2008 law that gives citizens in the state rights governing how companies collect and protect their biometric data, it was when a brother/sister pair attempted to use the law to pull cash from Take-Two Interactive over its face-scanning app for the NBA2K series. In that case, the court ruled that the two could not claim to have suffered any actual harm as a result of using their avatars, with their real faces attached, in the game's online play. One of the chief aspects of the BIPA law is that users of a service must not find their biometric data being used in a way that they had not intended. In this case, online play with these avatars was indeed the stated purpose of uploading their faces and engaging in online play to begin with.

But now the law has found itself in the news again, with a federal court ruling that millions of Facebook users can proceed under a class action with claims that Facebook's face-tagging database violates BIPA. Perhaps importantly, Facebook's recent and very public privacy issues may make a difference compared with the Take-Two case.

A federal judge ruled Monday that millions of the social network’s users can proceed as a group with claims that its photo-scanning technology violated an Illinois law by gathering and storing biometric data without their consent. Damages could be steep — a fact that wasn’t lost on the judge, who was unsympathetic to Facebook’s arguments for limiting its legal exposure.

Facebook has for years encouraged users to tag people in photographs they upload in their personal posts and the social network stores the collected information. The company has used a program it calls DeepFace to match other photos of a person. Alphabet’s cloud-based Google Photos service uses similar technology and Google faces a lawsuit in Chicago like the one against Facebook in San Francisco federal court.

Both companies have argued that none of this violates BIPA, even when this face-data database is generated without users' permission. That seems to contradict BIPA, where fines between $1,000 and $5,000 can be assessed with every use of a person's image without their permission. Again, recent news may come into play in this case, as noted by the lawyer for the Facebook users in this case.

“As more people become aware of the scope of Facebook’s data collection and as consequences begin to attach to that data collection, whether economic or regulatory, Facebook will have to take a long look at its privacy practices and make changes consistent with user expectations and regulatory requirements,” he said.

Now, Facebook has argued in court against this moving forward as a class by pointing out that different users could make different claims of harm, impacting both the fines and outcomes of their claims. While there is some merit to that, the court looked at those arguments almost purely as a way for Facebook to try to get away from the enormous damages that could potentially be levied under a class action suit, and rejected them.

As in the Take-Two case, Facebook is doing everything it can to set the bar for any judgement on the reality of actual harm suffered by these users, of which the company claims there is none.

The Illinois residents who sued argued the 2008 law gives them a “property interest” in the algorithms that constitute their digital identities. The judge has agreed that gives them grounds to accuse Facebook of real harm. Donato has ruled that the Illinois law is clear: Facebook has collected a “wealth of data on its users, including self-reported residency and IP addresses.” Facebook has acknowledged that it can identify which users who live in Illinois have face templates, he wrote.

We've had our problems with class actions suits in the past, but it shouldn't be pushed aside that this case has the potential for huge damages assessed on Facebook. It's also another reminder that federal privacy laws are in sore need of modernization, if for no other reason than to harmonize how companies can treat users throughout the United States.

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Posted on Techdirt - 1 June 2018 @ 10:41am

S Is For Streisand: Sesame Street Decides To Offer Free Promotion To R-Rated Muppet Satire By Filing Trademark Claim

from the no-infringement,-all-trademark dept

If you're of a certain age, then you will remember fondly Sesame Street, the educational programming once found on public broadcasting and now relegated to those with HBO subscriptions. The series dedicated its time to teaching children their letters and numbers, how to navigate childhood, and, above all, how to be kind to one another.

The Happytime Murders, an R-rated film from the warped mind of Melissa McCarthy, which also has puppets at its center, is not Sesame Street. It features drug use, vulgar language, violence, sex, and the kind of anti-PC humor more akin to South Park than anything appearing on Sesame Street. To that end, it has used a tagline in its marketing material that reads "No Sesame. All Street." It specifically sets itself apart from the famed children's show, which is what made it somewhat odd that Sesame Workshop attempted to get a restraining order against The Happytime Murders over trademark concerns.

