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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.

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

Amazon Looking To Expand Prime Into Live-Streamed Major Sports

from the play-ball! dept

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

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

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

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

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

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

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

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

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

Who Gets To Trademark Iceland?

from the ice-ice-baby dept

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

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

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

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

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

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

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

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

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

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

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

Game Developer Updates Game To Remove Denuvo DRM As Fans Cheer

from the better-late-than-never dept

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

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

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

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

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

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

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

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

from the mic-drop dept

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

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

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

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

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

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

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

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

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

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

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

from the wave dept

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

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

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

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

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

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

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

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

from the wires-crossed dept

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

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

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

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

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

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

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

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

from the huh dept

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

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

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

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

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

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

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

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

from the carry-the-one dept

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

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

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

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

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

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

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

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

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

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

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

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

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

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


photo credit: Eduardo Gabriel CC BY ND


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

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

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

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

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

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

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

from the control-alt-delete dept

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

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

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

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

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

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

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

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

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

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

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

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

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

from the like-clockwork dept

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

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


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

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

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

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

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

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

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

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

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

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

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

The Spanish Government The Latest To Try To Ban Memes

from the u-mad-bro? dept

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

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

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

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

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


And...


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

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

Free the meme, Spain. Free the meme.

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

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

from the bully-the-bully dept

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

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

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

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

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

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

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

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

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

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

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

from the exit-stage-trademark dept

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

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

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

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

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


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

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

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Posted on Techdirt - 10 November 2016 @ 1:15pm

EU Court Of Justice Says The Shape Of Rubik's Cube Should Not Be Trademarked

from the form-over-function dept

You all should be familiar with a Rubik's Cube, the three-dimensional puzzle toy that for some reason your grandmother kept on her coffee table to frustrate you while she watched Matlock. This invention of the 1970s still enjoys widespread popularity, with hundreds of millions of them being sold every year. The toy has been patented for some time, but ten years ago, a British company that manages the intellectual property rights for the toy also applied for trademark protection on the cube's design in the EU. The reason for this should be obvious: patent protections last for limited amounts of time, while trademark rights exist essentially in perpetuity, so long as it's actively used in the marketplace. It's an end-around to patent law designed to lock up a monopoly.

But, in the case of the Rubik's Cube, it didn't work, as the European Union Court of Justice has correctly determined that the trademark applied for by Seven Towers was for a functional and technical solution, not one of branding. German competitor Simba Toys had challenged the trademark, and it won.

ECJ judges agreed with Simba Toys' arguments. Their decision is final and cannot be appealed.

"In examining whether registration ought to be refused on the ground that shape involved a technical solution, EUIPO and the General Court should also have taken into account non-visible functional elements represented by that shape, such as its rotating capability," they said.

EUIPO will now have to issue a new decision based on the ECJ judgment.

Representatives from Rubik's Brand Ltd. were quick to respond, breathlessly wringing their hands over how this decision will obviously destroy the brands and innovation within the toy market.

Rubik's Brand Ltd's president David Kremer said he was baffled that the court ruled that functionality or a technical solution is implicit in the trademark.

"This judgment sets a damaging precedent for companies wishing to innovate and create strong brands and distinctive marks within the EU, and is not what European lawmakers intended when they legislated for 3D trademarks," he said.

But we can set the Chicken Little shit to the side, here. The damaging precedent would have been if the court instead allowed companies to treat trademark so disdainfully as a technical end-around to patent law. There is a reason why patents have set time periods for protection and getting around them by trying to apply trademark law to that which is clearly in the realm of patents would do the very thing Kremer claims to fear: prevent innovation. After all, given how overprotective companies have become when it comes to their trademarks, it's easy to see how Rubik's would respond to any other toy maker attempting to make a toy involving anything resembling a rotating cube. This was about monopolizing a market, not innovation.

It's good to see a high court slap down attempts like this, regardless.

