Posted on Techdirt - 26 July 2016 @ 2:33pm
Any time we discuss the segment of our population that is still, despite all evidence to the contrary, pushing anti-vaccination conspiracy theories out into the ether, the comments section is inevitably invaded by these proponents. I know I can't stop it, so just go ahead and leave what I'm sure will be your well-reasoned, science-backed arguments as to why we shouldn't trust one of the most life-saving kinds of medicine ever invented.
That said, this is not a post about the plausibility that vaccinations are the reason for all the world's ills. It is instead a post about how the distributors of the upcoming sure-to-be smash hit film about the horror of vaccinations, creatively entitled Vaxxed, are also going around threatening people arguing against its message with defamation for pointing back at the filmmakers' own words.
Meet Fiona O'Leary of Ireland. Fiona is an advocate for autistic children, helping to run a group called ART (Autistic Rights Together) as well as a Tumblr page dedicated to dispelling the myths of autism and vaccines. On that Tumblr page and on social media, O'Leary has often set her sights on the makers and distributors of Vaxxed, including producers Polly Tommey and Del Bigtree. Included in her pushback, O'Leary points out some rather unfortunate comments both have made about autistic children, as well as interviews and videos in which Tommey in particular pushes religious faith to treat autism. Through it all are the calls for parents to not vaccinate their children.
The result of this work has been a letter sent threatening a defamation lawsuit.
Fiona O’Leary has posted the threats, from Cinema Libre Studio CEO Philippe Diaz, on her Facebook profile:
Wow you threaten to sue an Autistic Advocate and Mother to five children in West Cork! Why? Because I don’t want babies and children DYING from preventable diseases! Because I have had enough of your lies about Vaccines causing Autism! Because I am sick of how you exploit Autistic people! How dare you!
And the threat letter itself:
As always, a great rule of thumb applies here: if someone accuses another person of defamation without pointing out a single specific thing that is supposedly defamatory, it's a bullying attempt and should likely be ignored. This case appears to be no different. With all that O'Leary has said about the film and its producers, and with all that she's posted that includes responses to specific things Bigtree and Tommey have said and claimed, to fail to cite even one defamatory instance should tell you everything you need to know.
It seems that this video response in particular is what likely caused the threat to be sent. In it, O'Leary details how the two producers have compared autistic children to monkeys and dogs, threatened government officials, and even declared that firearms should be used to keep children from being vaccinated.
And now that the threat letter has been sent and then shared by O'Leary with her followers, and now that the press is picking it up, all of those comments are being shared even more widely than they would have been otherwise. It seems the Streisand Effect is taking the deplorable comments of these anti-vaxxers viral, because the universe does not lack a sense of irony.
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Posted on Techdirt - 22 July 2016 @ 10:44am
It seems the USOC is just getting started with its bullying bullshit this Olympic season. Fresh off the heels of threatening Oiselle, a corporate sponsor of an Olympic athlete (but not a sponsor of the Olympics themselves), over trademark concerns because the company posted a congratulatory tweet for its sponsored athlete that included the Olympic bib she was wearing, the USOC is now sending out a helpful little reminder to other companies that have sponsored athletes but not the games. And by helpful, I mean that it's helpful in seeing just how blatantly the USOC will outright lie in order to continue its bullying ways.
ESPN got its hands on the letter the USOC sent around.
"Commercial entities may not post about the Trials or Games on their corporate social media accounts," reads the letter written by USOC chief marketing officer Lisa Baird. "This restriction includes the use of USOC's trademarks in hashtags such as #Rio2016 or #TeamUSA."
It's the kind of blanket statement that the USOC likes to make, even as it avoids any of the pesky nuance that might call its claims into question. Certainly, as part of trademark law, a company's Twitter account could not claim to be an Olympic sponsor, or attempt to confuse followers into thinking it had some kind of affiliation. And this might translate into that company not including trademarked hashtags themselves. But what about retweets? What about posts that mention the sponsored athlete but not the hashtags? What about informing followers of the success of the athletes the company sponsors?
Well, for that last one at least, the USOC has boldly claimed it owns the rights to facts.
The letter further stipulates that a company whose primary mission is not media-related cannot reference any Olympic results, cannot share or repost anything from the official Olympic account and cannot use any pictures taken at the Olympics.
Yeah, that's not actually true. Like, at all. As we've pointed out in the past, several times, there is no applicable part of trademark law that applies to facts, such as the factual results or stats of a sporting event. And there's no line in the sand to draw between the average Twitter user and a corporate Twitter account when it comes to this, meaning that corporate sponsors of athletes are absolutely free to mention the results of their sponsored athletes at the Olympic Games or trials. Beyond that blatant lie, claiming that a company's account can't retweet an Olympic account misunderstands the very nature of social media (make your damn account private then!), while blanket claims about what types of pictures of the games can be used completely ignores any Fair Use arguments that could be made, of which there are many.
But this is SOP for the USOC, even as they further lie about the necessity for all of this bullying.
While the USOC argues that money from sponsors and licensees who pay for the rights allow them to support athletes to go to the Games, Bergesen says the stringent rules hurt the athletes because companies that can't support them during the Games can't afford to pay them because of lack of promotion.
"It costs $300,000 to send an Olympian to the Games, and for our athletes, the USOC has reimbursed them about 1 percent of that cost," Bergesen said. "Is that supporting them?"
Well, no, but of course that isn't the point of the Olympics, which long ago transitioned into a money-making machine rather than any kind of international sporting competition. The corruption is so bad, few countries even want to bid to host them anymore. But, sure, keep focusing on corporate sponsors that want to congratulate their athletes, as though that was the problem.
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Posted on Techdirt - 21 July 2016 @ 11:20pm
With all the trademark actions we've seen taken these past few years that have revolved around the craft beer and distilling industries, it seems like some of the other folks in the mass media are finally picking up on what I've been saying for at least three years: the trademark apocalypse is coming for the liquor industries. It's sort of a strange study in how an industry can evolve, starting as something artisan built on friendly competition and morphing into exactly the kind of legal-heavy, protectionist profit-beast that seems like the very antithesis of the craft brewing concept. And it should also be instructive as to how trademark law, something of the darling of intellectual properties in its intent if not application, can quickly become a major speed bump for what is an otherwise quickly growing market.
All of this appears to have caught the eye of Sara Randazzo, blogging at the Wall Street Journal, who notes that the creatively-named craft beers that have been spewing out of microbreweries across the country may be running out of those creative names.
As today’s Wall Street Journal explores, legal disputes in the beer world are becoming the norm as new craft breweries spring up at a rate of roughly two per day. Trademark lawyers have gotten so used to the beer disputes that they are now turning on each other. Some dozen lawyers are contesting San Diego lawyer Candace Moon’s attempt to trademark the term “Craft Beer Attorney,” which she says she rightfully deserves.
Within the rest of the post, Randazzo highlights one dispute between craft brewers in order to give a sense of just how small these belligerent parties are. It's a dispute that escaped even my radar, despite what has become something of my "beat" around Techdirt. Three professionals with day jobs decided to make a go at brewing craft beer and named their company Black Ops Brewing, the pun resting upon "hops" used in their beer, while also serving as a nod to their family members that served in the military. Three guys making beer, but the trademark dispute came almost immediately.
Within months of launching, Mr. Broussard and his partners heard from Brooklyn Brewery clear across the country. The message: They needed to stop using the name Black Ops Brewing, because the New York brewery already had a beer named Brooklyn Black Ops.
Three months of litigation and one preliminary injunction later, and the Fresno business is now called Tactical Ops Brewing Inc. “They probably spent four to five times what our company is worth in legal fees,” fellow co-founder Justin Campagne said.
Now, we could spend some time analyzing whether or not there would be any real customer confusion to consider between the two names, whether the two companies were operating in the same market, or whether Brooklyn Black Ops had to initiate all of this in order to retain its trademark. Those would be worthy discussions to have, but there is a more fundemental question: is trademark law in this instance doing more to help or hurt the craft brewery industry?