According to Sesame's application for a temporary restraining order, "Defendants’ widely-distributed marketing campaign features a just-released trailer with explicit, profane, drug-using, misogynistic, violent, copulating, and even ejaculating puppets, along with the tagline 'NO SESAME. ALL STREET.' Defendants do not own, control or have any right to use the SESAME STREET mark. Instead, they are distributing a trailer that deliberately confuses consumers into mistakenly believing that Sesame is associated with, has allowed, or has even endorsed or produced the movie and tarnishes Sesame’s brand."

Readers of this site will recognize how absurd this all is from the get go. Nothing in the marketing material or tagline suggests that Sesame Street is in any way connected to The Happytime Murders. In fact, the exact opposite impression was the entire goal here, and it is a goal certainly achieved. The whole point of the tagline is that this new movie is not connected with Sesame Street. This sort of use, particularly given that the use didn't actually use the full trademark consecutively, is widely accepted as either fair use or simply non-infringing. Meanwhile, of course, the actions of the Sesame Street people essentially has served as free and wonderful advertising for The Happytime Murders. What Sesame's legal team was thinking with all of this is beyond me.

But the law was not beyond the judge that heard each side's oral arguments. The TRO request was denied, with the judge stating flatly that there was no public confusion Sesame Street could point to in any of this. Not willing to lose out on the continued publicity, The Happytime Murders trotted out its puppet lawyer, Fred esq., to comment on the ruling.

"We fluffing love Sesame Street and we're obviously very pleased that the ruling reinforced what STX's intention was from the beginning — to honor the heritage of The Jim Henson Company's previous award-winning creations while drawing a clear distinction between any Muppets or Sesame Street characters and the new world Brian Henson and team created. We believe we accomplished this with the very straightforward NO SESAME, ALL STREET tagline. We look forward to continued happytimes as we prepare to release Happytime Murders this summer."

Meanwhile, it would be nice if the lawyers behind a notable childhood staple of a television show would cease fluffing with the work of other artists.

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Posted on Techdirt - 31 May 2018 @ 3:36pm

PUBG Corp. Sues Epic Games In S. Korea Over Gameplay Similarities That Probably Aren't Copyrightable

from the idea-vs.-expression dept

The last time we checked in with PUBG Corp., the company behind the popular PlayerUnknown's Battlegrounds video game, creator Brendan Greene was remarking on how video games are afforded no intellectual property rights at all, despite that absolutely not being the case. This confused take on a key aspect of his industry came on the heels of the developer of PUBG suggesting that it was considering suing Epic Games, the makers of Fortnite, for copyright infringement because Epic had updated its own game with a "battle royale" mode. Like PUBG, this mode pits 100 people against each other in a last-man-standing battle format. It was at that time that we tried to remind PUBG Corp. that the idea/expression dichotomy in copyright law is a thing. While specific expression gets copyright, general concepts, such as generic game-modes and genres, do not. A battle royale game format is no more deserving of copyright than the first-person shooter genre.

It seems that the lesson didn't take, however, as it was recently revealed that PUBG went ahead and filed a lawsuit in South Korea way back in January.

After suggesting it might take action, the developer of PUBG has filed a lawsuit against the creator of Fortnite on the ground of copyright infringement. PUBG Corp., which is based in Korea, filed its lawsuit against US-based Epic Games with the aim of getting the courts to decide if Fortnite represents some kind of copy of PUBG. A PUBG Corp. representative told Korea Times that its lawsuit against Epic was actually filed back in January in the Seoul Central District Court. Epic Games Korea, a division of Epic Games, is the defendant.

How this lawsuit flew under the radar for five months is an incredibly irritating mystery to this writer, but it should be noted that no lawsuit has been likewise filed in the United States. While the press doesn't seem to be able to get any specific claims PUBG is making against Epic out of any filings in the South Korea courts, it's likely that the suit was filed there because the claims will rest largely on Fortnite's mimicry of the battle royale format. Again, in the US, it is clear that this is not copyright infringement.