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Posted on Techdirt - 9 November 2016 @ 8:29am

Mark Cuban Pulls Credentials Of Two Human Reporters For Mavs Games To Stave Off Robot Journalist Apocalypse

from the wut? dept

I have to admit at the start of this post that I rather like Mark Cuban. Not his reality show shtick, but rather what I've seen from him in interviews and his positions. On matters of innovation and intellectual property, I've found him rather refreshing, even as we at this site have poked him on the topic of net neutrality. That admiration makes it all the more jarring when Cuban goes somewhat off the rails on unrelated matters.

For instance, Cuban, who owns the NBA's Mavericks organization, recently pulled the press credentials of two sports journalists. Due to the vacuum of explanation for the move, those that covered it were left to speculation to explain why Cuban would do something like this. That speculation amounted mostly to Cuban either punishing ESPN, the employer of both journalists, for moving Mavs beat journalists into a national coverage role and thereby decreasing the exposure of the team, or pulling an ego trip on the journalists over the type of coverage the team was receiving. The latter was a rather unfair and an all too easy potshot at Cuban, while the former didn't make a great deal of sense as one of the journalists hadn't been on the Mavs beat for at least a decade.

But when Cuban finally commented publicly on his motives, they were revealed to make even less sense, which I wouldn't have thought possible.

Mark Cuban and the Dallas Mavericks pulled the credentials of experienced ESPN reporters Marc Stein and Tim MacMahon this weekend under mysterious circumstances. There was no obvious motive for the Mavericks to do so, and Cuban hasn’t said much to clear it up—but he broke his silence this evening. Cuban told the Associated Press he banned MacMahon and Stein to stave off the advances of the encroaching robot sportswriter horde.

Lest you think this is an unfair representation of Cuban's position, here are his comments directly from an email he wrote to the Associated Press.

“Maybe I will be wrong but I see a direct path from the trends in coverage of games we are seeing over the last couple years to the automation of reporting on games and the curation of related content,” Cuban wrote in an email to the AP. “This isn’t a knock on wire services or their reporters. They are valued and valuable in sports coverage.”

“While it may seem counterintuitive to ban someone from covering us as a way of stopping automation, it really was my only option,” Cuban said. “As is evident by the AP partnership with Automated Insights, it’s not if but when.”

To be clear, the AP does have some automated coverage being done for some sporting events, chiefly minor league baseball games for which paid press attendance doesn't really make sense. But there is not automated recaps being done of NBA games at this time and it is difficult to imagine a rabid sports fan base being satisfied with auto-recaps of the professional teams in major leagues that they so love. Whatever Cuban is really worried about, I'm struggling to understand how it can really be about robotic coverage of Mavs games.

And even if his motivations really are that simple, in what world does it make sense to remove the credentials for two human reporters to stave off SkyNET's NBA coverage?

It’s not a legitimate concern right now, and even if Cuban has decided to take a stand against automated recappers, banning two human reporters is an obtuse solution. ESPN said that they will rely on wire services for recaps of games that they don’t send reporters to, so if anything, all Cuban is really doing is ensure that Mavericks game recaps are written by a wire service, such as the AP, and not ESPN. If his bone to pick is truly with robot sportswriters, ESPN is not the institution to take it out on.

It's a sort of off-brand version of the Streisand Effect, in which you take action to stop something and, by doing so, directly encourage that something to occur. For someone generally smart, this move doesn't resonate. Regardless, I for one welcome our new robotic sports journalist overlords.

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Posted on Techdirt - 8 November 2016 @ 11:43am

Dear Eric Trump: Do Not Be Shamed Into Deleting Your Free Speech By A Dumb New York State Law

from the selfie-ish dept

We don't do partisan politics here at Techdirt, but we sure as hell do talk about free speech rights. And, as we've said many times, there is probably no type of speech more deserving of protection than political speech. It's what makes all the state laws against so-called "ballot selfies" so frustrating: they go to such great lengths battling the hypothetical evils arising from people taking and sharing photos of their completed ballots that they wind up stifling very real speech. And even as some state courts manage to understand that these laws are a clear violation of the First Amendment, states like New York have courts that don't.

