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About Dark Helmet Techdirt Insider

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




Posted on Techdirt - 4 August 2021 @ 7:44pm

Everyone Being Dumb About IP: McDonald's No Longer Offering Dope Custom PS5 Controllers In Australia

from the all-about-control dept

If you search for stories about McDonald's on Techdirt, you will come away with the impression that the company, like many large corporate entities, puts heavy emphasis on its intellectual property rights. Sony, the company responsible for the PlayStation consoles, exudes a similar reputation, despite some recent moves to loosen its IP grip as of late. So, just to be clear, everyone involved in this story tends to trend toward the more restrictive end of the IP spectrum.

Which makes it super-duper stupid that McDonald's Australia had a plan to offer up customized PlayStation 5 controllers, but never bothered to formalize any part of this plan with Sony. And, if you're like me, that's a shame because the cosmetics on the controllers are pretty dang fun.

Shortly after the announcement, McDonald's Australia had to issue a follow up cancelling the whole thing. It turns out that nobody at the company bothered to get in touch with Sony before the announcement and, well, you know what happened next.

As of last week McDonalds Australia had been planning on giving away a bunch of custom PS5 controllers, each plastered with a burgers + fries motif in celebration of the company’s 50th birthday (in Australia). Weirdly, the international dining behemoth forgot to ask Sony about this first.

You’d think that would be the first thing a company with an actual legal team would have thought to do if you were going to be mentioning “PlayStation 5" and using a controller image as part of your own marketing, but nope! McDonalds just got straight to it, announcing plans to give the controllers away as part of a competition, along with sending some out to local streamers as well.

So, Sony stepped in and put an end to the entire promotion. While that is absolutely Sony's right, it's also incredibly stupid. What, really, is the end result of this promotion? Sure, McDonald's is attempting to sell more of its fast food. But it also would have served as essentially free advertising for Sony's PS5, wouldn't it? The giveaway was part of McDonald's upcoming "Stream Week", an event that also had to be canceled. And the communication to the public by McDonald's puts the blame squarely on Sony for that.

Sony PlayStation has not authorised the use of its controller in promotional materials related to the proposed Stream Week event and we apologise for any inconvenience caused. McDonald’s stream week has been postponed and Sony PlayStation controllers will not be included in the giveaway.

Which is how Sony managed to turn an opportunity for the free promotion of its consoles in Australia into a PR negative, where the company is now blamed for the delay of McDonalds' Stream Week. It didn't have to be this way. Sony could have instead reached out to McDonald's and quickly worked something out, given that both sides in all of this would have benefited.

But, no, instead the company is apparently reinvigorated with the IP maximalist attitude of control over everything. That this concerns the control over video game controllers is at least partial evidence that the universe is not without a sense of irony.

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Posted on Techdirt - 4 August 2021 @ 11:57am

UFC COO Publicly Pushing 'Notice And Stay Down' Reforms To DMCA, Despite That Being Horrible For Almost Everyone

from the fight! dept

In the United States, the DMCA has a "notice and takedown" process. Section 512(c) outlines all of this and provides details on what obligations service providers, such as websites and social media platforms, must meet in order to retain their safe harbor provisions. This summary from Wikipedia is a good primer:

The Online Copyright Infringement Liability Limitation Act, passed into law in 1998 as part of the Digital Millennium Copyright Act provides safe harbour protection to "online service providers" for "online storage" in section 512(c). Section 512(c) applies to online service providers that store copyright infringing material. In addition to the two general requirements that online service providers comply with standard technical measures and remove repeat infringers, section 512(c) also requires that the online service providers: 1) do not receive a financial benefit directly attributable to the infringing activity, 2) are not aware of the presence of infringing material or know any facts or circumstances that would make infringing material apparent, and 3) upon receiving notice from copyright owners or their agents, act expeditiously to remove the allegedly copyright infringing material.

I added the bolded section for emphasis. Why? Well, many in the copyright industries hate the notice and takedown system because it requires them to notify service providers of individual cases for infringement. That requires work, of course. Work that these service providers very much do not want to do. Instead, many propose a notice and stay down system. What that would do would be to allow the copyright holder to essentially notify a service provider of infringing material once, after which it would be up to the service provider to do the policing of that content on their own sites. This was recently exemplified by the UFC's COO, Lawrence Epstein.

The DMCA is a “very reactive type of protocol,” Epstein notes, since the law places the onus on the copyright holder to act. This presents a timing problem for a live sports broadcast. The highest value for that broadcast—especially one distributed through a PPV arrangement—is when the event happens. A notice and takedown can take several minutes, even a half hour. By the time an illegal stream is removed, it could be too late. The Poirier-McGregor match lasted only about five minutes before McGregor suffered a leg injury and Poirier was credited with a TKO victory.

“It’s not an appropriate remedy,” Epstein charges, adding that the “vast majority” of the piracy is taking place on “big platforms like Facebook, YouTube and Twitter.” Epstein also stresses that “we see the same people doing it. There are repeat offenders who aren’t deterred by the process.”

The UFC would like to see the DMCA amended to include a “stay down system” whereby the copyright holder need only notify the service provider of infringing material. It would then become the obligation of the provider to monitor repeat infringers and prevent them from engaging in illegal streaming and other piracy on the provider’s platform. “These big platforms have to take responsibility for what happens on their platforms,” Epstein asserts. “It can’t be reactive.”

For context only, the latest UFC PPV event raked in $125 million. And, to be clear, I can sympathize with Epstein on the concept of how this all works for live-streamed, pay-per-view broadcasts. It's not the same policing a movie on the internet as it is policing infringing live-streams.

But, and this is the key part, that is a business model issue, not an issue requiring the wholesale retrofit of the DMCA. Put another way, if the notice and takedown system is overall beneficial for most of the public interest, altering it is not an appropriate remedy simply because it isn't working for the UFC.

And there are very good reasons why a notice and takedown system is better for nearly everyone than a notice and stay down system. For starters, while Epstein invokes the "big players" like Facebook and the like, those big entities are the ones that at least would stand a chance of operating in a notice and stay down system. They have the money, tools, and people to throw at the problems such a system would create. But what about smaller companies and sites? Startups? How in the world are they going to police other people's content for them? They won't and the liability such a system would create will keep startups from every... you know... starting up.

Beyond that, it's not like the "stay down" part works well in practice even when tried. The uploading of content by one person that is infringing does not make the uploading of it by another infringing. Viacom found that out directly by suing Google over a bunch of YouTube videos... that Viacom staff uploaded on purpose. In an effort to stop piracy, Viacom attempted to stop promotion of its own material by its own staff. If the companies responsible for content can't properly police copyright infringement of that content, what hope do service providers have?

And, as one professor explains to Yahoo! Sports, there is all of that plus issues of fraud and censorship that suddenly are opened up by a stay down system.

Ryan Vacca, a copyright law professor at UNH Franklin Pierce School of Law who has represented clients in the sports and entertainment law industries, agrees that placing the burden on copyright owners to police copyrights creates persistent challenges for owners in a world where streaming has become so omnipresent. “Given the enormous amount of copying and performing that occurs online,” Vacca explains, “it’s understandable that content owners want to shift that burden to other actors in the online ecosystem.”

Yet Vacca also sees “countervailing concerns” that could arise ”if the law is changed to make it too easy to have materials taken down.” He cautions that some copyright owners make infringement claims “not to protect their copyright, but to censor legitimate uses of copyrighted materials, such as critical commentary or parody.” Vacca adds that placing the burden on platforms “has the potential to disadvantage startup competitors by imposing additional costs on them that are more difficult to absorb than for established companies such as Facebook, Twitter and YouTube . . . This could have a negative effect on innovation for online platforms.”

So, the open question in summary is: should we really be altering the DMCA that has allowed for so much innovation and flourishing within the online ecosystem just so the UFC can possibly make even more than the $125 million per event it's making now? That feels like a question with an obvious answer.

