Posted on Techdirt - 28 October 2016 @ 2:36pm
When I drop dead of a massive heart attack, it will be because some huge company has bullied some small company over a ridiculous trademark that never should have been granted in the first place. The examples for this sort of thing are legion around Techdirt, but it still gets me every single time. The Trademark Office has done such a poor job of turning even the barest of critical eyes towards trademark applications that all sorts of short and common words have been granted trademarks all over the place, including in industries where it was plainly insane to grant them at all.
The latest of these concerns a small family-owned supper club in Maryland and the threat letter it received from an enormous casino company over the trademark it had somehow received on the word "live."
The Bethesda Blues and Jazz Supper Club in the 7700 block of Wisconsin Avenue was opened four years ago by owner Rick Brown. He envisioned a grand supper club on the scale of the famous Copacabana nightclub and wanted to preserve a landmark that had personal meaning to him and his family. After more than 900 concerts and 240,000 customers over four years, he decided to change the name of the business to Bethesda Live, attempting to attract a wider audience and let people know they have more than just blues and jazz acts.
Within days of announcing the name change, Brown got a letter from an attorney representing Maryland Live! Casino, ordering Brown to cease and desist with the name change and threatening legal action if he continued. The letter said, “Live! Holdings, LLC is the owner of the registered trademark ‘Live!’ and we are writing to object to your company’s contemplated use of ‘Bethesda Live’ in connection with an entertainment facility in Bethesda, Maryland.”
Yes, Maryland Live! Casino is asserting it has a trademark on the word "live" for use in the entertainment market. Put yourself in the chair of someone at the Trademark Office, if you can. You see an application for the word "live" to be used in the entertainment market. If you can picture yourself taking any course of action other than laughing maniacally as you light the application on fire, then it appears you're just the sort of person the USPTO is hiring, so go send in your resume. The rest of us will be facepalming over here, because that's not just a common word generally, but a word so common in the entertainment industry as to be downright ubiquitous.
And, yet, pretty much everyone agrees that if the casino wishes to move this dispute to a courtroom, the small supper club in Bethesda is completely boned.
Brown’s lawyer, Chris Foley, a trademark lawyer and partner at Finnegan Law, said the casino is overreaching. However, he said his client could be wiped out financially if he tried to fight the order.
“Oh, it’s trademark bullying.” Foley said. “I think we’re dealing with a David and Goliath (situation) that could cost hundreds of thousands of dollars easily and that’s not fair to him.”
“It is unfair,” Brown said. “Even if we were to fight a lawsuit, it would be very expensive. We just don’t have those resources.”
Trademark bullying occurs because it works. Brown has said he's reached out to the casino to plead that something be worked out, but the casino can't seem to find a way to let a blues supper club use the word "live." In a just world, this kind of bullying would result in the casino losing this overly-broad and common trademark entirely. Sadly, this world is often not quite so just as that.
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Posted on Techdirt - 27 October 2016 @ 11:15pm
Exactly how far can overly protective trademark owners go before the wider public wakes up to what a shitstorm trademark has become? It's a question I find myself asking often, given the type of stories we cover around here. It seems any progress made on that front is slow, however, and the ridiculous stories keep on rolling in. You may recall that the Premier League, the UK's famous soccer/football/whatever league, has already proven itself incapable of making any kind of sense while enforcing its intellectual property rights. Well, perhaps taking its cue from its parent league, the also-famous Arsenal soccer club is reaching across the pond to try to block a trademark application for a small bar in the suburbs of Pittsburgh.
When Arsenal Cider House filed for a trademark application, lawyers with the football club tried to stop them.
“I really don’t understand it completely. I know that they don’t have their name on alcohol that I know of, that I can find on the internet, but somehow they’ve justified opposing our trademark,” said Arsenal Cider House owner Bill Larkin.
Reviewing the myriad of iconography for Arsenal compared with what few images I found for Arsenal Cider House, any similarities between the branding appear to be minimal at most. They share the name, and Arsenal Cider House has a cannon in some of its branding, as does the soccer club. Other than that, everything else appears to be different: the colors, the logos, the fonts. Which means this appears to be all about the "Arsenal" name.
As Larkin notes, the soccer club doesn't appear to be involved in the liquor business, so it's not clear how the trademarks would either compete with one another or cause any customer confusion. For the latter, add to it that one entity is a massively well-known sporting team and the other is a local drinking spot and it's pretty clear there should be no confusion between the two. It's not like Arsenal Cider House was named after the team, either.
Larkin says he came up with the name because he was originally located across the street from Arsenal Park.
Yet, here is another small business owner forced to deal with a trademark opposition from a company an ocean away all the same.
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Posted on Techdirt - 27 October 2016 @ 10:44am
We've seen all manner of silly claims by copyright licensing groups as to what requires what kind of license in every kind of circumstance. These licensing groups have gone after children's charities. A UK collection society had the strategy of calling up local businesses and demanding payments should they hear music playing in the background. The Author's Guild once claimed that reading a book out loud constituted the need for a separate license, while ASCAP asserted with a straight face that the ring of a mobile phone was a public performance. This panoply of idiocy might be funny, except for the very real harm done through this kind of harassment.