There are a couple of other items adding to the strangeness of the lawsuit. For starters, PUBG and Epic have an existing business relationship. PUBG was developed in Epic's Unreal Engine, after all. On top of that, Greene's first comments about Fortnite's battle royale mode were downright supportive before he began complaining about so-called "copying."

In March, PUBG creator Brendan Greene--the Playerunknown from the game's title--said Fortnite is good for the battle royale genre overall. "It's great that the battle royale space is expanding and Fortnite is getting battle royale game mode in the hands of a lot more people," he said, as reported by The Verge.

So, what explains the change of heart and the sudden move to file a lawsuit? It seems that Greene and the PUBG people don't like that Fortnite is simply doing better than them in the market.

This time last year, PUBG was seen as the No. 1 battle royale game, but a lot of attention and awareness currently is around Fortnite. Epic's game has exploded in popularity, and is reportedly a money-making juggernaut. A recent report said the free game brought in almost $300 million in revenue during April alone from its various microtransactions.

Suing the competition because they're successful isn't a great look for any company. Add to that the lawsuit sure seems as though it's over content and mimicry that is generally not afforded copyright protection and this all seems much to do about sour grapes.

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Posted on Techdirt - 31 May 2018 @ 6:21am

Congresswoman Says School Shootings Are Caused By Porn, Mental Illness, Single Parents... But Mostly Porn

from the pron dept

In the wake of any mass or school shooting that occurs in America, which pretty much means most of the time that exists, everyone immediately runs to their preferred corners to blame their preferred target for the latest tragedy. I've pointed this out as often as I can, but the truth is that both gun violence and the incidence of mass shootings in America is a terribly complicated subject that deserves all the nuance and sober-thinking it could possibly be afforded. But, since this is America we're talking about, we tend to do the exact opposite and instead pick a single target and heap as much blame as we can on it. It's guns that's the problems. Or it's violent movies. Or video games. Those are the typical targets, and they have been for some time. Meanwhile, the shootings continue, nothing is done, and on it goes.

House Rep. Diane Black of Tennessee knows why this is. We've had the wrong target all along. The real cause of school shootings is porn.

During a meeting last week with local pastors, Black raised the issue of gun violence in schools and why it keeps happening.

“Pornography,” she said.

“It’s available on the shelf when you walk in the grocery store. Yeah, you have to reach up to get it, but there’s pornography there,” she continued. “All of this is available without parental guidance. I think that is a big part of the root cause.”

Where, oh where, is this magical world where porn is acquired at the local grocery store without any parental supervision? I'm asking because teenager-me would have really liked this world and, if a time machine is ever invented, I would like to travel back in time and tell him/me how to get there. The link above also asks a relevant question: what the hell kind of porn is Rep. Black watching? Because I've, ahem, heard third-party accounts of what pornography generally consists of and looks like, and violence generally is left at the fringes, while violence to do with mass shootings is something I've never even heard of. Especially in the kind of porn you can reasonably get in the local grocery store.

Sadly, Rep. Black failed to clarify what the hell she was talking about, so we're left to imagine where she is getting her school-shooting smut from. On top of evil, evil pornography, she also suggested that mental illness and broken families were the problem.

Beyond naughty movies, Black said school shootings are on the rise because of the “deterioration of the family,” mental illness and violent movies.

These feel like they're on more solid ground than blaming porn, but only in relative comparison to the former. It's still the same old problem of picking out a few scapegoats and pretending they explain America's mass shooting problem, rather than having an honest and nuanced view of all the contributing factors. Were we Americans to actually employ this logical mindset, we could then proceed with a real discussion of what we want to do about all the factors that play into school shootings.

But, naaaah. Blaming porn is way easier.