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Posted on Techdirt - 3 August 2021 @ 7:40pm

Biden Warns That The Next Kinetic War Will Be The Result Of A Cyberattack, Which Is Stupid

from the stop! dept

The cyberwar hype has been going on for nearly a decade now. And, while it is very much the case that cybersecurity to defend from international actors is very much a real need, it's also true that dangling the threat of cyberwarfare over the public's heads has been purposefully done to excuse governmental power grabs at the military and intelligence agency levels. It's also been true throughout this hype-fest that the US government has been practically begging for there to be a cyberwar in the first place... except that other nations mostly seem to play with this at the most minimal levels. And, in the past, the American government has indicated that real shooting wars may result from cyberwar activities.

Now, none of the above is meant to suggest that there can't be a situation in which a foreign state actor engages in "cyber" actions so egregious that traditional military action would be warranted. Rather, the point is that such scenarios are both so egregious in their nature, and that they certainly haven't occurred to date, that to make threats of shooting wars as a result seems like a massive overreaction.

Unless, of course, you're President Joe Biden, in which case you walk in front of the Office for the Director of National Intelligence and assert with certainty that the next kinetic war will absolutely start as a result of a "cyber breach."

“If we end up in a war, a real shooting war with a major power, it’s going to be as a consequence of a cyber breach,” the president said in a speech at the Office for the Director of National Intelligence, which oversees 18 US intelligence agencies.

Although he did not say who such a war might be fought against, Biden immediately name-checked Russia’s president Vladimir Putin, alleging that Russia was spreading misinformation ahead of the 2022 US midterm elections.

This is quite stupid for a variety of reasons. Let's start with the most obvious: when politicians talk about conflicts between "major powers", you can simply replace "major" with "nuclear" and it's the same message. And if we're talking about suffering a "cyber breach" conducted by a "nuclear power", then proactively escalating the engagement rules into the kinetic warfare realm puts the entire world in a suddenly more dangerous place.

And this doesn't even work from a level of deterrence either. First, nations like Russia and China have generally shown themselves to be largely un-deterrable in the cyberwarfare space. It's not even entirely clear that our intelligence services are fully buttoned up on any given breach when it comes to who the attackers are and what level of state action is involved. For that to result in a kinetic war is, again, very stupid.

The statement also gives full permission to America's rivals throughout the world to put out their own statements in kind. And does anyone seriously doubt that we are engaging in cyber breaches at some level against our rivals ourselves? So, given Biden's stance, would it be morally correct for Russia or China to suspect America of some kind of intrusion... and start shooting? That's really where we want to end up?

Somehow I doubt it. Instead, this appears to be good, old-fashioned American myopic thinking at work. We do entirely too much of this: try to put out deterrence or threats without understanding that the result will be nations throughout the world lobbing those same threats right back at us. And if all of that were to result in warfare, never mind nuclear warfare, that would be abhorrent.

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Posted on Techdirt - 2 August 2021 @ 7:29pm

Israel, Ice Cream, Trademarks: This Year's Dumbest Controversy Results In Trademark Skullduggery

from the you-scream dept

Welcome to this year's dumbest controversy thus far. A couple of weeks ago, famed ice cream maker Ben & Jerry's announced that it would no longer be selling its products in "occupied Palestinian territory." Indicating that doing so would not align with the company's values, the idea here was that settlements that infringed on territory that was deemed to belong to the Palestinians by international law would be off the company's radar. Not all of Israel, mind you. Just the occupied territories. And that is when everyone lost their god damned minds. Ron DeSantis is seeking to have Florida put B&J and its parent company, Unilever, on a list of companies that should be scrutinized for "boycotting Israel". Jewish leaders indicated that the kosher rating of the ice cream could be altered for the same reason. Except that isn't what B&J are doing. It isn't boycotting Israel at all. It's simply refusing to sell its product in small sections of land that Israel currently occupies.

And where this gets into Techdirt territory is that one law firm in Israel is going to so far as to try to screw with Ben & Jerry's trademark rights, arguing now that it can use the B&J trademarks in those territories because the company isn't selling products there any longer.

Ben & Jerry’s is on its way to losing ownership of its brand in the settlements. The law association Shurat HaDin has submitted a request to the Registrar of Companies to register a company called “Ben & Jerry’s Ice Cream of Judea and Samaria.” This would be in keeping with US law under which a company loses the right to trademark protection in areas in which it has stopped selling its product.

The law firm informed food giant Unilever that since it had given up selling Ben & Jerry’s ice creams in the “West Bank,” under US law, it had lost the right to protect the Ben & Jerry’s trademark in those areas. Shurat HaDin has already submitted an application to the Israeli Registrar of Companies to register the new brand “Ben and Jerry’s Ice Cream of Judea and Samaria,” which will receive legal protection to sell the exact same ice cream, with the same trade name, and actually compete with the original company.

It should be obvious that this is absolutely not what trademark law is for. What is happening here is some combination of extortion and punishment simply because a private company has taken a very small stance on an international issue. This is typical of the maximal response that tends to be trotted out when Israel encounters these types of scenarios. I've heard this described by foreign policy experts as a form of "diplomatic deterrence", where a minor issue generates a response that's dialed to eleven simply to deter any like-minded companies or actors from taking the same actions.

But that, again, is not what trademark law is designed to do. It's designed to keep the public from being confused as to what they're buying. And it's hard to imagine a more perfect scenario for creating public confusion than a fraction of territory being sold B&J branded ice cream that isn't legit while the rest of the country gets the legit stuff. And the idea that US law is being used to do all of this makes this all the more infuriating.

Shurat HaDin examined and found that under US law, in order to preserve the protection of a trademarked brand against use by other parties, there must be full intention to conduct business in a particular area. That is, in cases where a commercial brand is intended only to prevent another party from using the same label, without having any intention of operating in the same area, its request will not be approved. Therefore, once that person announces that he does not intend to operate in the same area, it means that he has no intention of using his trademark and his right to trademark will no longer stand.

It's not that simple, obviously. And hopefully the Trademark Office and any courts that might get involved will see this for the skullduggery that it absolutely is. Whatever stances you might want to take on political issues related to this, this simply isn't what trademark laws are for.

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Posted on Techdirt - 27 July 2021 @ 7:50pm

Splunk Can't Sue Deutsche Telekom In USA Over Magenta Trademark Bullying Occurring In Germany

from the ruling-by-reputation dept

If you were to simply input the word "magenta" into the search bar at the top of Techdirt, you will note that two company names seem to keep coming up in the articles: T-Mobile and its parent company Deutsche Telekom. This is because those two companies have been incredibly annoying at with their nonstop bullying of other companies, often in entirely unrelated industries, for daring to use the color magenta in their branding. While some will want to argue that very specific colors can definitely be trademarked, this misunderstands how T-Mobile and DT operate, which is to threaten plenty of companies that use a similar purple color and those that use magenta but in different marketplaces. Notably for the purposes of this post, much of this trademark bullying has occurred in Europe, though not all of it. The point is that DT is a trademark bully when it comes to the color magenta and everyone knows it.

Which is what makes it disappointing to see a company like Splunk lose its ability to sue DT in America to have its use of magenta declared non-infringing solely because it has thus far only been bullied in Germany.

Tech company Splunk Inc can't sustain its lawsuit against Deutsche Telekom over its trademark rights in a "color gradient" that includes DT's signature color magenta, a San Francisco federal court ruled Monday.

U.S. District Judge James Donato said Splunk didn't have a "reasonable apprehension" of litigation in the U.S. based on a cease-and-desist letter it received from DT about its conduct in Europe and DT's trademark action against it in Germany.

On the one hand, this is a jurisdictional technicality and comes after Deutsche Telekom representatives insisted to the court that there were "no plans" to sue Splunk for trademark infringement in the United States. From the court's perspective, this led it to the conclusion that there was no actual conflict within its jurisdiction.