It's not a simple question to answer in the present, though I do think the trend of increased trademark actions in the industry should tell us something important. As the industry becomes more crowded, trademarks are serving as a method to push out new players, or at least making entry into the market more difficult. After all, there are only so many hop-puns specifically, and creative ways to name a specific brew more generally. With new craft breweries springing up every day and those breweries each pushing out multiple different brews, at some point we'll get to a place where there are so many breweries producing so many brews with so many names that having a trademark on all of them could render the entire industry in trademark molasses, with legal actions all over the place and nobody knowing for sure whether just putting out a new product will result in crippling lawsuits.
Whatever trademark should be, it should certainly not slow down burgeoning and explosive industries. It's becoming quite clear that craft brewing has a trademark problem.
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Posted on Techdirt - 20 July 2016 @ 10:23pm
We talk a lot about silly trademark disputes here at Techdirt. But the really infuriating trademark stories tend to deal with not just overly broad terms that have been granted marks by the USPTO, but terms that are so broad because they are simple geographic identifiers. The other aspect of trademark disputes that can be face-palm inducing are claims of confusion that are laughable in the extreme. The dispute we're about to discuss mixes both of these, supercharging the frustration to dangerous levels.
Schnebly Redland runs a winery in Homestead, Florida, some forty miles south of Miami. Part of the Schnebly Redland Winery's business includes a brewery, called the Miami Brewing Company. Despite the already broad nature of that brewery's name, it has a trademark in place for its business. In Doral, Florida, some fifteen miles away from Miami, is M.I.A. Beer Company. While both companies have existed cordially together for more than a year, Schnebly recently fired off a cease and desist notice to M.I.A. over trademark concerns, demanding that the latter cease using its name within thirty days and to provide records, within two weeks, of any and all profits it had made.
If Leon didn't comply, the letter states, he'd be "liable for compensatory damages" and "ill-gotten gains," as well as court costs and attorneys' fees. According to Leon, the document came just days before M.I.A.'s anniversary party and was a complete surprise. Both Leon and Peter Schnebly served on the board of the Miami Brewers Alliance, and Leon considered him a friend. Three years earlier, Leon says, Schnebly alluded to potential problems with the similarity of the names and both had a gentlemen's agreement, trusting they wouldn't interfere with each other's business.
"Quite honestly, it felt like a big stab in the back," Leon says. "I'm like, really? It was pretty shocking."
And seemingly dumb, too. The trademark protections offered for the use of a geographic identifier, such as "Miami", are far more thin than a more creatively inspired trademark would be. Thin enough that it strains the mind to think that confusion could be winningly alleged between the terms "Miami Brewing Company" and "M.I.A. Beer Company", even before we get into the many potential meanings of the latter's acronym.
Leon immediately called Schnebly, who said the likeness of the names is too confusing for customers. Leon disagreed because "M.I.A." could mean any number of things, such as "missing in action" or Miami International Airport.
Indeed. In fact, while MIA is a common shortening for the city of Miami in certain circles, such as on score overlays for sports broadcasts, the acronym M.I.A. is probably more commonly associated with "missing in action" than it is anything else. Even with the proximity to Miami likely being a factor in the name, for a trademark based so heavily on a geographic area, it seems likely that the differences between M.I.A. Beer company and Miami Brewing Company would be enough to ward off the claims. The packaging and logos for each company, it should be noted, are distinct and not at all similar, making customer confusion a non-issue.
Yet Leon must certainly be extra annoyed by all of this, having gone through this kind of trademark tussle once before.
Leon became somewhat of a trademark expert when he started M.I.A. Brewing — originally called Most Wanted Brewery. He changed the name after discovering that Kansas City-based High Plains Distillery makes a Most Wanted vodka that could've caused a potential conflict.
Such is the state of things in the craft brewing world, unfortunately.
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Posted on Techdirt - 20 July 2016 @ 8:33am
Search through all of our stories about the supposed link between violent movies and games and real world violence by those that enjoy them, and you should come away with the impression that, at the very least, the science isn't settled on the issue. The more specific impression you should get is that violent media might -- might -- have a short-term impact on behavior, but that there isn't anything like a general agreement on the long term effects, which is obviously the vastly more important question.
Yet the American Academy of Pediatrics just released a policy statement on "virtual violence" that recommends legislative action due to a "broad scientific consensus" that violent media increases aggression in children.
Although there is broad scientific consensus that virtual violence increases aggressive thoughts, feelings, and behaviors, there has been little public action to help mitigate children’s exposure to it.
As a policy position, the statement goes on to recommend federal control over media ratings and a policy of reduced screen time to be prescribed to parents by pediatricians. We could spend all kinds of time arguing over whether those recommendations are good, bad, or somewhere in between. Instead, let's go ahead and expose the whopper of a false premise that is the so-called broad consensus on the effects of violent media.
Christopher Ferguson, a Psychology professor, wrote at HuffPo about how silly the claim is.
First, the AAP presents the results on media violence as if they were consistent. They argue that “hundreds” of studies show that “…the linkage between virtual violence and aggression has been well supported and is robust.” But this claim is easily contradictedby a whole host of studies that find no effect for media violence on aggression. Other studies have examined links between media violence consumption and societalviolence and found that media violence is, if anything, associated with reduced societal violence. This is not to say evidence is consistent against effects either. Some studiesdo find some evidence for media effects (although typically small and usually for minor behaviors) yet others do not. Claiming consistency in either directly merely discredits the claimant as a credible source of information.
This claim also ignores increasing controversies about media effects’ role in psychology’s replication crisis. Scholars have identified “questionable researcher practices” in this realm, and have had difficulty replicating old studies, and studies using preregistered designs (where scholars publish their methodology in advance of collecting data, making it harder for them to monkey with analyses to get the results they want), generally found little evidence for effects.
He goes on to note that, despite the AAP's claim of broad consensus on the topic, the policy paper cited very few studies to back this claim. Those it did cite, of course, agreed with its position. But ignoring the multitude of studies that don't is. in itself, a form of citation bias, particularly given that the paper's two chief cited sources cited are generally considered controversial on the topic of media violence. Included in the post is a wonderful graph going back twenty years showing that as violent media consumption by youths has gone up, youth violence reports have gone in the opposite direction. It would be hard to square that graph with the AAP's claim, never mind with its claim of broad consensus on the topic.
But this is more than a mistake. The AAP should know better than this, and does.
The AAP claims the presence of a consensus of scholars and practitioners regarding media effects. However, most surveys of scholars and clinicians reveals this to be false. Depending on how questions are asked, surveys indicate that only 10% to 58% of scholars agree some kind of links may exist. Higher numbers are found when undefined “aggression” is used in queries (which could involve fairly minor laboratory tasks like filling in the missing letters of words...”kill” being more aggressive than “kiss” for instance in response to ki__), and drop significantly once questions ask about youth assaults or other significant behaviors. All surveys indicate significant disagreements among experts, with only a minority worried about media effects on violent behavior. Indeed, past claims of consensus have been thoroughly discredited.
Further, a group of 230 scholars, back in 2013, wrote an open letter advising against policy statements on media effects just like this one. That letter was written to the American Psychological Association (APA), but the same principle holds here. How does the AAP pretend this large group of 230 scholars don’t exist?
Combined with a later section of the paper, which laughably misreads a Supreme Court decision from 2011 as rejecting federal oversight on violent media consumption by children on First Amendment grounds when the court actually stated that lower courts have found the claim of a link between media and violence to be meritless, one wonders exactly what the motive is for all of this by the AAP. You have to blink before believing the AAP's recommendation that journalists not talk to "contrarian researchers" who don't see things its way. It's hard to think of a less scientific recommendation than censoring contradictory studies.
But more worrisome, the AAP appear to pressure journalists not to speak to anyone, including “contrarian scholars” who disagrees with their position. This arguably puts the AAP in the bizarre and aggressive position of, in effect, arguing for scientific censorship (whether or not this was their intent). They chide news media for presenting “both sides” of the debate (despite the presence of scientific evidence for both sides and the fact that most researchers do not agree violent media poses a serious risk to society) and offer as a recommendation “The news and information media should acknowledge the proven scientific connection between virtual violence and real-world aggression…”
The point of all of this isn't to fight over the link the AAP suggests. The point is that a policy paper built on a demonstrably false premise that then attempts to silence the work of opposing research isn't a prescription for good scientific output.