Which brings us to Eric Trump, son of The Donald, who tweeted out the following this morning.


Should you be unable to see it, Eric Trump tweeted out an image of his completed ballot, in which he voted for his father, because duh. Almost immediately several news organizations, such as the New York Daily News and The Verge, pounced on the tweet with headlines proclaiming that Eric Trump "broke the law" with the tweet. And that is really, really stupid from news organizations that should really, really know better. Institutions that rely on the First Amendment for their very existence ought not to be cheering on laws that violate it. And, really, for those of us that hate these ballot selfie bans, there is no better scenario than having a high-profile member of the public violate them, so that we can get the laws changed.

But, of course, Eric Trump deleted the tweet almost immediately. He shouldn't have. He should have insisted on standing by his free speech rights, rights that have been fought for by many so that political speech can remain free. Whatever you might think of this election, whatever you might think of the Trump family, advocates for free and open speech are required to stand by those rights. There is no joy in seeing the press shame Eric Trump into deleting his ballot selfie tweet. He should instead put it back up, stand by it, and have pride in his right to post it. And if that means defending that right against a constitution-violating state law, then so be it. It'd certainly be the patriotic thing to do.

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Posted on Techdirt - 7 November 2016 @ 11:23pm

Jury Balks At Trademark Claim Against Ex-Member Of Rock Group Boston

from the these-are-the-facts dept

When you cover enough stories about trademark disputes, you sometimes are amazed at just how petty these types of things can get. I imagine for those who cover the kinds of arguments and disputes that happen within musical acts, it can be a similar experience. But when you intersect petty band members and a petty trademark dispute, that's when your faith in humanity is truly put to the test.

Serving as an example of this is your one uncle's favorite band, Boston. It seems that a one-time member of the band, guitarist Barry Goudreau, has since continued his musical career with other acts. Those acts have occasionally promoted themselves as including a former member of Boston. For this, the band's frontman, Tom Scholz, filed a trademark suit against Goudreau.

Goudreau has referred to himself as “Barry Goudreau from Boston,” “Barry Goudreau of the Multi-Platinum Group Boston,” and, in an advertisement for an appearance last summer with James Montgomery, “Barry Goudreau Lead Guitarist Rock Legend from the Band Boston.”

Scholz's suit goes to great lengths to minimize the role Goudreau had in the band, which amounted to being the lead guitarist on their first two albums. Which, whatever, as far as trademark law goes. It then goes on to note that there was an agreement in which Goudreau would have no right to the "Boston" name. And perhaps, depending on how formal the nature of this agreement was, there might be a discussion to be had over contract violations. Except that this is a trademark dispute, so one wonders just how formal that agreement was.

Regardless, the suit went before a jury which, thankfully, found its claims to be of little merit.

Barry Goudreau, onetime guitarist for Boston, did not infringe on the band’s trademark by billing himself as a former member of Boston after leaving the group. That’s the verdict in a lawsuit brought against Goudreau by Tom Scholz, leader and principal songwriter of Boston in US District Court.

Likely because even for those not familiar with the minutiae of trademark law, it strains the mind to accept that issuing a factual statement should somehow violate intellectual property rights. Goudreau was a member of the band. Promoting him with that fact on material for another act has a roughly zero chance of confusing anyone. Still, Scholz's follow up to the verdict highlights the pervasive misunderstanding that caused him to bring the suit to begin with.

“Despite the jury’s verdict on our trademark violation claim, today’s outcome was satisfactory because it reinforces a clear message for musicians and artists across the nation,” Scholz said in a statement. “Trademark law exists not just to protect the rights of those who create, but to preserve the legacy and value of their art.”

Note the complete absence of any reference to the actual purpose of trademark law: protecting the public from product confusion. If Scholz had instead viewed his former bandmate's actions through that lens, instead of one in which the law serves only creators, as though it were copyright, he would have known better than to bring the suit to begin with.