But on the other hand, DT does have a reputation to consider and it appears that there is enough interpretation being done in this ruling that it certainly could have taken that reputation into better account. From the ruling:

“[T]rademark disputes are justiciable under the Declaratory Judgment Act when ‘the plaintiff has a real and reasonable apprehension that he will be subject to liability.’” FN Cellars, LLC v. Union Wine Co., No. 15-cv-02301-JD, 2015 WL 5138173, at *2 (N.D. Cal. Sept. 1, 2015) (quoting Chesebrough-Pond’s, Inc. v. Faberge, Inc., 666 F.2d 393, 396 (9th Cir. 1982)). For this inquiry, the Court focuses “upon the position and perceptions of the plaintiff” and the “acts of the defendant,” which are “examined in view of their likely impact on competition and the risks imposed upon the plaintiff.” Chesebrough-Pond's, 666 F.2d at 396 (cleaned up). The showing of apprehension “need not be substantial” when an allegedly infringing mark is in use. Societe de Conditionnement en Aluminium v. Hunter Eng’g Co., 655 F.2d 938, 944 (9th Cir. 1981).

There is no bright-line application of these factors to decide justiciability. “The question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.”

Here the court acknowledges that there is no bright line and that the "apprehension need not be substantial." Splunk has a reasonable apprehension that it will be the target of a trademark action by DT, given that it is a target of one in Germany for the exact circumstances it's seeking relief. Despite DT's reputation as a trademark bully and the action initiated overseas, however, the court takes a very narrow view of that action, as well as taking DT's word that it doesn't plan to sue Splunk.

On the record before the Court, Splunk has not demonstrated a reasonable apprehension of being sued in the United States by DT. The salient facts, which are not in dispute, are that DT: (1) sent a demand letter to Splunk under German and EU law for Splunk’s conduct in Europe; (2) filed a trademark action against Splunk in Germany over the EU conduct; (3) reserved its trademark rights under U.S. law; and (4) has not sued Splunk in the United States, and did not oppose Splunk’s trademark proceedings before the TTAB. These facts are a country mile from the circumstances typically deemed sufficient to establish DJA jurisdiction.

Again, it's not that the court is wrong. Still, it seems like there is a reasonable chance DT will prove the court wrong with a lawsuit sometime in the future, given its past and present actions. If that were to occur, it would render this court's decision somewhat silly.

As silly, frankly, as the fact that these kinds of disputes over the color magenta need occur in any jurisdiction.

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Posted on Techdirt - 19 July 2021 @ 8:18pm

Google Jumps Into The Game Revenue Split Wars With Stadia

from the splitsville dept

It's no secret that the launch of Google's video game streaming platform Stadia has not exactly been smooth. From access issues to performance problems, up to and including a low adoption rate and stunted catalogue of games, this appeared for all the world to be Google's video game equivalent of Google Plus. In other words, one of those projects Google launches half way and then abandons. Part of the issue with the catalogue was reports that Google wasn't going to be shelling out cash to bring in more games to the platform last year.

But perhaps that is going to change. And perhaps the rumors of Stadia's forthcoming death have been greatly exaggerated. Reports now indicate that Google is going to try to attract more publishers to the platform by engaging in the same revenue-split wars currently going on between Steam, Epic, and Microsoft.

As part of a Stadia keynote presentation today, Google announced several moves designed to attract more games and publishers to its streaming gaming service. Chief among these is a more generous revenue split for publishers on the platform. Starting in October, Google will only take a 15 percent cut of the first $3 million in revenue for each new game on Stadia.

Assuming the industry-standard 30 percent cut, that means publishers stand to make up to $450,000 more per game before Google's cut reverts back to the standard at the $3 million threshold (a Google representative told Ars that "Stadia currently provides competitive revenue share terms with partners that matches what they typically see from other industry platforms"). The more generous deal only applies to "newly signed games" on Stadia from October through the end of 2023, though, meaning publishers that got in on Stadia early will miss out on the increase for their legacy titles.

As noted, this program is specifically designed to attract new game titles to Stadia. It's also worth noting that the "industry-standard 30%" platform cut isn't necessarily the industry standard any longer, unless you only consider Steam as the standard. And that would be dumb. There is emerging competition in the gaming storefront space... finally.

But, for Stadia, this is less about trying to carve out more market share and more about carving out any market share. Stadia only has 195 games on its platform. And while that might sound like a healthy amount, it's really not. Not when you consider the thousands of games available on Steam and Epic, or even the hundreds of games you can buy for last-generation consoles. Yes, streaming is different and not all games will be good candidates for the streaming platform. But streaming services become attractive largely by volume of offering. Imagine Netflix never getting past 200 television shows and movies. It wouldn't work.

Stadia is also trying to lure more games onto the platform with other revenue-makers as well.

Google will also more directly be giving publishers a cut of the proceeds from the games Stadia offers as freebies through its $10/month Stadia Pro subscription. A full 70 percent of Stadia Pro revenue will now be shared with the publishers of "any new title that enters into Stadia Pro" starting this month. That revenue will be divided up among publishers based on the number of "session days" (i.e., daily active users per day) logged on each title among all Stadia Pro users.

Finally, Google says that it will be rolling out a new Affiliate Marketing Program to increase the value of the "Click to Play" links that Stadia developers and publishers can create. Starting sometime in early 2022, if a player signs up for Stadia Pro using one of those instant-play links, the developer or publisher behind the link will receive the first $10 monthly payment made on the subscription (after a one-month free trial).

All of which is to denote that it looks like Google isn't ready to give up on Stadia yet. But getting more games on Stadia is just the first step. Even if that's successful, Google then has to gain more customer adoption. That's going to take time and investment over the mid- to long-term.

And after the rocky start, we'll get to find out together whether more games will be enough to get the bad Stadia taste out of the public's mouth.

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Posted on Techdirt - 15 July 2021 @ 3:42pm

Social Tech Loses Appeal To Apple Over 'Memoji' Trademark Because Suing Apple Isn't Using The Mark In Commerce

from the trademark-tautology dept

For what it's worth, lawsuits against Apple over emojis are not entirely unheard of. You may recall that Apple was sued by a woman who claimed it was copyright infringement for Apple to have emojis that represent more diverse communities, for instance. But for a truly fun story about Apple being sued, and winning its defense, over emojis, well, you have to go to a case between Apple and a company called Social Tech.

Social Tech sued Apple in 2018, alleging Apple's Memoji personalized emoji feature infringed its trademark covering its app with the same name. U.S. District Judge Vince Chhabria ruled for Apple in 2019.

Indeed. And Social Tech appealed that ruling. So why did the court find for Apple in 2019? Well, because Social Tech couldn't demonstrate that it was actually using the mark in commerce. This is where we'll need to dig into some details.

In 2016 Social Tech filed an intent-to-use trademark application for "Memoji" for use in apps and software. The Trademark Office granted a Notice of Allowance, which essentially gives the go ahead to the applicant to put the mark in actual commerce, after which the UPSTO would approve the mark. Social Tech basically did nothing for 2 years after that, other than to ask for an extension on the Notice of Allowance. Meanwhile, another company called Lucky Bunny LLC filed its own trademark application for "Memoji" for the same class of goods. That application was suspended due to the Social Tech application status. In the summer of 2018, Apple acquired Lucky Bunny and its assets, including the suspended trademark application. In June, Apple announced the acquisition and released a public test version of its new mobile OS that included Lucky Bunny's Memoji software.

And this is where it gets weird. When I said above that Social Tech did nothing for two years before Apple's announcement, that's not entirely true. Social Tech did write a business plan, fund itself internally for $100k, and write up some promotional material. What it didn't do was write a single line of code... until Apple announced the acquisition. Then, and only then, did Social Tech's interest in actually using the Memoji mark in commerce go into overdrive.

The appeal was decided by the court in Apple's favor as a result of all of this, but the details laid out in the judgement are striking.

During the three weeks after Apple’s announcement, Social Tech’s co-founder and president, Samuel Bonet, exchanged a series of emails with a software developer to accelerate the timing of the application’s development. In the first of these emails on June 7, Bonet described the circumstances to be “life changing” and concluded the email with: “Time to get paid, gentlemen.” In a series of subsequent emails, Bonet regularly followed up with the developer on the application’s progress. On June 12, Bonet wrote: “the app needs to erase the background AND the body . . . Of course this may take a little work to get perfect, but as long as we can get close initially, we can start to test and put in commerce.” On the evening of June 13, Bonet wrote to the developer: “[i]n other news . . . the initial letter has been sent to Apple. The process has begun. Peace and wealth!”