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Posted on Techdirt - 19 July 2016 @ 10:23pm
If you'll recall, early on this year we wrote about the very strange story in which the at-the-time scouting director for the St. Louis Cardinals, Chris Correa, used the old passwords of a former employee who had since taken a job with the Houston Astros to break into the opposing team's scouting database. The actions were fairly brazen, leading many to wonder how in the world Correa thought he was going to get away with this. The government charged him under the CFAA, to which Correa pleaded guilty. At the time, I concluded the post guessing that Correa, given his standing and the fact that he isn't named Aaron Swartz, would get off with minimal if any jail time.
Well, when you're wrong, you're wrong. While Correa didn't get anything like the half-a-century jail time that the feds had threatened Swartz with, he is getting nearly four years worth of jail time, which is much more than I had expected.
Chris Correa, the former St. Louis Cardinals scouting director who illegally accessed the Houston Astros database known as Ground Control, was sentenced to 46 months in prison today in Houston federal court.
Correa, who was fired by the Cardinals in July 2015, pleaded guilty in January to five counts of unauthorized access of a computer. According to prosecutors, Correa used an old password of a former Cardinals employee, who took a job with the Astros, to log into Ground Control and download the Astros’ scouting reports, information on possible MLB draftees, and other notes. Correa has also been assessed a fine of $279,038. Prosecutors valued the damage done to the Astros from his actions at $1.7 million.
Without wanting to dance on another human being's jail sentence, I will say there is something slightly satisfying in seeing this case conclude with real jail time, as opposed to some kind of slap on the wrist. It does nothing to soften the still gaping wounds stemming from the Swartz tragedy, of course. Still, so much of the time we see laws like the CFAA applied in the most haphazard way, whereas this was about as perfect an application for it as I can think of.
Somehow the rest of the Cardinals organization has skated by unscathed. The Cardinal Way and all that, I guess.
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Posted on Techdirt - 18 July 2016 @ 2:26pm
Fresh off the news that Mike Huckabee finally settled the copyright infringement suit over his use of a Survivor song at his Kim Davis rally, we have now learned that the campaign for Ted Cruz has apparently also had an issue with properly licensing music for its campaign. There's a degree or two of separation here to be aware of, with the Cruz campaign having hired an ad agency to handle its digital advertising, and with that ad agency apparently flouting the licensing rules of the music it acquired with pretty stunning abandon. Still, while accusations of infringement by musicians against politicians so rarely are simple cases of infringement, instead fraught with politics, this one, as Eric Goldman notes, appears to be pretty straightfoward.
Senator Ted Cruz’s presidential campaign allegedly hit the copyright infringement bullseye. (All of the following facts are allegations from the complaint, but the defendants’ motion to dismiss doesn’t challenge any of them). The Cruz campaign’s ad agency, Madison McQueen, downloaded two songs from Audiosocket, which I would categorize as a stock music agency. The songs are “Lens” by Sarah Schachner and “Fear of Complacency” by Brad Couture. In each case, the ad agency agreed to Audiosocket’s standard Small Business License Agreement, which prohibited any use “for political purposes” and included a $25k liquidated damages clause. Audiosocket attached unique IDs to its downloads that fingers the ad agency as the downloader of these songs.
Despite the license restrictions, the campaign used both songs in promotional material. Lens was used in the “Victories” video (apparently offline), viewed 78,000 times on YouTube. After the campaign was told that its use was unauthorized, the campaign nevertheless broadcast the video 86 times on Fox Business News (if criminal copyright infringement were being prosecuted, which it won’t be because the DOJ would never go after a sitting Senator for such things, would this fact provide the necessary willfulness?). Fear of Complacency was used in the “Best to Come” video, viewed 12,000 times on YouTube.
It's typical for these types of complaints to be layered in nuance and interpretation, with a dash of one side or the other misunderstanding how licensing, copyright, and the rights that surround public performances work. This does not appear to be one of those cases, as the agreement Madison McQueen agreed to is fairly straightforward and specifically forbids the exact use for which the music was incorporated. As Goldman notes, whereas most campaigns would simply apologize and pay to have all of this go away, the Cruz campaign instead offered up a motion to dismiss. That motion didn't rebut any of the allegations. Instead, Cruz's lawyers argued that the musicians had only applied for copyright registrations and had yet to have that process completed, that it's unclear how many times it should be said that the campaign infringed on the copyrights for the songs, that Audiosocket can't stack its copyright complaint alongside its breach of contract complaint, and that all of this is a moot point because -- not making this up -- Cruz lost and gave up on his candidacy.
The court, predictably, denied every argument in the campaign's motion to dismiss. Which means it's settlement time.
Now that the plaintiffs survived the motion to dismiss, I’d expect the parties to revisit a settlement. The sticking point may be computing damages, especially the liquidated damages where the parties may disagree about how many times the license was breached. If Audiosocket accepts $25k per song, it should take $50k or less to buy them out–easily doable (especially if he still has $9M cash on hand). Audiosocket says it’s not claiming each of the 90k+ streams count as individual breaches (which would lead to over $2B of liquidated damages), but I’m not sure what their compromise position will be, so it’s hard to guess how far apart they really are.
To me, the most interesting unresolved question is how this lawsuit and failed motion to dismiss will change any of Sen. Cruz’s positions about copyright law. I’m not familiar with his IP platform, but he now has a first-hand brush with copyright infringement that ought to make him more empathetic towards other well-meaning and honest Americans who find themselves unwittingly staring down the barrel of a copyright infringement shotgun. Unfortunately, if past politicians’ response to being accused of IP infringement is any guide, the chances of Sen. Cruz becoming a champion of user rights are remote.
The more interesting question to my mind is exactly how all of this would play out if Senator Ted Cruz was instead local mailman Ted Cruz, without the legal team and political cache that he enjoys to back him up? We talk a great deal around here about citizens who are engulfed in questionable copyright actions, yet here is a Senator who will be able to pay some sum of money that he has at his ready to make all of this go away.
You would hope that this would lead to some kind of empathy in the halls of government, but naaaaaaah.
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Posted on Techdirt - 15 July 2016 @ 7:39pm
It's Olympics season again. What is normally an expose of how the IOC and the USOC become the biggest IP bullies on the block has had a little spice added to it this year in the form of a host country that by all reports is woefully unprepared for its duties while simultaneously being rocked by a pest-spread disease with the delightful symptom of shrinking the brains of fetuses. And if that doesn't make you believe that some combination of a god and/or the universe wants the Olympics to cease to be, perhaps the fact that the whole fiasco will be broadcast by NBC will.
Yes, running in parallel with our posts about IOC bullying, you will find a history of posts about NBC's strange attempts to turn back the clock on its broadcast of the games. Historically, this has meant limiting the live streaming of most of the events, making it as difficult to find and watch any event as possible, and delaying all kinds of event broadcasts until NBC deems that the public wants to watch them. But have heart, dear friends, for the NBC overlords have listened and have declared that these Rio Olympics will be the "most live Olympics ever."
For Rio 2016, NBC says this will be its "most live Olympics ever" with 4,500 hours of coverage streaming on NBCOlympics.com and the recently renamed NBC Sports app. Also new this time around is that the NBC Sports app is on connected TV devices (it launched on Roku and Apple TV last year), not just mobile.
Now, I'll just go ahead and note here that while NBC has been very busy patting itself on the back for how much more live coverage there will be of the Olympics in Rio compared with previous broadcasts, the fact that there is a time difference of exactly one hour between East Coast time and Brazil means that all the live coverage is probably just happenstance rather than any concerted effort by NBC. But, hey, the company has still gotten the message that live coverage only makes sense in a hyper-connected world where view-on-demand can be achieved by the devices we carry around in our pockets at work and while in transit, right?
Sure! Except for the opening ceremony, because you idiots aren't smart enough to be able to watch that live.