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Posted on Techdirt - 4 November 2016 @ 1:16pm

Judge Refuses To Block NY No-Selfie Ballot Law Because It Would 'Create Havoc To Not Enforce It'

from the wut? dept

Our long national nightmare that has been this election cycle is nearly over. Election day is approaching and early voting has begun, which means you've probably already seen your social media connections happily and proudly posting about their votes. This is a good thing for democracy, in my opinion, as celebrations of participation can only encourage others to participate as well. Yet not everyone is on board with this social media pride. We had already discussed New Hampshire's law against so-called ballot selfies, in which people post their completed voting ballots to social media. That law was struck down as unconstitutional, because of its restriction on the most important form of speech, political speech.

But, as you may know, New Hampshire isn't the only state to pass such a law -- in fact lots of states have them, including New York. As in other states, New York's is being challenged in federal court at present. Three voters sued in October to get enforcement of the law blocked. The judge in the case, however, has refused to issue such an order, claiming that to do so would sow confusion on election day.

U.S. District Judge Kevin Castel in Manhattan said it would "wreak havoc on election-day logistics" to issue a preliminary injunction against the law, which prohibits the display of "ballot selfies." "The public's interest in orderly elections outweighs the plaintiffs' interest in taking and posting ballot selfies," though they remained free to express their political message through "other powerful means," Castel wrote.

It's an odd bit of reasoning. What Castel is saying is that ordering non-enforcement of this law -- doing nothing, in other words -- would create more havoc than actually tasking law enforcement with enforcing it. How is that remotely possible? Doing nothing cannot possibly create more problems than doing something. Doing nothing is doing nothing, after all. What havoc could come from local law enforcement sitting idly by as people proudly share that they voted on social media?

When one takes into account that this is a matter of free political speech, so too does Castel's suggestion that the public benefit outweigh's those of the plaintiff's seem odd. The public is the one that would benefit from not enforcing a law that has had a similar version of it already declared unconstitutional in another state. Other states have had the courts all over the map on this question, with California also seeing a refusal to stop enforcement of its ballot selfie law, while states like Indiana and New Hampshire have had those laws struck down.

It seems this may be headed for the Supreme Court, where we'll hopefully have a full roster of justices ready to make a ruling on selfies at the ballot box.

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Posted on Techdirt - 3 November 2016 @ 4:33pm

Oh, Look, Two Breweries Work Out A Trademark Issue Without Lawyers, Threats, Or Asshole-ery

from the good-guys dept

Trademark disputes are often petty, heated, and vitriolic. We know this. Interestingly, it often seems as though the temperature level for trademark disputes is inversely proportional to how valid they are: the pettiest disputes are often the most heated. And we cover enough of those sorts of things that it can often seem like no companies out there approach a trademark issue in any other way.

But that isn't the case and it's probably useful to highlight when companies get this right. Enter Hopworks Urban Brewery in Portland, makers of a beer it has named "Abominable." Another brewery, Fremont Brewing Company, has produced a very popular seasonal brew for some time that it has entitled "Abominable Winter Ale." In other words, there is an actual potential trademark issue here, with a naming convention and vernacular unique enough to quite possibly result in some confusion. So Hopworks set its lawyers to work, right?

Wrong.

Don’t get your barley in a bunch; Fremont Brewing says it was a friendly conversation and not an acrimonious kerfuffle. In a Twitter statement, Fremont Brewing said:

“Our friends at @HopworksBeer trademarked the name before us and we worked out a friendly transition. Now, we have to brew a beer together:)”

Collaboration, not litigation!

In other words, Hopworks contacted Fremont to let them know of the issue, behaved like human beings, and everything has now been worked out. All without the cost of billable hours and court fees, too. It's almost like there can be a common sense approach to these types of trademark issues, one that doesn't require lawsuits.

The craft beer industry in particular should be both particularly conducive to this sort of friendly interaction and particularly in need of it. It's been noticed for some time that the industry's explosion has poised it for an explosion in trademark disputes. Unless, that is, the typically friendly breweries take their cues from Hopworks and Fremont on how to settle them.

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