Bonet continued to follow up on the application’s progress over the next several days, noting that “the editing feature [was] vital” to “satisfy the ‘editing’ requirement of the trademark.” On June 18, Bonet wrote that Social Tech would release the application for Android in the Google Play Store first, proclaiming: “We are lining up all of our information, in preparation for a nice lawsuit against Apple, Inc! We are looking REALLY good. Get your Lamborghini picked out!”

It goes on from there, but the general gist is that Social Tech was very specifically attempting to finally get its mark pushed through simply in order to file these trademark suits and "get paid." And that, sadly for Social Tech, does not satisfy the requirement for using the mark in commerce. And, since the entire enterprise of putting a broken app in commerce was done simply to get the trademark for "Memoji" and file the lawsuit, those don't actually count either.

As a result, the court found for Apple.

The panel held that mere adoption of a mark without bona fide use in commerce, in an attempt to reserve rights for the future, is insufficient to establish rights in the mark under the Lanham Act. Use in commerce requires use of a genuine character, in a way sufficiently public to identify or distinguish the marked goods in an appropriate segment of the public mind. Considering the totality of the circumstances, including relevant non-sales activities, the panel agreed with the district court that the evidence in the record showed that Social Tech’s use of the MEMOJI mark was not bona fide in commerce. Accordingly, Apple was entitled to cancellation of Social Tech’s trademark registration.

When it comes to intellectual property, it's nice to see grifting not work out for the grifters once in a while.

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Posted on Techdirt - 14 July 2021 @ 8:47pm

Japanese Police Arrest Man For Selling Modded Save Files For Single-Player Nintendo Game

from the what-the-what? dept

We've already written a few times about how Japan's onerous Unfair Competition Prevention Law has created what looks from here like a massive overreach on the criminalization of copyright laws. Past examples include Japanese journalism executives being arrested over a book that tells people how to back up their own DVDs, along with more high-profile cases in which arrests occurred over the selling of cheats or exploits in online multiplayer video games. While these too seem like an overreach of copyright law, or at least an over-criminalization of relatively minor business problems facing electronic media companies, they are nothing compared with the idea that a person could be arrested and face jail time for the crime of selling modded save-game files for single player game like The Legend of Zelda: Breath of the Wild.

A 27-year old man in Japan was arrested after he was caught attempting to sell modified Zelda: Breath of The Wild save files.

As reported by the Broadcasting System of Niigata (and spotted by Dextro) Ichimin Sho was arrested on July 8 after he posted about modified save files for the Nintendo Switch version of Breath of The Wild. He posted his services onto an unspecified auction site, describing it as “the strongest software.” He would provide modded save files that would give the player improved in-game abilities and also items that were difficult to obtain were made available as requested by the customer. In his original listing, he reportedly was charging folks 3,500 yen (around $31 USD) for his service.

Upon arrest, Sho admitted that he's made something like $90k over 18 months selling modded saves and software. Whatever his other ventures, the fact remains that Sho was arrested for selling modded saves for this one Zelda game to the public. And this game is fully a single-player game. In other words, there is not aspect of this arrest that involved staving off cheating in online multiplayer games, which is one of the concerns that has typically led to these arrests in Japan within the gaming industry. This is more like people getting mods for their owned games, along with save game files being traded, something that has existed in gaming for as long as the industry has existed.

As Kotaku notes, this isn't wholly new for Japan.

While this might seem wild, being arrested for selling save files, it’s not a new situation in Japan. Police in Japan have previously arrested folks for modifying video game software which violates the Unfair Competition Prevention Law in Japan. This same law was also used by Nintendo to sue a go-kart company in 2017. In 2015, another man in Japan was arrested after selling cheats in the popular online shooter Alliance of Valiant Arms.

Except, again, in most of those instances the police were arresting those selling mods and cheats for online multiplayer games. That's, frankly, bad enough, but we're now talking about the arrest of a person for selling save game files for a single-player game.

And the real question becomes: who is this arrest protecting? The selling of these files doesn't take any considerable money out of Nintendo's pocket. It doesn't harm other players of the game in the way cheating in online games does. So why is this arrest even happening? And, if there's no good answer to that question, why is such a poorly written law that allows for this arrest remaining in place?

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Posted on Techdirt - 13 July 2021 @ 8:25pm

'Resident Evil 8: Village' Broken Due To DRM, Cracked Version Fixes It

from the your-game-on-crack dept

Any review of the stories we've done on DRM in video games will reveal two main categories as far as themes for those posts. The first is that DRM is laughably ineffective. DRM is an arms race that only ever has one winner: those who seek to circumvent it. Even the once-vaunted Denuvo DRM, thought, for some time, to be undefeatable, has now been reduced to being an industry joke. The other theme is how DRM has awful effects on paying customers and absolutely zero negative effects on those who commit copyright infringement. So, what is DRM? A useless platform used by video games with only one real impact: annoying paying customers.

But one point that often gets lost is that cracked versions of games that include annoying DRM aren't just functioning as copyright infringement (though they certainly are primarily that), but also that these cracked versions can also be legitimately seen as fixing these broken games. For an example of this, one need only look at the PC gaming experience surrounding Resident Evil 8: Village, which is fundamentally broken on the PC for paying customers.

The background here is that Capcom actually layers two different DRM systems on the game, apparently as a method for making the game much harder to crack. Instead of being cracked at the time of release, in May, the game was only cracked here in July. The problem is that this 2 months worth of protection appears to have come at the cost of the game being able to keep up when players do very necessary things in a Resident Evil game like, oh say, shooting zombies.

The retail version includes easily reproducible scenarios where attacking an advancing zombie with a gun—something you do quite often in Resident Evil games—can trigger a visible on-screen stutter. In other words, the image freezes for a noticeable moment before the game catches up, and this can be seen in RTSS's real-time graph as a spike.

Whatever Capcom and Denuvo worked up this time around seems to have evaded crackers' efforts for much longer. That may have come at the price of guaranteed smooth performance—with gaming analysts like Digital Foundry's Alex Battaglia maligning the game's PC version. "This stuttering honestly leaves a very bad first impression for this game, as the pivotal moment of a first-person game with guns is shooting those guns," Battaglia said shortly after RE8:V's May 2021 launch. "If that is unsatisfying very often when you do it, then the game is doing something wrong."

Notably, the cracked version has none of these stuttering issues. In other words, the crack, or more specifically the routing around of the DRM, simply fixes the game. Yes, it's also a method for playing the game for free and thereby committing copyright infringement, but think about what this means in summary. Capcom released a game where the core gameplay element -- shooting bad guys -- doesn't work right. The cracked version makes that core gameplay element works correctly. If you're a paying customer of Capcom's, where does this leave you?

Well, it leaves you in a place where the company you bought the game from has sold you an inferior product compared with the one the pirates are offering you for free. Does that make copyright infringement morally right? Absolutely not. But it is also not solid moral footing for the company to punish its paying customers for the crime of paying for the game as opposed to pirating it. Selling an inferior product is not a business strategy.

For what it's worth, the guilty party in this equation looks more to be the Capcom side of the equation rather than Denuvo, but that doesn't change the fact that something like 2 months worth of protection came at the cost of the paying customer. In what world does that make any sense at all?

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Posted on Techdirt - 9 July 2021 @ 7:39pm

Cord-Cutting Leads To Gaming Studios Exploring In-Game Ads To Unlock Gaming Perks

from the this-is-gonna-suck dept

Advertising in the digital age is always something of a tricky subject. On the one hand, we have made the point for years that advertising is content and content is advertising. The point there is that the more useful and entertaining or engaging advertising tends to be, the more the public looks at it as just more content to consume, while really good content also serves as an advertisement of sorts for the content provider. Many folks simply believe that the public hates advertising full-stop, but that's really not true. Were it true, one of the hallmark experiences of the Super Bowl wouldn't be watching the ads. Instead, ads have to be engaging, fun, or useful. Unfortunately, the vast majority of advertising is otherwise, leading to the public tending to look for ways to not have to experience advertising generally.