The Rio Olympics formally begin August 5th with the opening ceremony from the Maracanã stadium. Proceedings start at 7 p.m. Eastern Time, only you won’t be able to watch them on NBC until at least an hour later. At a press conference yesterday, NBC execs announced plans to broadcast the ceremony at 8 p.m. Eastern Time and 7 p.m. Central Time, each on one hour delays, and at 7 p.m. Mountain Time and 8 p.m. Pacific Time, on two and four-hour delays respectively.
So why the need for anywhere between a one and four our delay to watch the opening ceremony? Two reasons. First, forget all of that hyperconnectivity thing we just talked about, this shit has to only air during prime time. Also, without post-production and planned narration of the ceremony, you viewers won't get all of the great story lines NBC wants to feed you.
By doing a short tape-delay of one hour, it allows us to put it in a time period when more people are home to watch, because it is a Friday night and they get out of their commute or home from wherever they are. And it allows us to curate it with the narrative and storytelling of our announcers to explain what’s going on. And it allows us to put in commercials without cutting out large chunks of the show.
Also, the opening ceremony is really for all of the penis-less viewers out there. And we all know how the ladies don't really like sports but do like their soap operas, amirite?
The people who watch the Olympics are not particularly sports fans. More women watch the Games than men, and for the women, they’re less interested in the result and more interested in the journey. It’s sort of like the ultimate reality show and mini-series wrapped into one. And to tell the truth, it has been the complaint of a few sports writers. It has not been the complaint of the vast viewing public.
Now, to the point about the prime time coverage. Look, hyperconnected or not, it is certainly true that many adults only have certain hours of the day to which they can dedicate some couch-time and watch a bunch of people from a bunch of countries walk around in a circle for a while. But that doesn't mean NBC couldn't also stream the ceremony live for those that want it live. The commentary might be pared down and perhaps we wouldn't get all of the juicy narrative NBC wants to inject for lady viewers, who we all know universally hate sports and all that, but there is value to live coverage that many people want. It's not just a small number of sports writers.
As for that context it claims it needs to inject, that's not the whole story. What the delay really allows NBC to do is inject commercials wherever it wants without omitting any countries from the ceremony while also being able to cut out any undesirable content (i.e. political content) that shows up in the ceremony.
NBC has an incentive to air the ceremony live, but by delaying, they are sacrificing the chance to be first so they can tailor the coverage, cut out any shenanigans, and pick the best places to cut away to commercial. And, of course, cut anything controversial. As Gary Zenkel, NBCSG’s president, pointed out, it’s a show, not a competition.
Which, fine, if NBC wants to act as the speech filter for its viewers, so be it. But who is going to be surprised when NBC also screams bloody murder at people seeing results, highlights, and even coverage of the opening ceremony that will be available on other streams from other nations' broadcasts, on Twitter and Facebook and the like? NBC can't seriously delay its coverage and get mad when all the customers whose demands it ignores move on to other options.
But that's exactly what will happen. We've been here before, after all. And no matter how "live" these Olympics are this go-round, delaying the broadcast and stream of the opening ceremony leads me to believe I know exactly how it will go this time too.
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Posted on Techdirt - 15 July 2016 @ 6:15pm
In these past few weeks, the world has become divided into two camps: those who are sick of hearing anything about Nintendo's new smash mobile hit, Pokemon Go, and those who can't get enough of it. While the media tags along for the ride and with the app shooting up the charts as the craze takes hold, it's worth keeping in mind that this is Pokemon and Nintendo we're talking about, two connected groups with a crazy history of savagely protecting anything to do with their intellectual property.
Still, it was strange to learn that Nintendo is issuing all kinds of takedown requests to "pirate" versions of the Android app that are available roughly all over the place. The reason I wrapped that word in quotation marks above is that the Pokemon Go app is entirely free and even the unofficial versions of the app still point the user back to the app's official store for any in-game purchases.
Nintendo is obviously not happy with this black market distribution. Although it doesn’t seem to hurt its stock value, the company is targeting the piracy issue behind the scenes. TorrentFreak spotted several takedown requests on behalf of Nintendo that were sent to Google Blogspot and Google Search this week. The notices list various links to pirated copies of the game, asking Google to remove them.
Thus far the efforts have done little to stop the distribution. The files are still widely shared on torrent sites and various direct download services. The copies on APKmirror.com remain online as well.
So why is Nintendo engaging in a losing war against its own popularity instead of deciding to spend the time counting the money that is streaming in from its smash hit instead? Well, the speculation is that this has all to do with the geographic release windows for the app.
With no commercial gain to be had from stopping people playing the game, I’m guessing Nintendo is just trying to keep it in the hands of users in countries where Pokémon Go has been officially released. Maybe to cut back on stuff like the problems some Korean gamers are having right now.
The issue appears to be that the game doesn't really function in countries where it hasn't been officially released yet. This means that users of the unofficial apps in these countries are likely to find that no Pokemon exist to be collected, or are at least far more sparse than they will be once the release is official in that country. This has led to some minor frustration from those who downloaded the app from an unofficial source, as they wander around doing essentially nothing.
But so what? That isn't really Nintendo's problem and there's no way that the company will take on any ill-will from those downloading unofficial copies of the game where it hasn't been released yet. The app, keep in mind, is a free one and points to Nintendo's in-game store for purchases whether it's from the official app or the unofficial one. There's literally no money lost in this in any way and, it can easily be argued, the widespread availability from many different sites may well be super-charging the viral nature of the product. That should be a huge win for Nintendo, as the company gains new and free distribution channels at zero cost.
If this is about the geo-restricted release dates, I sort of get it, but I only sort of get it because I already know how crazy-insane Nintendo is in terms of controlling every last aspect of every last product it offers. The company just can't help itself, even when it can be argued the "pirated" apps are doing way more good than harm.
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Posted on Techdirt - 12 July 2016 @ 9:37pm
Fake news and hoax news stories are annoying, to be sure. I've been fooled a few times by hoax stories, as I imagine most other folks who do what we do have been. And, while the strategies taken by folks like Facebook haven't resulted in ending the scourge of fake news, I can understand the intent. There are probably better strategies out there, though they are harder to achieve. Strategies like educating the public on how to verify internet stories they see. Or instilling in people a healthy amount of skepticism starting at a young age so that they don't fall victim to every hoax out there. Or just sending around Snopes.com to all of our family members and demanding that they run any outrage through that filter first before bringing it to the dinner table.
The point is that there are good ways to combat fake news. Here with an example of a terrible way to do so is China, which is happily riding the annoyance at hoax news to the happy conclusion of further centralizing control of the internet through its government.
China’s powerful internet censorship body has further tightened its grip on online news reports by warning all news or social network websites against publishing news without proper verification, state media reports. The instruction, issued by the Cyberspace Administration of China, came only a few days after Xu Lin, formerly the deputy head of the organisation, replaced his boss, Lu Wei, as the top gatekeeper of Chinese internet affairs. The central internet censorship organ ordered its regional subordinates to fully fulfil their duties on the basis of content management, strengthen supervision and inspection, and severely punish fake news or news that deviated from the facts.
“All websites should bear the key responsibility to further streamline the course of reporting and publishing of news, and set up a sound internal monitoring mechanism among all mobile news portals [and the social media chat websites] Weibo or WeChat,” Xinhua reported the directive as saying. “It is forbidden to use hearsay to create news or use conjecture and imagination to distort the facts,” it said.
The facts as the Chinese government sees them, it should be said. And that's really the point of all of this. This isn't about hoax news stories; it's about the reporting of anything at all that would embarrass the Chinese government. This kind of censorship funnel would be horrific under any scenario and under any governing body, but given that the Chinese government lost its collective mind and went censor-crazy just because Lady Gaga met with the Dalai Lama, this law is like giving a life-eraser to an eight-year-old with a bad attitude.
In addition to the censorship by government clearly embedded in this new law, so too is there an attempt to chill anyone from actually speaking to reporters within the country.
“No website is allowed to report public news without specifying the sources, or report news that quotes untrue origins,” the circular warned, adding that the fabrication of news or distortion of the facts were also strictly prohibited.