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Posted on Techdirt - 30 May 2018 @ 7:57pm

Swedish Copyright Trolls Have Brought Exactly Zero Of Their 'Cases' To Trial, Exposing Their Shitty Business Model

from the legal-blackmail dept

You may recall that the Swedish Pirate Party recently declared war on copyright trolls operating within Sweden. The party's newfound efforts, which had remained far too dormant for far too long, come on the heels of an explosion in so-called "settlement letters" being sent out to Swedish citizens. Those letters, as is typical elsewhere, are armed merely with an IP address and a claim of infringing behavior. Despite this, Danish law firm Njord Law has been able to collect millions of dollars in "settlments" after sending out notices to tens of thousands of account holders of IP addresses alleged to have engaged in copyright infringement. Njord Law was able to get this data from Swedish ISPs by spending a great deal of time in court, claiming that it needed this customer information in order to get justice for the copyright holders it represents.

What makes that stated goal somewhat odd is that Njord Law appears to spend almost no time in the courtroom for literally anything else beyond getting this customer data. Despite the firm's own admission that nearly half of the recipients of these letters don't even bother to respond, the firm has brought exactly zero of these cases to the courtroom.

After trawling records held by the Patent and Market Court and all those held by the District Courts dating back five years, SVT did not find a single case of a troll taking a citizen to court and winning a case. Furthermore, no law firm contacted by the publication could show that such a thing had happened.

“In Sweden, we have not yet taken someone to court, but we are planning to file for the right in 2018,” Emelie Svensson, lawyer at Njord Law, told SVT.

Njord Law has made promises of courtroom appearances in the past as well, which have yet to materialize. And that really should tell you everything you need to know about the copyright troll business model. Whatever noises trolls might make about justice and the law, they have no interest in actually engaging the accused in the courtroom. Such litigation is expensive, for starters, compared with simply scaring people into handing over small settlement amounts essentially for free. Also, it would be in the courtroom that any challenge as to the quality of evidence being used to extract these settlements would occur.

The reality is that these trolls want to exist in something of a copyright DMZ, tossing out legal threats while never actually ending up in a courtroom battle. If that sounds like a species of blackmail to you, you aren't alone.

“There is a risk of what is known in English as ‘legal blackmailing’,” says Mårten Schultz, professor of civil law at Stockholm University.

“With [the copyright holders’] legal and economic muscles, small citizens are scared into paying claims that they do not legally have to pay.”

Why the political representatives of the citizens of Sweden would choose not to outlaw these sorts of tactics is an open question. Surely a political party called The Pirate Party cannot be the only group opposed to the legal blackmailing of the Swedish public.

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Posted on Techdirt - 24 May 2018 @ 7:51pm

Woof: The Prosecco People Successfully Oppose A Pet-Treat Company's 'Pawsecco' Trademark Application

from the punderful dept

In the realm of the alcohol industry, the French champagne makers have distinguished themselves for their jealous protection of the name of their sparkling white wine. This protectionism is taken to the extreme, with association groups representing champagne makers essentially forbidding anyone else from even using the term. France's neighbor, Italy, has its own sparkling white wine called prosecco. And it seems that the makers of prosecco are trying to take a page from their champagne-making cousins in "protecting" their trademarks to a ridiculous degree.

A maker of drinks for pets recently tried to trademark the name of a product it makes called "Pawsecco." The pet treat is not alcoholic, is sold only to pet owners, and is, frankly, puntastic. Despite all of this being supremely obvious, Woof and Brew faced a trademark opposition from the prosecco people.

‘Pawsecco’ was opposed by Consorzio di Tutela della Denominazione di Origine Controllata Prosecco, the Italian organisation responsible for the protection and promotion of Prosecco’s PDO. The PDO relates to wines deriving from a particular vine species, within specific grape-growing areas in Italy. For a wine to qualify as Prosecco there are also unique bottling and labelling requirements.

Consorzio said the applied-for mark would be confused with its earlier registered EU trademark (EUTM), which features the words ‘Prosecco PDO’ in a circle around the silhouette of glasses (EUTM number 11,619,764).

Okay, a couple of things here. First, the claims of potential confusion are clearly ridiculous. The products in question are not remotely similar, save for a tongue-in-cheek pun-based name Woof and Brew devised for its product. Even that pun is of the kind that clearly identifies the product differences and comes as part of a long-running tradition of pet stores punning known brands in selling their pet equivalents. Any clear reading of this opposition leaves the reader thinking that it is absolutely absurd.