The worst solution proposed in all of this is to find new and nefarious ways to force the public to view ads. The second worst solution is to coerce them into doing so. And the worst place to do any of this, it seems to me, is in the video game space, where the public has already often times dropped hundreds of dollars on gaming rigs and the games themselves. But that, it seems, is exactly what company PlayerWON is looking to roll out.

A first-of-its-kind in-game advertising platform called playerWON launches this week, allowing big-name marketers that are used to running splashy TV ads the ability to target younger demographics with similar types of spots that will run in video games.

-The platform, which is owned and operated by Simulmedia, a TV ad tech company, will let users determine whether they want to watch a 15 or 30-second video ad in exchange for being able to unlock exclusive gaming perks.

-Simulmedia has struck deals with some of the world's biggest gaming studios, including Electronic Arts (EA) and Tencent's Hi-Rez Studios, its EVP, Gaming and OTT Dave Madden told Axios.

If you're anything like me, your initial reaction to all of this is likely to result in you having convulsions over just how repulsive this all is. But we should take a step back and acknowledge something: this could be done well. The idea of injecting optional advertising into gaming, especially free-to-play games, isn't an inherently awful idea.

No, the real problem is that virtually nobody in the gaming public has, or should have, any faith that this will be done well. What does doing it well mean? Well, for starters:

  • The "perks" involved had damned well better be nice-to-haves and/or cosmetic and not offer some kind of boost to being able to compete in or play the game itself. Otherwise, you've broken the balance and experience of the game.
  • The ads had better stay short and not interrupt the gaming experience to the point of television, where gamers just leave the room while it plays.
  • The ads, as noted in the opening of this post, must be engaging, useful content of some kind.

Missing on any of those three will cause an even larger revolt among the gaming public than will almost certainly already occur. If you need an example of how to absolutely not attempt any of this, 2K Sports has you covered.

Now, while this is largely being spurred on by younger members of the public also being cord-cutters, making them less likely to be reached by traditional advertising, Morgan Stanley seems to think that in-game ad programs like this could be a $2 billion industry. Though, importantly, that projection is based on nearly half of gamers opting into the ads.

I'm sorry, but there's no fucking way that's going to happen, even if this is done perfectly. Not if it's opt-in. What is more likely is that this will only be opt-in for a while and then someone, or several someones, are going to try to first make it opt-out and eventually non-optional. And then you're going to really see the consequences of advertising programs being done terribly, because nobody will buy those games.

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Posted on Techdirt - 8 July 2021 @ 8:10pm

Sony Studio Acquisition Of Nixxes May Portend Company Opening Up The PlayStation's Walled Garden To PC Gaming

from the finally dept

Late last year, we discussed Sony's corporate report on where its income sources were detailed out and laid bare the fact that the biggest revenue generator for the company was in gaming. We noted at the time that what made all of this really interesting is that this revenue generation occurred under Sony's famous walled-garden policies, where the company went to great lengths to silo its own games into the PlayStation console while also trying to gobble up exclusives for the PlayStation. Coinciding with all of this, though, were some cracks starting to form in that policy. Sony finally opened up games on the PlayStation to cross-platform online play, allowed the PlayStation Now service to run on PCs, and even moved some of its first-party titles onto other platforms, such as having MLB: The Show appearing on the Xbox for the first time and Horizon: Zero Dawn getting a belated PC release.

But those are toe-in-the-water type things. It would be reasonable for anyone to wonder just how committed Sony was going to be in opening up the garden and exploring a wider program of getting first-party games on other platforms. Well, Sony just announced the acquisition of gaming studio Nixxes and it sure looks like it's the answer to those concerns, given what Nixxes does.

If the name Nixxes doesn't ring a bell for most gamers, that's because the studio hasn't developed any original projects in its over-20-year history. Instead, Nixxes has primarily specialized in creating a variety of PC and console ports for games from the likes of Eidos Montreal and Crystal Dynamics (both now Square Enix subsidiaries).

That makes Nixxes an especially intriguing acquisition for Sony, which has been slowly dipping an increasing number of toes into the PC gaming space in recent years. After Horizon: Zero Dawn hit the PC last year, Sony said in its annual report that it "will explore expanding our 1st party titles to the PC platform in order to promote further growth in our profitability." Then, in May, Sony listed Uncharted 4 under the "more PC releases planned" section of an investor report, alongside the recent PC port of former PlayStation exclusive Days Gone.

Save for some sort of mystery work nobody could see coming, it appears that there is exactly one reason why a company like Sony would acquire a studio like Nixxes: to bring PlayStation games to the PC. And, while there is a long history of console ports on PC being done quite poorly, Nixxes actually has a pretty good reputation when it comes to this sort of thing.

So what does this mean? Well, at the very least it portends that we're all going to see a real-time experiment performed by a company that has preferred to have an iron grip on its IP, and what it will do to revenue to slacken that grip. It will come as no surprise to readers here that it is my belief that this will be an absolute boon to revenues. The days of console exclusives are waning. The days of the public having little choice when it comes to options in the gaming space are gone. In its place is an industry where opening things up for fans to give them plenty of options and choice in how to spend their money with you is quickly becoming the norm.

While I'm happy to criticize Sony when the company deserves it, it's worth recognizing that these sorts of culture shifts cannot be easy to pull off. If Sony is actually going to go head first into a new way of operating, I'll be here cheering them on and hoping for its success.

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Posted on Techdirt - 7 July 2021 @ 7:55pm

After All That, Nintendo Can't Even Get $50 A Month Out Of RomUniverse

from the time-and-money-well-spent dept

The saga of how RomUniverse, a site dedicated to offering ROMs for classic Nintendo games, came to its end is both frustrating and very dumb. Back in 2019, Nintendo launched a massive war on ROM sites, coinciding with the release of a mini version of Nintendo's NES console. Eventually, the company's sights turned to RomUniverse. Run solely by Matthew Storman, the site first tried and failed to crowdfund its legal expenses, made the lame argument that somehow the first sale doctrine meant that Storman could legally offer up digital versions of bought Nintendo games, only to see Storman represent himself in court and eventually lose. While Nintendo always had the law on its side, it was also true that sites like RomUniverse existed for a long, long time and Nintendo wasn't injured enough by any of this for it to be on the radar prior to the ROM War of 2019. In fact, I would argue that ROM sites for a long, long time kept up the interest in these classic games that created a market for Nintendo's classic console releases.

I would also argue that the whole thing was a giant waste of time and money, an assertion backed up by the fact that the victorious Nintendo reportedly can't even get $50 a month out of Storman, despite court orders.

You can’t get blood from a stone, and you can’t squeeze a relatively measly $50 payment out of a guy whose primary source of income was the video game rom site you sued into oblivion. Earlier this year Nintendo’s 2019 lawsuit against website RomUniverse concluded with the site being shut down and Nintendo awarded $2.1 million dollars in damages. That’s $35,000 for each of the 49 Nintendo games found on the site plus $400,000 in trademark damages. The chances of Matthew Storman, who defended himself in court and whose only source of income was the now-defunct rom site, being able to pay those damages are incredibly slim. In a recent court filing obtained by Torrentfreak, Nintendo complains that Storman hasn’t made his court mandated monthly payment of $50.

As a result, Nintendo is seeking a permanent injunction against Storman to keep him from ever re-launching RomUniverse. That, frankly, may be what the company was after this entire time.

But that doesn't make the futility of this whole legal enterprise any more sensical. Nintendo managed to legally pummel a single man who was, admittedly, infringing their copyrights. But one is free to wonder aloud if this legal route was really the only method Nintendo had for getting the site shut down. If Storman truly cannot manage a $50/month sanctions payment to Nintendo, there is no hope of them recovering the $2.1 million awarded in court, an amount that Storman also appears by all accounts to be unable to pay.