And, just like that, you chill the water for anyone that might talk to a reporter, because that reporter is required to name his or her sources. It's a subtle bit of tyranny that's impressive for a government typically more ham-fisted than that.
Oh, and you'll never guess what excuse the Chinese government is trotting out to excuse this kind of massive censorship.
Officials say internet restrictions, including the blocking of popular foreign websites such as Google and Facebook, are needed to ensure security in the face of rising threats, such as terrorism, and also to stop the spread of damaging rumours.
Terrorism...and the spread of damaging rumors. I can assure you this law has only to do with one of those threats, and it isn't terrorism, and it isn't "rumors" the Chinese government is worried about.
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Posted on Techdirt - 12 July 2016 @ 2:17pm
All I have to do is say that this is a story that involves the Olympics and you probably already know exactly what kind of story this is going to be. That's because we here at Techdirt have posts going back years that detail how the IOC and the USOC go about bullying, threatening, berating and downright pestering anyone it can over even the slightest of intellectual property concerns. The fact that these international games come around every two years now, instead of four, only means this bullying occurs now in near perpetuity instead of at a pace of a half-a-decade staccato.
So, with the Rio Olympics right around the zika-infested, super-bacteria-in-the-water corner, it's time to start relaying the most predictable news possible: the USOC are still bullying people over laughably slight trademark concerns. Though I will credit the USOC this much: they're finding new and inventive ways to come off as petty and money-grubbing as possible. The link above details the USOC's demands that Oiselle, an athletic apparel company that sponsors Olympic athlete Kate Grace, take down the following Instagram posts.
The USOC said these posts were trademark violations and that Oiselle was using them to confuse the public into thinking it was sponsoring the Olympics. Now, Kate Grace is sponsored as an athlete by Oiselle. The posts above appear to be a runner's sponsor alerting its followers at the accomplishment of one of its athletes. You know, exactly the kind of thing that a corporate sponsor should be expected to do. So, are you confused as to what any of the above has to do with the USOC's claim that Oiselle is trying to trade off of the trademarks of the Olympics?
Sally Bergesen, CEO of Oiselle, told the Orange County Register that she received an email from the U.S. Olympic Committee informing her that the posts violated USOC trademark guidelines, requesting that Oiselle to take down all images of Grace and other Oiselle athletes competing at the Trials. The USOC official, Carol Gross, asked that Oiselle stop all “Olympic-related advertising” and take down images by “close of business” Wednesday, July 6.
“This is about USOC’s intellectual property, ownership of the terms Rio, Road To Rio, the rings—all of the branding they use,” Bergesen said by phone. “By using the caption ‘She’s heading to Rio’ and showing the branding [#RoadToRio, Olympic rings] on her bib, which is ironed onto her Oiselle top, they’re saying it’s akin to creating advertising, that we’re making it look like we’re part of Team USA and doing Olympic advertising. They’re saying that our reporting is advertising; we differ with that.”
Yes, because the USOC has managed to get all kinds of generic trademarks on words and locations that have no business being trademarked at all, and because the athlete was wearing a bib while competing that showed some valid IOC trademarks, suddenly the image and caption can't be put on social media. Does anyone actually look at that picture and caption and immediately conclude that Oiselle is an Olympic sponsor? Even the hashtags, a brand new insane place for people to fight over trademark concerns, don't conjure up an association with the olympics.
But here's where we can see the USOC's intentions laid bare. Keep in mind that Kate Grace is sponsored by Oiselle, just not for the Olympics. Instead, she's a sponsored athlete for all of her non-Olympic competition and training. Meaning that Oiselle is part of what got Kate Grace to the Olympics, but now that company can't even tweet out a picture of her success.
Bergesen says she understands the USOC’s position with regard to maintaining the value of trademarks, but takes issue with the fact that the neither the USOC nor its major corporate sponsors support athletes’ training, nor pay athletes for competing at the Olympics, but make vast sums from the event. “It comes down to how the money is spent,” she said. “I would be somewhat okay [with non-USOC rmarketing restrictions] if some of the money were getting to athletes. But the reality is, if it were not for small private entities who actually support athletes, you’d have a beautifully branded stadium with no athletes in it.”
Filled with all the branding in the world and nobody there to take pictures of it all and tweet them out, because the athletes are actually supported by the very people unable to congratulate them on social media. Gold medal for asshole-ery goes to the USOC.
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Posted on Techdirt - 12 July 2016 @ 3:25am
For some reason, gamemaker Blizzard has been totally smitten with the idea of twisting copyright law into an ugly pretzel to sue anyone who makes a hack or cheat for one of its games for some time now. They did this concerning Starcraft, then World of Warcraft, and then Starcraft 2. This lawsuit tactic is starting to become something of a right of passage for Blizzard's games, but the tactic in question makes little sense. Blizzard's argument can be roughly translated as: cheats and hacks break the EULA for the game, the game is licensed by the EULA instead of being owned by anyone paying for it, the game does regular copying of code and files while in use, therefore a hack or cheat that breaks the EULA renders all of that routine copying as copyright infringement. While this wrenching of copyright into these kinds of lawsuits has nothing to do with the actual purpose or general application of copyright law, many cheer these moves on, because cheaters within the communal games we play are annoying.
But the ends don't justify the means, and this kind of twisting of copyright law is dangerous, as we've pointed out in the past. Not that that's stopped Blizzard from utilizing this tactic, of course. In fact, recent Blizzard success Overwatch has become the latest to achieve this right of passage.
While most Overwatch players stick to the rules, there’s also a small group that tries to game the system. By using cheats such as the Watchover Tyrant, they play with an advantage over regular users. Blizzard is not happy with the Overwatch cheat and has filed a lawsuit against the German maker, Bossland GMBH, at a federal court in California. Bossland also sellscheats for various other titles such as World of Warcraft, Diablo 3 and Heroes of the Storm, which are mentioned in the complaint as well.
The game developer accuses the cheat maker of various forms of copyright infringement, unfair competition, and violating the DMCA’s anti-circumvention provision. According to Blizzard these bots and cheats also cause millions of dollars in lost sales, as they ruin the games for many legitimate players.
And it might indeed be true that these cheat hacks piss off some Overwatch gamers and might even drive some of them away from the game, costing Blizzard revenue. But, and I cannot stress this enough, that doesn't suddenly make any of this copyright infringement. To see what lengths Blizzard's legal team is going to in order to twist this all together, one need look only at the claims the filing makes.
First, it claims that Bossland is committing contributory infringement by offering the hack, because the hack breaks the EULA, which makes accessing the game suddenly fraudulent, and all the routine copying the game does becomes copyright infringement. This, again, relies on the idea that the game is licensed rather than bought, and that breaking the EULA renders the license invalid. This has never been the way copyright has worked in the past.
Second, the filing claims that the hack's ability to provide a graphical overlay over the regular game is the creation of a derivative work, which is also copyright infringement. Except the overlay isn't copying any part of the game, nor is it making works expanding on the game. It's just an overlay, or a HUD.
Only then does the filing accuse Bossland of contractual interference, which is probably the most sound charge in the whole thing. Even then, hacks and cheats have long been a staple of the video game ecosystem, with most gamemakers embracing modding communities, and even embedding cheats within their own games. This has changed somewhat with the rise of online multiplayer games, where these kinds of cheats break the game in some ways, but still, entering into a legal challenge over all of this instead of jumping back into the fray of game development to try to keep the cheaters out seems strange.
And filing all of this in a California court has pretty much everyone, including the folks at Bossland, scratching their heads.
TF spoke with Bossland CEO Zwetan Letschew, who informed us that his company hasn’t received the complaint at its office yet. However, they are no stranger to Blizzard’s legal actions.
“There are over 10 ongoing legal battles in Germany already,” Letschew says, noting that it’s strange that Blizzard decided to take action in the US after all these years. “Now Blizzard wants to try it in the US too. One could ask himself, why now and not back in 2011. Why did Rod Rigole [Blizzard Deputy General Counsel] even bother to fly to Munich and drive with two other lawyers 380 km to Zwickau. Why not just sue us in the US five years ago?”
