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




Posted on Techdirt - 29 May 2015 @ 7:39pm

Sting Operation Shows How Full Of Crap Health Journals Are When It Comes To Dietary Studies

from the eat-it dept

Look, I probably don't have to tell you Techdirt readers this, but I'm a strange sort of cat. I could go into all the reasons why I'm odd, but whenever I try to explain to people how non-normal I am, I usually just reveal this little bit of truth: I hate chocolate. No, I don't not-love chocolate. Nor do I dislike chocolate. I fucking hate it, nearly as much as I hate how low I appeared on this ingenious bit of sleuthing a commenter did in determining which Techdirt writers swear the most (a list which I insist is fucking bullshit, by the way). That said, everyone else loves chocolate, of course, so I'm sure they and many others were thrilled to see so many well-respected publications blaring headlines recently about how chocolate can help reduce weight. I'd show you a bunch of links to those stories put forth by supposedly well-respected journalism outlets and scientific journals that make heavy claims about peer-reviews and fact-checking, but I can't because most of those stories have been pulled. Why?

Because the whole thing was a bullshit hoax put on by a journalist to make the point that, at least when it comes to studies around diet and health, the journals and the media the reports on their papers are largely full of crap. Go read that entire thing, because it's absolutely fascinating, but I'll happily give you the truncated version. John Bohannon, who has a Ph.D in molecular biology of bacteria and is also a journalist, conspired with a German reporter, Peter Onneken, to see how badly they could fool the media to create BS headlines. They did this by turning John Bohannon into Johannes Bohannon (obviously) and creating a website for The Institute of Diet and Health, which isn't actually a thing. Then they conducted a very real study with three groups: 1 group eating a low-carb diet, 1 group eating their regular diet, and 1 group eating a low-carb diet and a 1.5oz bar of dark chocolate daily. After running background on the groups, conducting blood tests to correct for disease and eating disorders, and hiring a German doctor and statistician to perform the study, away they went. The results?

Onneken then turned to his friend Alex Droste-Haars, a financial analyst, to crunch the numbers. One beer-fueled weekend later and... jackpot! Both of the treatment groups lost about 5 pounds over the course of the study, while the control group’s average body weight fluctuated up and down around zero. But the people on the low-carb diet plus chocolate? They lost weight 10 percent faster. Not only was that difference statistically significant, but the chocolate group had better cholesterol readings and higher scores on the well-being survey.
Bam, results! Not just results, but results the media would absolutely love to sink their idiotic teeth into. The problem? Well, the method for running the entire study was bullshit.
Here’s a dirty little science secret: If you measure a large number of things about a small number of people, you are almost guaranteed to get a “statistically significant” result. Our study included 18 different measurements—weight, cholesterol, sodium, blood protein levels, sleep quality, well-being, etc.—from 15 people. (One subject was dropped.) That study design is a recipe for false positives.

Think of the measurements as lottery tickets. Each one has a small chance of paying off in the form of a “significant” result that we can spin a story around and sell to the media. The more tickets you buy, the more likely you are to win. We didn’t know exactly what would pan out—the headline could have been that chocolate improves sleep or lowers blood pressure—but we knew our chances of getting at least one “statistically significant” result were pretty good.
Bohannon goes into some of the gory math, and it really is fun to read, but this is pretty easy to understand. With a small enough sample size and testing for as wide a range of results and factors as possible, you absolutely expect to find greater variance than if your study was testing for less factors or had a higher sample size. It's simple: people are different and testing less people makes those difference statistically appear to be more significant.

Anyway, the team then went to the International Archives of Medicine, which Bohannon identifies as a "fake journal" publisher. In other words, pay enough Euros and your "study" gets "published", all without the bothersome time-waster known as being peer-reviewed. Not that IAM doesn't claim to be reviewed. It certainly does make that claim, but after payment was accepted Bohannon found that their study had been accepted without change. And, keep in mind, this study is designed to be bad. So, once the study had been published, it was time for the PR machine to swing into action.
Take a look at the press release I cooked up. It has everything. In reporter lingo: a sexy lede, a clear nut graf, some punchy quotes, and a kicker. And there’s no need to even read the scientific paper because the key details are already boiled down. I took special care to keep it accurate. Rather than tricking journalists, the goal was to lure them with a completely typical press release about a research paper. (Of course, what’s missing is the number of subjects and the minuscule weight differences between the groups.) But a good press release isn’t enough. Reporters are also hungry for “art,” something pretty to show their readers. So Onneken and Löbl shot some promotional video clips and commissioned freelance artists to write an acoustic ballad and even a rap about chocolate and weight loss. (It turns out you can hire people on the internet to do nearly anything.)