And so Nintendo has a legal victory without any monetary award, Storman's own actions have resulted in his fiscal life likely being in shambles, and we all go on our merry way. Again, this is really how this had to happen?

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Posted on Techdirt - 6 July 2021 @ 7:44pm

DRM Strikes Again: Ubisoft Makes Its Own Game Unplayable By Shutting Down DRM Server

from the legit-screwed dept

It's not exactly a secret that we've been very anti-DRM here at Techdirt for some time. It's honestly perplexing how anyone can be otherwise. DRM has shown time after time to be of almost no hindrance whatsoever for those seeking to pirate video games, but has done an excellent job of hindering those who actually bought the game in playing what they've bought. Ubisoft, in particular, has had issues with this over the years, with DRM servers failing and preventing customers from playing games that can no longer ping the DRM server.

And while those instances involved unforeseen downtime or migrations impacting customers' ability to play their games, this time it turns out that Ubisoft simply stopped supporting the DRM server for Might and Magic X-Legacy. And now basically everyone is screwed.

Last month, Ubisoft decided to end online support for a bunch of older games, but in doing so also brought down the DRM servers for Might and Magic X - Legacy, meaning players couldn’t access the game’s single-player content or DLC.

As Eurogamer reports, fans were not happy, having to cobble together an unofficial workaround to be able to continue playing past a certain point in the single-player. But instead of Ubisoft taking the intervening weeks to release something official to fix this, or reversing their original move to shut down the game’s DRM servers, they’ve decided to do something else.

They have simply removed the game for sale on Steam.

This, of course, does nothing for the people who already bought the game and now suddenly cannot progress through it completely, as all the DLC is non-functional. They can play the game up until a point, but then it just doesn't work.

There are multiple bad actions on Ubisoft's part here. First, using DRM like this is a terrible idea with almost no good consequences. But once it's in use, you would think it would be the obligation of the company to ensure any changes it makes on its end don't suddenly render purchases made by its customers unplayable. In other words, rather than ending support for a DRM server that nixes parts of a paid-for game, the company could have rolled out patches to remove the DRM completely so that none of this happened. After all, with the game no longer even available as a new purchase, what would be the harm in removing the DRM? And, of course, there's the total lack of communication to Ubisoft customers about basically all of this.

Which is what has people so understandably pissed.

Players are now understandably pissed, taking to the game’s Steam reviews to leave messages like:

“Doesn’t work anymore. Ubisoft refuses to fix the game. Pathetic.”

“Ubisoft took my money then shut it down.”

“This is theft, and if Steam and the relevant governments are fine about it, it’s legal theft. I will never purchase anything from Ubisoft anymore on principle, even if they decide to try and do something about this mess.”

All because Ubisoft just cannot imagine a world where the DRM its using could just go away, leading to happier paying customers.

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Posted on Techdirt - 2 July 2021 @ 7:39pm

Sony Hates You: EarthBound Let's Plays Flagged For Copyright Infringement Due To Soundtrack

from the six-degrees-of-infringement dept

It's no secret that I don't care for the way that Nintendo treats its biggest fans when it comes to allowing them to view and use its IP in order to express their fandom. I have been known, after all, to create entire genres of posts with "Nintendo Hates You" in the title. And, so, when I noticed headlines about how YouTube videos for let's-plays featuring the classic SNES game Earthbound were being demonitized or taken down over copyright claims, I was sure I would be writing yet another of those headlines.

But, nope. Instead, this is a story about how Sony has issued copyright claims, and apparently rebutted counterclaims, against let's-plays for Earthbound not because it published the game, which it very much did not, but because Nintendo licensed the soundtrack for the game to Sony for an album release.

Over the past couple of weeks, reports have come flooding in from YouTube users who say that their EarthBound-based videos are being flagged for copyright by Sony. In some cases, it's reported that Sony has claimed the ad revenue for the video in question; in others, the videos appear to have been removed entirely.

As is often the case with YouTube, the reasoning for this lies with the game's music. While Nintendo still owns the EarthBound/Mother brand in terms of its video games and the franchise as a whole, the game's soundtrack was released as a studio album back in 1989 under Sony's then-named CBS/Sony music label, essentially meaning that any piece of music featured on that record can be claimed by the company.

Okay, if you really needed a more perfect example of how broken copyright laws have become in the modern era, this must certainly be that case. Nintendo releases a game called Earthbound in 1994. Nintendo composers created the music for the game. In 1994, and again in 2004, Sony licenses the music to release a studio album soundtrack. Fast forward nearly twenty years and suddenly people releasing videos of them playing the game that was created by Nintendo nearly thirty years ago are having those videos demonitized or taken down... over the album release. If you can seriously get through that and think that any of this makes sense, you have capacities that I simply do not.

Plenty of YouTube users have taken to social media to express their upset at Sony's decision to remove their content, hoping to find a way to restore their work. The videos will no doubt be getting flagged automatically, what with the soundtrack being part of Sony's catalogue, so unless Sony decides to manually excuse the affected videos going forward, it may be unwise to include music from the game in any future content.

Notably, some of these YouTubers are also indicating that they disputed the notices only to have Sony dig its heels in. If that's the case, this isn't just our stupid automated copyright notice systems creating chaos again.

But here's what this really all boils down to: if even Nintendo is allowing this content to remain up, it should probably stay up. Nintendo has arguably been one of the most aggressive enforcers and protectors of its IP on the planet. Sony is obviously no slouch in that respect, but there is literally nobody watching let's-plays in order to listen to the game soundtrack in the same manner they would an album version of it. In fact, one would think that it might serve as free advertising of Sony's albums, if nothing else.

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Posted on Techdirt - 29 June 2021 @ 7:52pm

Ubisoft Teams Up With Mystery Rights Holder To Remove Fun Fan-Made 'GoldenEye 007' Maps From 'Far Cry'

from the no-fun-for-you dept

We have seen our monumentally absurd permission and copyright culture kill off all sorts of cool fan projects. Perhaps no industry is impacted by this more than the video game space, where you have the combination of rabid fans of particular games and franchises coupled with an above average level of technical skill in exhibiting that fandom. This combination sees an absolute ton of fan-made projects, including ports of games to different hardware, fan-made games, and even the re-creation of old games within new ones. It should be obvious that all of this carries very little monetary risk for the game makers, and, in fact, often times could be a boon, and yet it is all too common for publishers and developers to sic lawyers on their own fans rather than figuring out a way to coexist or benefit from them.

But sometimes this nonsense gets down to an absurdly granular level. Such appears to the be the case with one YouTuber going by Krollywood, who spent hundreds of hours recreating the maps for the classic N64 game GoldenEye 007 in Far Cry 5, only to have those maps removed by Ubisoft in response to a copyright claim.

You could find and play these levels yourself by hopping into Far Cry 5’s arcade mode and punching in Krollywood’s username. As of this writing, you no longer can. Ubisoft removed them all from Far Cry 5, a move that Krollywood described as “really sad,” noting that he probably won’t be able to restore them since he’s “on their radar now.”

“I’m really sad—not because of myself or the work I put in the last three years, [but] because of the players who wanna play it or bought Far Cry just to play my levels,” Krollywood told Kotaku in an email today.

Ubisoft hasn't responded as of this writing as to who made the copyright claim, but it appears the rights are held by MGM, the film studio that put out the movie of the same name. Notably, it's unclear just how valid a copyright claim would even be. Ubisoft owns the code used to make the game and used by fans to make new levels. Krollywood recreated the levels, rather than borrowing any digital assets from the original. Also, the maps were not for sale; they were free to download.

But even if we granted that MGM or someone else could make a valid copyright claim on these maps... why the hell bother to do so? What precisely is the threat being staved off here?

Players just want a taste of nostalgia, and MGM has a track record of shattering the plates before they’re even delivered to the table. (Recall GoldenEye 25, the fan remake of GoldenEye 007 remade entirely in Unreal 4 that was lawyered into oblivion last year.) MGM has further neglected to do anything with the license it’s sitting on—for a game that’s older than the Game Boy Color, by the way. At the end of the day, shooting this latest fan-made project out of the sky comes across as a punitive move, at best.