While Letschew still isn’t convinced that the lawsuit is even real, he doesn’t fear any legal action in the U.S. According to the CEO, a California court has no jurisdiction over his company, as it has no ties with the United States.
It should be noted that much of the time these legal attempts by Blizzard don't result in wins for its legal team. And that's not even taking into account the questions of jurisdiction and/or what a California court ruling will result in for a company abroad. I'm a little lost as to why Blizzard is even bothering with this, to be honest.
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Posted on Techdirt - 11 July 2016 @ 3:54pm
One of the stranger stories from the past year or so in the social media space was the saga of Politwoops, the service that archives politicians' and public officials' tweets that have since been deleted. Politwoops had operated for a time before Twitter killed it off, claiming it violated its ToS. Twitter also claimed that the reason it had ended Politwoops' ability to operate was to protect the privacy of its users, including the public officials that were the target of Politwoops. Then Twitter suddenly allowed Politwoops to make its return, saying:
“We need to make sure we are serving all these organizations and developers in the best way, because that is what will make Twitter great. We need to listen, we need to learn, and we need to have this conversation with you. We want to start that today.”
Basically, while Twitter still insists it's all about protecting the privacy of users of its service, it has now carved out a special place for public officials and aspiring politicians in which the archiving of deleted tweets is acceptable. It's a strange kind of reverse case in which being a notable public official suddenly affords less privilege, rather than more. And, while it's great that Politwoops has returned, the move left everyone uncertain as to exactly how Twitter would apply its user-privacy standard moving forward.
Perhaps now things are a bit more clear, however, as a similar service, PostGhost, has now been shut down over the same ToS issues and user privacy excuses that initially doomed Politwoops.
PostGhost, which had just launched this week, kept copies of tweets sent by verified users with more than 10,000 followers. In Twitter's letter, posted by PostGhost, the company said that recording deleted tweets was a violation of the service's terms. PostGhost agreed to comply and shut down, but in a lengthy response, argued that such users are "public figures" that should have their tweets recorded.
"We believe that for such prominent verified Twitter users, the public has a right to see their public Twitter history, whether or not they grow to regret the statements they've made," PostGhost's statement reads.
Politwoops, meanwhile, remains up and active. So, it seems that notoriety and status as a public figure are not the standard by which Twitter applies its tweet archiving rules. Instead, the space carved out for politicians and public servants appears to be a special one where the likes of celebrities and professional athletes do not operate. But if that is the line Twitter wishes to draw in its cyber-sand, it's a strange one.
In areas of law, the status of public figure-hood, as opposed to public servant, is typically the standard by which all kinds of laws are applied (such as the availability to parody, applicability of defamation laws, etc.). And there's good reason for this: the goal is to foster conversation and knowledge that is in the public interest. The public's interest need not be confined to politics, thankfully, yet Twitter's choices appear to reserve separate rules for the political class. I can understand why Twitter might think this makes sense. After all, I find the drunken midnight thoughts of senators far more compelling than those of a UFC fighter. But my interest isn't the same as the public interest.
Twitter can engage in this flipflopping, of course. It's their platform, after all, and they can keep it as arbitrarily closed as they like. The question becomes whether that makes the service more or less useful for the everyday Twitter user. And that's a question that I think has an obvious answer.
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Posted on Techdirt - 11 July 2016 @ 11:45am
What is it with South American historical figures suddenly thinking they can control everything to do with their family names? You'll hopefully recall the brief existence of a case of publicity rights violation brought against Activision by Manuel Noriega over the depiction of him in the gamemaker's Call of Duty series. That case was quickly tossed out by the court because the First Amendment has just an tiny bit more weight when it comes to artistic expression than does any publicity rights for public historical figures from other countries that might, maybe, kinda-sorta exist, possibly. We might have struggled at the time to find a complainant less likely than Noriega to win this sort of long-shot in the American court system, but we need struggle no longer.
Roberto Escobar, brother and former accountant to drug kingpin Pablo Escobar, has sent a letter to Netflix demanding a billion dollars (not a joke) and the right to review all future episodes of the streaming company's hit show Narcos, to make sure that he and his family are portrayed accurately. The letter, first published by TMZ (which explains the massive TMZ watermark on it) is quite a read.
“In the first season of Narcos, there were mistakes, lies and discrepancies from the real story,” the letter says. “To this date, I am one of the few survivors of the Medellin cartel, and I was Pablo’s closest ally, managing his accounting and he is my brother for life. I think nobody else in the world is alive to determine the validity of the materials, but me.”
Escobar adds that he is seeking $1 billion in compensation, and “if they decline my offer we have attorneys ready to proceed with necessary actions” over misappropriation of the Escobar name. “I don’t think there will be any more Narcos if they do not talk to me,” he says. “They are playing me without paying. I am not a monkey in a circus, I don’t work for pennies.”
Okay, so let's unpack this a little. For starters, Roberto Escobar isn't even in the television series. Like, at all. He's not even mentioned. Using a handy thing called creative license, the show portrays Pablo's accountant as someone completely different, not related to the family. Which means this is all about Roberto Escobar claiming exclusive rights over the portrayal of other Escobars, which is an interesting legal concept in that it has almost no grounding in any kind of reality.
First, Escobar makes no claim to any actual official intellectual property rights over his name. None. Instead, he touts his knowledge of the inner workings of the drug operation as the reason why he exerts this control. This novel legal theory is wholly unlikely to find any purchase within the American legal system. And, even if it were, as was the case with Noriega's lawsuit, the First Amendment trumps any kind of publicity rights that might exist, in particular when we're talking about historical figures such as pretty much every named real person in the Narcos series. Certainly Pablo Escobar qualifies, as would most of his notorious gang.
Instead, this is likely an attempt by Roberto to make enough noise to have Netflix hire him on to have some involvement in the show. He's apparently sent them letters in the past requesting this, prior to his request for the paltry sum typically reserved for Dr. Evil. Though I admit it would be comical to see him actually try this tactic in court.
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Posted on Techdirt - 7 July 2016 @ 3:58pm
While we've had some reservations in the past about the FTC's guidelines on endorsements and testimonials in the online arena, our concerns have tended to be about the grey areas of the law. The way that reviews for books, music and games often work falls into this grey area, with products and media handed out for review, and the disclosure guidelines the FTC laid out seem overly intrusive. Whatever our reservations about those guidelines, however, the goal of preventing the surreptitious pimping of a product or service by a trusted source that has direct connections with it was laudable.
Which brings us to two YouTube personalities, TmarTn and Syndicate Project, whose real names are Trevor Martin and Tom Cassell. These two have spent a great deal of time urging their followers to use the CSGO Lotto website while, at best, barely disclosing the site's sponsorship, and never even coming close to acknowledging that they are executives of the company behind the site.
Trevor Martin and Tom Cassell, known online as TmarTn and Syndicate Project, uploaded videos in which they appeared to win big prizes playing CSGO Lotto. But it has emerged that the pair are presidents of the company, which is incorporated in Florida.
Mr Cassell apologised on Twitter to those who felt misled. In a YouTube video message to his followers, which he later deleted, Mr Martin said that the ownership of CSGO Lotto had "never been a secret".
"I created the site. I wanted to build something awesome for other people to enjoy and I played on it," he said. "Obviously, on my end, me playing on Lotto rather than other sites, gives me an advantage because it promotes my own site, but it is not immoral, there is nothing wrong with it. I am 100% honest."
Yet it's difficult to square that response with the facts. CSGO stands for Counter Strike: Global Offensive, a very popular online shooter. Within that game, players can mod their weapons with "skins", or visual modifications. Whatever that sounds like to you, please understand that there is serious money in the use, trading, and selling of these skins. That in turn has spawned websites that allow you to gamble these skins, wagering them to potentially win more valuable skins at the end of a game, with winners supposedly chosen at random. For this, CSGO Lotto has an 8% rake on the value of the skins given away in a round.
So, what kind of money are we talking about here? Well...