Onneken wrote a German press release and reached out directly to German media outlets. The promise of an “exclusive” story is very tempting, even if it’s fake. Then he blasted the German press release out on wire service based in Austria, and the English one went out on NewsWire. There was no quality control. That was left to the reporters.
And it didn't take the reporters long to pick up this crap-on-a-stick and run with it like children after the ice cream truck. Not all of them, but some of the stories are still up. The Daily Star covered their paper, for instance, as did the Times of India, international editions of The Huffington Post, and some television news programs. Men's Health was going to go with a story in September, though that probably won't run now. Shape Magazine didn't get off so lucky, with their story appearing in the June issue, in print. And remember, this is all bullshit. None of it is real. How does something like this happen?

The answer is lazy "journalists."
When reporters contacted me at all, they asked perfunctory questions. “Why do you think chocolate accelerates weight loss? Do you have any advice for our readers?” Almost no one asked how many subjects we tested, and no one reported that number. Not a single reporter seems to have contacted an outside researcher. None are quoted. These publications, though many command large audiences, are not exactly paragons of journalistic virtue. So it’s not surprising that they would simply grab a bit of digital chum for the headline, harvest the pageviews, and move on. But even the supposedly rigorous outlets that picked the study up failed to spot the holes.
Now, there is some humor in all of this, but also danger. It's one thing to claim that chocolate leads to weight loss and have the media run wild with it, but we all know that fad diets and exciting health claims rain down on us in buckets, and I think it's safe to say that not all of them are as harmless as Bohannon's. The average person hasn't done much thinking about the validity of these studies that they read about in the media; they simply trust the media to do the fact-checking. The media, it appears, largely trusts the journals to do the reviews and fact-checking. Except some (many?) of those journals don't. The whole thing harkens back to one of the funnier moments in the Anchorman movie, when the main character makes a ludicrous claim about women's brains being smaller than men's, and then punctuates the statement with a smirk, saying, "It's science." As far as much of the media reporting goes, it might as well be "science."

Strangely, Bohannon notes that readers of the articles were apparently more skeptical than the authors.
There was one glint of hope in this tragicomedy. While the reporters just regurgitated our “findings,” many readers were thoughtful and skeptical. In the online comments, they posed questions that the reporters should have asked.

“Why are calories not counted on any of the individuals?” asked a reader on a bodybuilding forum. “The domain [for the Institute of Diet and Health web site] was registered at the beginning of March, and dozens of blogs and news magazines (see Google) spread this study without knowing what or who stands behind it,” said a reader beneath the story in Focus, one of Germany’s leading online magazines. Or as one prescient reader of the 4 April story in the Daily Express put it, “Every day is April Fool’s in nutrition.”
If we've reached a time when readers are more skeptical than the reporters, that's a massive problem for journalism, but perhaps a delightful sign for the spread of skepticism and inquiry amongst the public. Either way, look with a critical eye the next time you hear about that fad diet or health food claim.

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Posted on Techdirt - 28 May 2015 @ 3:38pm

Throwback Thursday: Eat'n Park Still Suing Over Smiley Face Cookies After All This Time

from the :( dept

The more things change, the more they stay the same, as the saying goes. Over half a decade ago, Techdirt covered a bakery out of Pennsylvania that used trademark laws to keep another bakery from putting smiley-faces on its cookies. Frankly, it's one of those stories we cover where the immediate question of how trademarks could be twisted into this nonsense is immediately followed by the assumption that the whole thing will soon go away, never to be repeated again.

Not so much in this case, as it turns out. Eat'n Park recently once again brought a federal trademark suit against another company for daring to put the universal symbol for happiness on a cookie.

Eat'n Park this week sued a Chicago company in federal court over its use of a cookie that the Pittsburgh restaurant chain says is too similar to its trademarked Smiley face cookie. The suit filed Tuesday said Chicago American Sweet & Snacks sells cookies called "Smiley's" that Eat'n Park says are a lot like its product. Eat'n Park has sold its Smiley cookies since 1985 and has filed numerous trademark infringement suits against various companies over the years to protect the design.
It should be noted that the dispute also seems to be about the two company logos for their respective smiley-face cookie brands, not just about the baked goods. Here are the logos for both.

Now, let's leave aside for a moment the fact that the two logos don't look anything alike and are about as likely to be confused with one another as my manly physique is likely to be confused with a professional bodybuilder's. Instead, I'd like to propose that there should be a provision in trademark law that goes something like this: if your distinctive logo is so generic that tons of your competitors keep accidentally coming upon the same base design as yours, nobody gets to trademark it. Think of it as something like an independent invention test for patents. We can call it the Geigner rule, because vanity is my trademark, jerks.