“In the beginning, I started this project just for me and my best friend, because we loved the original game so much,” Krollywood said. “But there are many GoldenEye fans out there … [The project] found many new fans and I’m so happy about it.”

Sadly, it appears happiness is not on the menu at present, to keep the analogy going. Instead, the only dish served is cold, hard copyright.

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Posted on Techdirt - 28 June 2021 @ 7:54pm

Ringo Starr Drops Trademark Challenge Against 'Ring O' Sex Toy

from the missed-opportunities dept

First, an apology. I tend to cover much of our trademark beat here at Techdirt. And regular readers here will know that my sense of humor trends towards the juvenile and vulgar. It is with a solemn and heartfelt apology, therefore, that I must report to you all that I somehow missed that there was a trademark fight between famed drummer Ringo Starr and Pacific Coast Holdings IP, LLC, makers of a Ring O -- wait for it -- sex toy. I really should have caught this, but missed it.

The background on this is that Starr's legal team opposed the "Ring O" trademark Pacific Coast Holdings applied for, claiming that the public would be confused into believing that Starr was now somehow in the sex toys business.

Documents filed by his lawyers in 2019 said: "Consumers will likely believe that Opposer's [Starr's] newest venture is sex toys - and this is an association that Opposer does not want."

It must certainly be true that Starr did not want this name on a sex toy. He may have even believed people would think he was somehow associated with sex toys as a result. But his legal team very much should have explained to him that a product name like this doesn't actually constitute trademark infringement, given that there was no other association made with the drummer and that they don't compete with one another in commerce.

While that apparently wasn't done up front, this is all now once again in the news because Starr and Pacific Coast Holdings have entered into a co-existance agreement, part of which includes Starr dropping his opposition.

Now, according to the settlement, Pacific Holdings and Momentum Management have agreed to "avoid any activity likely to lead to confusion" between their product and the musician.

The deal says the companies can only use the name for adult sex aids and desensitising sprays, and must have a space between the "Ring" and the "O".

The companies have pledged not to "degrade, tarnish or deprecate or disparage" Starr's name or image. They also said they wouldn't make any reference or innuendo associating the product with Starr, or give the impression that he's associated with it.

In other words, the company will continue to use the name as it had been, but now stipulate that it won't in the future make any other reference to Ringo Starr. If that's a win, it is certainly a meager one.

It sure would be nice, however, if the famous didn't walk through life with IP rabbit ears attempting to pick up any real or imagined reference to themselves, just waiting to pounce over intellectual property concerns that don't actually exist.

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Posted on Techdirt - 25 June 2021 @ 7:39pm

Nintendo Continues To Make It Hard To Play Classic Games Legitimately

from the pew-pew dept

When it comes to being crazy restrictive on all things IP coupled with being amazingly combative with making lots of properties readily available for legitimate purchase, Nintendo barely needs an introduction. This is the company that has taken down ROM sites for classic games all over the internet, taken down fan-made games that use Nintendo properties, taken down all manner of fan-made ports of Nintendo properties onto other hardware, and has even taken down fan-made creations that involve putting Nintendo characters and the like into 3rd party creative games and software. Now, to be clear, Nintendo can do all of this. The open question has always been why it bothers to do so. What threat is a fan-game to legitimate Nintendo titles? Especially when Nintendo often times makes it quite difficult to legitimately get classic Nintendo games on its current hardware.

Case in point, Nintendo recently announced a new Metroid side-scroller that has Metroid fans very, very excited. So excited that some of them want to go back and play the classic Metroid games before playing the new title, only to find out that on the Nintendo Switch you just can't.

During E3 2021, Nintendo announced Metroid Dread, the first 2D classic style Metroid game in nearly 20 years. As you might expect, lots of fans got excited. Many of them wanted to play the older Metroid games as they waited for Dread to release in October. However, if you go looking for old Metroid titles on the Switch, you’ll quickly discover that Nintendo has done a poor job of supporting the series and its catalog of beloved games. In fact, you’ll need to boot up a Wii U if you’re looking to enjoy games like Metroid Fusion or Metroid: Zero Mission.

A quick search for Metroid on Nintendo’s eShop returns a selection of classic titles. But after toggling on a filter to only show Switch content, you’ll quickly see that none of those games are currently available on Nintendo’s super-popular console/handheld hybrid. In fact, the only two items that show up for Switch are a pre-order page for Dread and for some reason a random game called Wunderling.

It would be one thing if Nintendo wanted its stance to be that the public can only play legitimately purchased classic games on its hardware, thereby nixing things like ROMs, ports, etc. That would be, oh, let's just call it annoying but expected. But to remove the ability for fans to play those classic games out of excitement for the new title and to fail to make those classic games available on its most current and popular hardware? Well, that's just callous and ultimately unproductive.

We have said for a long time that in many instances piracy, especially in the retro-gaming space, can actually be a boon to sales of new releases of franchises like Metroid. That's the case because of exact circumstances like this. Nintendo announces a 2D Metroid side-scroller, leading fans to want to revisit previous 2D side-scroller Metroid games. When they cannot do so on their Nintendo hardware, well, we've just injected a massive negative perception into what should be a totally positive fan experience.

That is, of course, unless they turn to copyright infringement instead.

Meanwhile, fans and pirates have done the hard work and continue to be better than Nintendo at supporting old games. In the case of Metroid, this is incredibly useful for anyone looking to play the past games without relying on Nintendo’s official stores or consoles. You are, right now, a quick Google search and a few files away from having hundreds of NES and SNES games available to play on whatever device you are using to read these words. Many of these fan-created emulators rival anything Nintendo has officially created and often support more features, fan translations, and mods. These emulators and their communities have done incredible work preserving Nintendo’s history and have no doubt helped introduce folks to older games from the company.

Yet Nintendo continues to fight emulators and ROM sites while offering no real legal equivalents. Imagine an alternate universe where fans excited for Metroid Dread could head over to a giant online Nintendo store on their PC or phone, where nearly every classic Nintendo game was waiting for them. Nintendo would make a ton of money and would, in the process, help support classic games for decades to come. But instead, it’s just lawsuits and disappointment.

It feels like we have a new Nintendo corporate tagline for the brand.

"Nintendo: it's just lawsuits and disappointment."

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Posted on Techdirt - 24 June 2021 @ 7:28pm

Streamer Raptors Continue To Test Twitch's Appropriate Content Guideline Fencing

from the wet-willy dept

It's no secret that we've dinged streaming giant Twitch over and over again these past months. Frankly, it was done with good reason, as the Amazon-owned company continues to respond to crisis after crises, conflict after conflict, with pure confusion and callous behavior. While some of those conflicts were Twitch-specific, the company is also dealing with the more common problem of attempting to have a coherent content policy when it comes to what is appropriate to stream and what is not. For instance, Twitch recently found itself in the headlines yet again first by yanking advertising revenue from so-called "hot tub meta" streamers, where streamers live-stream in bathing suits from hot tubs or kiddie pools. Kaitlyn "Amouranth" Siragusa was one of the more prominent names impacted by this move, which again came with no warning. As a result of the public backlash over Twitch choosing not to communicate with its own creative community, the platform announced a "hot tub channel" category, as though that solved anything.

But now this has moved on from just a situation where Twitch sucks at communication with streamers, its most important asset. With all of the above having occurred, it seems that the raptors are now going about testing their fencing when it comes to what content is appropriate and what is not. And, if you want to get a sense of just how weird these tests can get, you need only dive into the latest Twitch trend: ear lick meta streams. Perhaps not surprisingly, Amouranth is once again leading this charge.

Perpetual Twitch provocateur Amouranth, along with model indiefoxxlive, have been temporarily taken off the livestreaming service following some delightfully bizarre video clips going viral on social media. While Twitch never comments on bans, the timing coincides with the proliferation of a clip in which Amouranth wears a horse mask. Neighing, the controversial Twitch streamer sometimes takes the entire mic into her mouth to make slurping sounds.