In April, Bloomberg reported that online betting on games such as CSGO was a booming industry worth billions of dollars.
Yeah, it's a big deal. Now, back to our two YouTubers and their claims of total honesty and transparency. Despite what they say, the current outrage has only come about because another YouTuber dug up the ownership details on the company behind CSGO Lotto, finding that the site's president is one Trevor Martin and its vice president is Thomas Cassell. Before those details were published? No controversy. Now that they've been published? Controversy. These two can claim they properly disclosed their associations all they want, but the fact that those disclosures didn't do the job of informing viewers that they owned the site says everything.
Oh, and about those disclosures:
In short, h3h3 was unable to find any instances of Martin or Cassell disclosing affiliation with CSGO Lotto—let alone high level operation of it....
On top of that, in an earlier video about CSGO Lotto that’s since been made private (you can see it in h3h3's video above, however), Martin said things like, “We found this new site called CSGO Lotto, so I’ll link it down in the description if you guys want to check it out. We were betting on it today and I won a pot of like $69 or something like that, so it was a pretty small pot, but it was like the coolest feeling ever. I ended up following them [CSGO Lotto] on Twitter and stuff, and they hit me up and they’re talking to me about potentially doing like a skin sponsorship.” That is, as PC Gamer points out, a pretty strange way to talk about a site you helped found.
Martin has also claimed that CSGO Lotto videos did include disclosures, but if you run videos like “HOW TO WIN $13,000" through the ol’ Wayback Machine, it appears that a very slight disclosure—“video made possible by CSGO Lotto”—was added after the fact.
The wonderful thing about new media outlets like YouTube is that the barriers to gaining a following are lower. The other side of that coin, however, is that trust is the ultimate selling point, and it's the kind of thing you can only lose once. It's hard to imagine that these two will have any kind of loyal following after this episode, not to mention that the FTC is likely to come calling. They've done it before, after all.
Either way, lesson learned, boys?
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Posted on Techdirt - 6 July 2016 @ 3:52pm
If you'll recall, back when the American presidential campaign was still in full swing and we weren't all left with only two candidates that basically distill the concept of the lesser of two evils argument for voter participation, Mike Huckabee held a rally for Kim Davis and played Eye of the Tiger by Survivor to introduce her. While there was enough wrong in the entire episode to fill up many, many pages, Techdirt focused first on Frank Sullivan of Survivor's lawsuit against Huckabee for copyright infringement. Most observers initially thought that the suit wouldn't go anywhere, as most of the time these politicians have the proper blanket licensing to play these songs as part of their campaigns. Upon further inspection, however, the Kim Davis rally couldn't really have been considered part of Huckabee's ill-fated campaign, which would render any license his people had obtained useless. This was confirmed when Huckabee bizarrely put forth affirmative fair use defenses, claiming that the use was non-substantial and non-commercial...because the Kim Davis rally was a religious rally.
I said at the time that the tactic was unlikely to work and, additionally, was quite a disgusting attempt, given the piety that Huckabee likes to portray. Debasing religious conviction to get out of copyright infringement is stunningly shrewd, even to a devout secularist such as myself. Especially when Huckabee could have simply found a band willing to give permission for the use, setting up some kind of God v. Copyright showdown seemed slimy.
But that's what the former candidate chose to do, which brings me to this strange string of words I never thought I'd put in this particular order: God lost to copyright.
Failed presidential candidate Mike Huckabee is paying $25,000 for playing "Eye of the Tiger" at a rally last year without the band's permission, CNNMoney has discovered. Huckabee never paid for the rights -- so his campaign got sued for copyright infringement. He recently agreed to a confidential settlement with Rude Music. That company is owned by the Survivor guitarist who cowrote the song, Frankie Sullivan.
The claim that the rally was a religious gathering and not connected to the Huckabee campaign reportedly fell apart because he had listed the rally as a campaign expense on his records. Interestingly, despite Huckabee's claim that it was not a campaign event, that it was so will allow him to use his campaign's warchest to pay off the settlement.
And thus comes to an end a politician's campaign infringing on copyright and trying to invoke religion to get out of it. Thy kingdom come...to a settlement with an 80s band, apparently.
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Posted on Techdirt - 6 July 2016 @ 12:54pm
Hey, guys, how was your 4th of July? Good? Lots of hot dogs and brats? Nobody firecrackered their nuts off or anything? Maybe just drank a little too much? Whatever your 4th of July experience, it sure wasn't as bad as this guy's.
Meet Bryton Mellott. Bryton's just a guy from Urbana, IL. A guy with a Facebook page that he uses to share stuff with friends, post hilarious memes, and post a picture of himself burning the American flag on the 4th of July, the anniversary of when President Washington personally haymaker-punched the King of England right in the face (I think), thereby setting
all some Americans free of our British overseers.
As you can imagine, lots of people didn't like Bryton's picture. Some called the police about it for reasons we will get into in a moment. Others threatened him with violence and death. Still others threatened him with violence and death at his place of work. A few meager folks stuck up for him. You know, Facebook.
And at the end of the day, Bryton was arrested by Urbana police. Per the department's own press release.
On the morning of 7/4/16, the Urbana police department began receiving calls concerning a Facebook post that portrayed Bryton Mellott, a citizen of Urbana, burning an American flag. The images and narrative in the post caused some to call and request police action against Mellott and others to call and express concern for the safety of Mellott and those around him. Officers viewed the post and saw that there were a rapidly growing number of social media responses. Many threatened violence against Mellott and his place of employment, which fielded a large volume of calls regarding the post.
Given the volume of responses and specificity of threat against his place of employment (a location where an act of violence would likely cause harm to others), prompted police involvement in this case. After investigating the incident and speaking to both Mellott and his employer [Walmart -EV], Mellott was placed under arrest for flag desecration. The police report lists Mellott as an offender of both flag desecration and disorderly conduct as well as a victim of disorderly conduct. After consulting with a member of the States Attorney’s Office, Mellott was released from custody and given a notice to appear in court. Mellott’s release was due to questions about the constitutionality of the 2013 Illinois flag desecration law.
The Urbana Police department recognizes that this is a case where the right of free speech comes into conflict with the safety of uninvolved citizens. The actions taken in this case have been to try to assure the safety of the public and Mr. Mellott. The Urbana Police urge the public to express themselves in a peaceful way and to not retaliate against unpopular speech.
There is just so much wrong in that press release that it's hard to know where to begin. Let's start with the flag desecration bit first. The end of the PR piece says that Bryton was released because there are questions about the constitutionality of Illinois' flag desecration law, which makes it illegal to burn the American flag. Yet there are zero questions about it, actually. The Supreme Court was quite clear in rulings in the 80s and 90s that laws like the one in Illinois, which was enacted in 2013, are flat out unconstitutional. The burning of the flag can make you mad and sick, but it's speech, and it's worth protecting. That additional bit about consulting with the States Attorney's office wasn't so much a consultation as it was that office telling police to let him go and then refusing to charge him because they couldn't.
The State’s Attorney’s Office is declining to file charges against (Bryton) Mellott as the act of burning a flag is protected free speech according to the US Supreme Court decision, Texas v. Johnson, 491 US 397 (1989).
Now, to the disorderly conduct portion of this. That charge as well is completely nonsensical. If the burning of the flag is free and valid speech, the uproar that occurred on social media, including the threats of violence, can in no way be made the fault of the free and legal speech. Bryton didn't make any threats. He didn't act disorderly in any way. He was purely a victim here.
And the court has made clear since 1949 that the government can’t punish someone for “disorderly conduct” simply because his speech offends people and leads some of them to threaten violent retaliation. The police must protect the speaker (even though such protection understandably involves cost and risk for the police), rather than criminally punish him for his speech, except perhaps in some extremely rare cases that involve brewing riots on the street — a narrow category into which this speech doesn’t fall.