“In this particular case, the “Smiley’s Cookies” logo name and design used by the company infringes on our brand trademark,“ said spokesman Kevin O’Connell.
If it was audible, Mr. O'Connell would be hearing the sound of my eyes rolling. Nobody is associating a smiley-face cookie with any particular brand, because the very idea seems like the kind of thing that everyone came up with when making cookies in their home kitchens. Maybe it's time someone do a cookie with an "R" encircled by the treat, huh?

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Posted on Techdirt - 28 May 2015 @ 1:36pm

Rockstar Ironically Goes On The Trademark Muscle To Silence BBC Documentary

from the think-twice dept

If you're amongst that odd combination of gaming enthusiast and strident supporter of the First Amendment, Rockstar is likely one of your hero-companies. The maker of the Grand Theft Auto series has long relied on free speech principles both for the outlandish (and entertaining) content in its games, but also as a defense against every last crazy sorta-famous person out there that thinks the company has appropriated their likeness in what amounts to at worst parody and more likely an amalgam composite of pop culture characters.

And, as it is with any kind of hero, it truly hurts when they fall to the dark side of the force. Rockstar has announced, for reasons I can't even imagine, that it has filed suit against the BBC over an upcoming film called Game Changer, which is to focus on the stories of GTA creator Sam Houser and all-around great human being Jack Thompson. The basis for the suit is -- sigh -- trademark violations.

The game company told IGN that it has filed a lawsuit to ensure its trademarks "are not misused in the BBC's pursuit of an unofficial depiction of purported events related to Rockstar Games." Now, Take-Two is claiming that the BBC's movie infringes its intellectual property, though the substance of its arguments remain vague. The company wouldn't provide a copy of the complaint that it had filed against BBC.
The obvious part of this is that a filmmaker ought to be able to rely on the same sort of principles of fair use in order to make a dramatic telling that deals with real-life figures, companies and games. The US, the UK, wherever; this should be a no-brainer. No amount of use of gameplay footage or company logos ought silence artistic speech as a general rule, but it's absolutely insane for this argument to be made by Rockstar of all companies. Allowing these kinds of restrictions to prevent speech is the exact misdeed Rockstar is still fighting against in the Lindsay Lohan suit, after all.
If a lawsuit that objects to a film covering a First Amendment battle isn't sufficiently on the wild side, the complaint comes as Take-Two and Rockstar are still in court defending themselves against Lindsay Lohan's allegation that Grand Theft Auto V ripped off her image and persona. In that dispute, Take-Two has sought to sanction Lohan for filing a frivolous lawsuit and has told the judge, "Artistic works like GTAV simply cannot form the basis for right of publicity claims under either New York law or the First Amendment."
While trademark law and publicity rights laws aren't the exact same thing, the moral ground is the same in both arguments. For Rockstar to champion free speech in one court while seeking to plainly undermine it in another brings to mind names like Judas and Brutus. Why, when free speech has served it so well, is Rockstar seeking to undermine the very tool it's used to produce so many great games? Nothing in this BBC movie could be worth this betrayal. Hell, we all know that Jack Thompson is an asshat, guys.

Don't make us think you are too.

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Posted on Techdirt - 27 May 2015 @ 12:48pm

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

from the hackaccino dept

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

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

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

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

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

40 Comments | Leave a Comment..

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

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

from the virtually-dastardly dept

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

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

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

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

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

from the gaping-security-holes dept

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

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

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

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

37 Comments | Leave a Comment..

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

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

from the h4x0r! dept

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

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

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

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

49 Comments | Leave a Comment..

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

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

from the forget-it dept

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

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

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

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

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

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

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

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

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

from the shop-skillz dept

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

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

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

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

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

Call in Mario Marine!

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

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

from the unelectable dept

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

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

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

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

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

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

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

from the solid dept

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

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

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

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

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

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

from the how-is-this-possible? dept

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

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

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

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

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

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

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

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

Water Company Goes Trademark Bully on Graffiti Activists Over Hashtag

from the taking-back-the-tweets dept

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

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

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

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

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

Wat-aah concept!

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

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

from the awwwwww dept

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Big Red Soda Sues Big Ben Soda Over Big Trademark Dispute

from the big-deal dept

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

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

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

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

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

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

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

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

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

from the a-brand-new-world dept

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

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

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

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

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

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

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

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

from the losing-your-head dept

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

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

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

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

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

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

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

Trademark Dispute Between Brewery And Winery Over Northstar Brand

from the drinking-games dept

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

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

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

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

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