Similarly, if you click on Twitch’s “ASMR” tag at the moment, the most popular streamer is a woman whispering with the occasional wet sound thrown in. The community has taken to calling such shticks “ear lick streams,” as that is basically what these broadcasts sound like.

"Delightfully bizarre" appears to be exactly the right phrase for all of this. ASMR is not specifically meant to have any sexual connotation to it. That being said, it seems quite clear that what Amouranth and the like are doing is in part at least attempting to rope some measure of sexuality into behavior that would otherwise not necessarily have any sexual connotation to it. And, of course, adding a dash of the absolutely absurd just for shits and giggles.

In other words, if you want to argue that there is clear sexual connotation to these specific videos (you can find them in the link above if you're curious), I won't argue with you all that much. But -- and this is a big caveat -- finding precisely where and how any of this violates Twitch's streaming guidelines on what's appropriate is very much an exercise in subjectivity.

The general idea predates Twitch, of course, but it’s certainly true that Amouranth is savvy enough to command attention wherever she goes. Whether or not viewers approve of her methods is beyond the point. Twitch’s Community Guidelines have multiple pages dedicated to sexually suggestive content on the site, but the general gist is that it’s not allowed on the platform.

“Evaluations on the sexual suggestiveness of a behavior or activity are independent of user attire and are instead based on the overall surrounding framing and context,” the rules read. “This policy also applies to embedded media, augmented reality, creative broadcasts, and channel content—such as banners, profile images, emotes, and panels—that are focused on provocative images or video.”

But this leaves us still with two issues. The first is yet again how Twitch doles out these punishments and changes without any real communication with streamers or the public. It all just kind of happens and we get to play the game of attempting to interpret what it all means after the fact. The second issue is common among online platforms that do a shit job of having clear content guidelines: nobody actually knows where the lines are and these punishments tend to be doled out asymmetrically.

For example, the above guidelines would appear to prohibit, oh I don't know, a liveplay of Dungeons and Dragons in which the players creatively act out to one degree or another sexual situations. And, yet, shows like Critical Role which stream on Twitch have had such content in one degree or another on the regular. Is that considered as graphic as a woman in a horse mask engulfing a microphone in her mouth?

Maybe? This feels like less of an obvious answer and more of a discussion open to interpretation. But, since Twitch has the final say for what occurs on its platform, only its opinion actually matters. But that doesn't change the fact that Twitch's guidelines are vague and unhelpful, its communication method neutered, and its handing out of punishment arbitrary and capricious.

Good times. Sluuuuuurp!

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Posted on Techdirt - 23 June 2021 @ 8:32pm

Spielberg's Production Company Inks Multi-Film Deal With Netflix, I Guess To Win A Bunch Of Emmys Instead Of Oscars

from the about-face dept

Way back in the ancient history of 2019, famed director Steven Spielberg became something of the front man for the aging Hollywood crowd that sees streaming services as somehow deficient when he announced plans to push the Academy to disallow Oscar nominations for films that appeared first on streaming services, arguing they should instead be considered for Emmys. Spielberg's plans were for naught, however, as the Academy refused to ban stream-first films from nominations. This led to Spielberg, directly and through mouthpieces, walking back his very clear intentions so as to pretend that he felt differently than was the reality. I'll stress again that all of this occurred all of two years ago.

Which is part of what makes it strange that Spielberg's production company, Amblin Partners, just inked a multi-film deal with Netflix.

In a press release on Netflix's website, the two companies announced that the partnership will result in "multiple new feature films per year." As is often the case, today's press release was accompanied by prewritten statements by various executives involved, including Spielberg himself. The quote attributed to him says:

At Amblin, storytelling will forever be at the center of everything we do, and from the minute [Ted Sarandos, Netflix co-CEO and chief content officer] and I started discussing a partnership, it was abundantly clear that we had an amazing opportunity to tell new stories together and reach audiences in new ways. This new avenue for our films, alongside the stories we continue to tell with our longtime family at Universal and our other partners, will be incredibly fulfilling for me personally since we get to embark on it together with Ted, and I can’t wait to get started with him, [Scott Stuber, Netflix head of Global Film], and the entire Netflix team.

The obvious immediate question that comes to mind is to wonder aloud just how many Emmys Spielberg thinks he can win under this partnership. Snark aside, it's worth noting that Amblin doesn't solely produce films by Spielberg and that the production company has already produced some streaming hits on Netflix, most notably The Trial of the Chicago 7, as noted in the ArsTechnica post.

Still, it's quite an about face for a world famous director, who, only 2 years ago, was plainly arguing that films that release on streaming services like Netflix are somehow a different animal than those that first enjoy a theatrical release. That whole argument was flawed for multiple reasons, including just how much movie content is now primarily enjoyed via streaming, coupled with the shoddy job theatres have done in actually fulfilling their value-add propositions, otherwise known as the only real reason why the public should want to go to the theatre instead of watching a film at home.

If Spielberg can be dragged into modernity, that's a good thing. But we shan't forget his previous statements, if for no other reason than they should probably serve as a warning to any other "get off my lawn" crowd members who want to pretend like culture doesn't change.

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Posted on Techdirt - 22 June 2021 @ 8:47pm

Sweden Abruptly Decides Esports Are Not Sports When It Comes To COVID-19 Exemptions

from the going-viral dept

We've marked an awful lot of progress markers when it comes to the emergence of esports into the popular lexicon throughout the world. If there were a general theme to those posts, it certainly would be the progress esports has made in being considered a real, established sport, and not just a hobby that borrows that word with no validity. Progress, as I enjoy saying, is not linear, however.

And now it appears that how at least one nation is dealing with the world's early emergence from COVID-19 protocols, is exposing one minor step back on all the progress. Sweden was set to host Valve's DOTA 2 big championship contest, The International, until very recently when the country's sports federation suddenly decided that esports aren't actual sports when it comes to COVID-19 travel exemptions. By way of background, this tournament was originally supposed to be held in Sweden in 2020, but it got pushed to 2021 due to the pandemic. As Valve planned for the event, it worked with the Swedish authorities to make sure everything was a go.

As Valve outline in a blog post, Sweden still has a number of stringent restrictions in place regarding public gatherings, which would otherwise threaten the ability to hold a big in-person tournament like The International, even though elite sporting events have been excluded from these.

Valve claims that as planning continued local authorities “continued to reassure us in our regular and constant communications with them that The International - Dota 2 Championships qualified for the same exemptions other elite sporting events there received.”

The exemption language specifically states that travel exemptions would apply to, among other categories,:

-people travelling for the purpose of performing highly skilled work, if their contribution is necessary from an economic perspective and the work cannot be postponed or performed remotely, including people who will take part in or perform necessary tasks at elite sports competitions

That sure does sound like The International would fit the categorization. Due to that and to the communication with the Swedish government, Valve planned to host the tourney in Stockholm. Then, suddenly, The Swedish Sports Federation voted to not allow any esports organizations as members. As a result, the COVID-19 exemptions no longer would apply to anyone traveling to the country for the tournament. Soccer and other sporting matches that include large crowds and international players are all moving forward; esports tourneys like The International will not.

Not wanting to give up, Valve instead asked Sweden’s Minister of the Interior to “reclassify The International - Dota 2 Championships as an elite sporting event.” Which he immediately refused. They then appealed directly to the Swedish government, and were knocked back again.

So now, as July approaches, Valve has decided to all but abandon their Swedish plans and start “looking for possible alternatives elsewhere in Europe to host the event this year, in case the Swedish government is unable to accommodate The International - Dota 2 Championships as planned.”

Now, we can argue all day long whether the world in general, or Sweden in particular, is in the right place when it comes to combatting COVID-19, whether large sporting events like this should even be held, or under what circumstances they should be held. But what doesn't seem to make sense in any capacity is to have the approval to host this agreed upon tournament live at the pleasure of a Swedish sports organization's opinion on whether or not esports is sports-y enough to warrant the same exemptions as other large sporting events.

Two steps forward, one step back, when it comes to esports' place in the world alongside more traditional athletic events. And with just a dash of annoying bureaucracy to boot.

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