Which brings us to the police's use of those threats as part of its excuse for involvement and the eventual arrest of Bryton to begin with. Keep in mind, whatever you think of it, that what Bryton did was legal. For others to threaten him and his place of work with violence, and to then use those threats to arrest Bryton is one of the most blatant examples of victim-blaming I can think of. The summary here should make this clear: a man, on the 4th of July, engaged in free speech, had threats made against him, and then those threats were the excuse used to arrest that man. Nowhere does the department's comments state that any other arrests have been made, such as the arrests of those who actually committed a real crime by making violent threats.
Being an advocate for free speech means protecting speech you don't like. I can't think of a more pure example of the opposite of that than this story.
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Posted on Techdirt - 5 July 2016 @ 3:27am
Terrorism is scary. That's the entire point of terrorism, of course. The relatively meager bodycounts of acts of terror -- compared with, say, most minor individual battles in either of the World Wars -- are actually attempting to create some kind of political or social change amongst the victims. And guess what? It totally works! After all, western nations, the bastions of freedom and puppy dogs that we are, have reacted to what is ultimately a minor threat by reporting toddlers to the authorities, freezing the bank accounts of people with dogs whose names are a couple of letters off of the scary terror-enemy, and refusing online services to people with scary (read: Islamic) sounding names. Freedom, you see, isn't free, and we have to pay for it with freedom.
And the real lesson that should be learned from pretty much the entire early part of this century is that once you start the fear-ball rolling when it comes to terrorism, it gets really hard to prevent it from trampling a great deal of innocent people in some of the dumbest ways possible. Take, for instance, Sony just flat out banning a guy's Playstation Network account because his parents named him "Jihad."
Jihad Al Mofadda, whose story shot to the front page of Reddit yesterday, said that Sony banned his account on June 7. At first, PlayStation customer support offered to switch his PSN name to something else. Then, he says, after a few days of silence, a different representative reviewed the ticket and decided to ban the account entirely, preventing Al Mofadda from accessing his stats, trophies, and all of the digital games he’s purchased. After his story exploded, Al Mofadda was able to get in touch with a Sony representative again, but he was unable to keep his original handle.
Ok, there's a lot to unpack here. Stories like this are fantastic for pointing out how easy it is for a corporate entity to try to apply some kind of language policy to its online forums and systems only to find itself hopelessly engaging in hypocrisy. For instance, Jihad is a word with a lot of discussion about what it actually means. Westerners tend to associate it with the term "holy war", and it has indeed been used in that way historically, but the word itself essentially means to persevere or struggle to keep the Islamic faith. To that end, Jihad isn't a rarity in use as a first name in Muslim circles. Meanwhile, one of my own Playstation friends has the handle HowDatDicTaste. Shall we vote on whether that handle or the one Al Mofadda used, iJihaD, is more likely to offend?
But the fact that Sony refused to allow the handle even when it was explained that Jihad was Al Moffada's first name moves this into epic levels of silliness.
One e-mail from a Sony representative read as follows: “As stated in our previous email, we have to consider the network as a whole and we need to take every ones feelings into account. I can appreciate that your name has many meanings but it has one meaning that a lot of users find offensive and there for, when a report was submitted the decision to ban your account was taken.”
Imagine for a moment that some religious sect went completely rogue somewhere in the world and carried out a series of violent attacks. And imagine that this sect decided to name these attacks "Steves." Sect members would walk into a crowded marketplace in Brazil, declare a Steveing, and set off a bomb. And let's say that these attacks received wide press coverage.
Would Sony then ban the accounts of everyone named Steve? C'mon, it's the guy's first name and he has the passport to prove it.
At the time of this writing, Sony is still refusing to allow him to use his old handle, but has allowed him to keep the purchases on his account under a different name. This means he gets his games, but loses all the friend connections he'd made as well as his game trophies. Is this the biggest deal? Of course not. But the point is that when we can't even allow people to use their own first names because we're all petrified by terrorism, things have gone a bit too far.
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Posted on Techdirt - 1 July 2016 @ 6:18pm
It's pretty common knowledge at this point that the Chinese government spends a great deal of time and effort attempting to censor the internet at its own whim. And, while the walls of censorship erected are penetrable with enough effort, it still results in much of the population being unable to search out information that might be embarrassing to the Chinese government, such as references to the Tiananmen Square incident, for instance. But while examples like that can make some measure of sense to outside observers, even as they still decry the censorship, the fact is that the Chinese government's application of this censorship has been managed so erratically and unpredictably that the result is everyone watches where they step for fear of a takedown.
Which naturally brings us to Lady Gaga, whose meeting with the Dalai Lama recently resulted in the Chinese government attempting to wipe her off of the China-facing interwebz.
Hong Kong news outlet Apple Daily reports that China’s Ministry of Propaganda and SARFT, the regulatory body that oversees media, ordered China’s broadcast and websites to stop offering Lady Gaga songs. They also ordered media outlets not to publish anything (link in Chinese) about Lady Gaga’s meeting with the Dalai Lama, other than what prominent state-media publications have written.
“[Media outlets] must resolutely struggle against Tibetan independence, and closely follow reports from CCTV, the Global Times, People’s Daily, and other reports and commentary from central media outlets,” the directive reads, according to Apple Daily.
The Tibet issue is one that China regularly regulates in terms of coverage, of course, and the Dalai Lama is the worldwide person of focus for the cause of Tibetan indpendence. Even so, reacting to a meeting with an American pop singer by attempting to scrub the internet of news of the meeting and her music seems delightfully ham-fisted, even for Chinese censorship. And, as per usual, it isn't working particularly well.
A search on QQ Music, one of China’s most popular music streaming sites, shows there’s still plenty of Lady Gaga music available.
Which makes, as usual, the attempt at censorship come off as both petty and the wild flailings of an ineffective government agency. That, I would assume, is not the perception that the Chinese government was hoping to achieve. There will come a day when this particular government finally understands that these censorship attempts don't work in any way other than to supply a great deal of egg on its collective face, but that day is apparently not today.
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Posted on Techdirt - 1 July 2016 @ 3:38pm
A brief review of the many, many posts we've done here about the DMCA and its notice and takedown platform will reveal to even the casual reader that the whole thing is rife with complications, abuse, and inconsistencies. It can be a difficult realm to navigate, but there are times when an entity's claims of ignorance just don't ring true.
Which brings us to one independent Ford dealership that decided to simply yoink an image from a relatively new video game and use it to advertise automobiles.
A Boston-area Ford dealership is dealing with some internet blowback this afternoon after folks realized that the car-seller had swiped artwork from the indie game Firewatch to promote the “Ford Freedom” sales event.
The Consumerist link then provides a side by side comparison of the image from the game and the ad that the Ford dealership put out. As you will see, there wasn't even the barest attempt made to obscure the original image in any way.
So, yeah, they pretty much took an image from the game and slapped some copy on the front and pushed it out to potential car-buyers. That's pretty much as infringe-y as copyright infringement gets. And the use of the image is even somewhat ironic, given that Firewatch is a game that tasks you with traversing the wilderness entirely on foot and this is an ad for a car dealership.
The media began contacting Ford once folks on Twitter alerted the makers of the game to what the dealership had done. Ford washed its hands of the whole thing, stating that the dealership acted as an independent entity. The dealership, when contacted, pushed the calls off onto the dealership's advertising department. The advertising department just flat hung up on some inquirers, before emailing out its, um, "explanation."
The ad exec then wrote back to say clarify that “We always use DMCA compliant sites when getting images,” referring to the Digital Millennium Copyright Act. The ad guy claimed that the Firewatch image was obtained from a DMCA-compliant digital “wallpaper” site, but he seems to be confused about complying with the DMCA actually means.
Very confused, because obtaining an image from a site that complies with the DMCA doesn't suddenly make those images royalty-free, free to use in commerce, or even non-infringing themselves. All it means is that the site would comply with the notice and takedown procedure once alerted to an infringing work on its site. If no notice happens, the takedown might not happen either, which doesn't in any way render the image non-infringing.
The fact that we don't hear of this kind of thing happening more often is likely an indication that the actual rules within the DMCA and how copyrighted images can and can't be used in commercial ad copy is within the lexicon of most companies' advertising departments. This particular Ford dealership might want to give HR a call and get the ball rolling on some staff turnover.
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