Second, is this really the best look for a trade group representing prosecco makers? After all, embedded in the opposition is that its products, billed as a classy, high-quality sparkling wine, could be confused with something pet owners feed to their dogs. Is that really the claim the consortium wants to make?

Amazingly, despite all of this, Team Prosecco actually won its opposition. After admitting in its ruling that there is no chance for public confusion over any of this, the UK IPO then decided that the very allusion to prosecco warranted a refusal of the "Pawsecco" mark.

It agreed with Consorzio’s assertion that the ‘Pawsecco’ mark was “coined in order to allude to a type of wine”, though the IPO noted that “it is highly unlikely that pet owners would assume that the product was actually wine”.

Overall, “the nature of the whole marketing strategy appears predicated upon an assumption that the potential consumer will see the evocation,” the IPO said, adding it is an “inevitable conclusion” that Woof and Brew saw “some form of commercial benefit in choosing (and using) the name that it did”. Woof and Brew is therefore “taking advantage of the strong reputation possessed by the PDO, riding on its coat-tails”, and to “tolerate such use would not promote fair competition”, the IPO concluded.

And so Woof and Brew doesn't get its trademark and has to pay the consortium nearly $3,000 for costs incurred in opposing the trademark. All for a trademark conflict that the IPO itself admits contains no risk for confusing the public consumer.

And they say trademark laws are broken.

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Posted on Techdirt - 24 May 2018 @ 10:44am

Comcast Exposes Customer WiFi SSIDs and Passwords For Customers Paying To Rent A Comcast Router

from the pay-to-be-hacked dept

Look, when it comes to Comcast, it's obviously quite easy to slap the company around for any number of its anti-consumer practices. Just sampling from the most recent news, Comcast was sued over its opt-out mobile hotspot from your home router plan, the company has decided to combat cord-cutting by hiking prices and fees on equipment for customers who cord-cut cable television, and it also has put in place a similar plan to charge all kinds of bullshit fees on equipment installations for customers who aren't bundling in other services with its ISP offering. You should be noticing a trend in there that has to do with how Comcast handles so-called "equipment rental" fees for its broadband customers and how it handles customers that choose to bring their own device to their home networks instead. Comcast has always hated customers that use their own WiFi routers, as the fees for renting a wireless access point represent a huge part of Comcast's revenue.

Which is why you would think that the company would at least not expose the home networks of customers who use that equipment. Sadly, it seems that Comcast's website made the network SSIDs and passwords available in plain text of customers who were renting router equipment, while those that used their own routers were completely safe.

A security hole in a Comcast service-activation website allowed anyone to obtain a customer's Wi-Fi network name and password by entering the customer's account number and a partial street address, ZDNet reported yesterday.

The problem would have let attackers "rename Wi-Fi network names and passwords, temporarily locking users out" of their home networks, ZDNet wrote. Obviously, an attacker could also use a Wi-Fi network name and password to log into an unsuspecting Comcast customer's home network.

It should be noted that Comcast almost immediately addressed the security flaw in its website after ZDNet's report. Still, we're not in the business of giving high marks to a company that fixes a laughable security hole on its website. Comcast reps also claimed that "There's nothing more important than our customers' security." But, if that were true, Comcast's position would be to advocate its customers use their own routers rather than renting Comcast routers, as those who did so were completely protected from this security risk.

Just to be clear, we're talking about really sensitive information exposed by this website flaw. WiFi network names and passwords are one thing, but malicious actors were also presented with the routers' physical home addresses, despite the attacker not needing a customer's full home address in order to access that information. And all of this was presented in plain text.

Any company making these kinds of dangerous mistakes would be bad, but it's worth putting all of this in the context of Comcast both operating in a competition-deprived unregulated ISP market and that it is trying to get even bigger through major acquisitions to gobble up even more market-share. That kind of attempt at ISP monoculture makes any security flaw exponentially worse and Comcast has not demonstrated its ability to live up to the security task.

Meanwhile, why anyone would rent a Comcast WiFi router is completely beyond me.

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