Even the good stories in this vein weigh heavily in that they are necessary at all. For instance, the advocate general for the EU's Court of Justice recently wrote an opinion advising that hotels didn't need a copyright license just to have televisions within guest rooms. It's a good ruling, but conjures the frustrating question as to why it was needed in the first place. The answer, of course, is because a collection group was attempting to collect from hotels for just that reason.
On Monday, Court of Justice of the European Union advocate general Maciej Szpunar published his opinion on a case brought by the Verwertungsgesellschaft Rundfunk, a royalty collecting and copyright management company comparable to the BPI in the UK or MPAA in the US. The collecting company had asked a local court to force a hotel to pay extra licensing fees because guests were watching TV in their rooms. Vienna's Commercial Court, in its turn, sought guidance from the CJEU on how EU copyright law should be interpreted in this case.
At issue in this case was an EU directive on rental and lending rights, which affords broadcasters the right to allow or not allow the rebroadcasting of their content to the public. Specifically, the law states that this right applies only when an entrance fee to view such content is levied by the rebroadcaster. What the collection society argued was that hotels were levying such a fee, because it included televisions in rooms for which they were charging guests. That isn't remotely how the law was supposed to be applied.
But Verwertungsgesellschaft Rundfunk made the argument anyway, because facts and truth have no place in the realm of a collection society, where the only goal is to seek as much rent as possible in every circumstance, while providing as little value as possible. Again, it's a good opinion, but it's not a ruling in the case. That ruling will be taken up by the other justices on the court and they will take Szpunar's opinion on the matter into account. The general feeling appears to be that the court will side with Szpunar's opinion, which is also good.
But all I can think about is why is this necessary to begin with?
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Posted on Techdirt - 26 October 2016 @ 11:01pm
Back in August, Mike wrote about a trademark case between Car-Freshner Corp., the company that makes those ubiquitous tree-shaped air-fresheners, and Sun Cedar, a tiny non-profit that made real-wood fresheners while employing at-risk folk in the form of the homeless, ex-cons and recovering addicts. It was a strange case for any number of reasons, including the dissimilar appearance between the product of the two companies, the wide delta of size of the two companies, and the very nature of the work Sun Cedar was attempting to do as a social good. Sadly but unsurprisingly, Car-Freshner trotted out the excuse that it had to sue this small non-profit or risk losing its trademarks.
And now it seems like, rather than working out some other kind of arrangement that would have allowed Sun Cedar's good work to continue, the trademark dispute has resulted in the end of the non-profit entirely, at least in its current iteration. Even with an attorney agreeing to represent the non-profit for free, the costs of taking on the suit in far-off NYC simply killed the whole operation.
Mediation efforts between Sun Cedar and Car-Freshner were unsuccessful and last month Sun Cedar filed for Chapter 7 bankruptcy. Its shop, a converted garage, now sits idle. The equipment Adams purchased will be sold to pay off Sun Cedar’s debts.
“A disappointing aspect to me about this case was that this could not have been achieved through coexistence, that we couldn’t resolve this through the parties just talking and settling this,” [attorney] Schwimmer says.
The post then goes on to trot out the aforementioned preferred excuse for this kind of trademark bullying: Car-Freshners had to torpedo this small non-profit employing the otherwise unemployable, because otherwise it might lose its trademark rights. This isn't true. And, to the post's credit, it goes on to quote Cheryl Burbach, a trademark attorney not involved in the case, thusly:
“I have a friend who always says infringers are just business partners you haven't met yet. I can’t take credit for that, but I think it’s a very apt statement,” Burbach says.
Of course it is! Car-Freshners could have looked at the good work Sun Cedar was doing and chose to make them a business partner, rather than a corporate ghost. It could have cheaply licensed Sun Cedar's production, even working out an arrangement to promote them via the license, building some good-will with the public on the back of Shine Adams' philanthropy. And, even that wasn't necessary, because as was explained in the original post on this case, it's pretty clear that (1) Sun Cedar didn't infringe and (2) Car-Freshener's trademarks very likely are invalid. But, Car-Freshener has a history of trademark bullying and it kept it up here. Instead of letting this non profit continue doing good work, Sun Cedar is bankrupt and, according to its website, desperately trying to start all over again, thanks to a view in the trademark realm that sees attack as the only option.
This, because a non-profit tried to get ex-cons and recovering addicts to make tree-shaped wood air fresheners. Great.
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Posted on Techdirt - 26 October 2016 @ 2:38pm
Stories of Facebook's attempt at puritanical patrols of its site are legion at this point. The site has demonstrated it cannot filter out parody, artwork, simple speech in the form of outrage, iconic historical photos, or sculpture from its prude-patrol censorship. As a private company, Facebook is of course allowed to follow its own whim when it comes to what is allowed on its site, but as an important tool in this era for communication and speech, the company is also a legitimate target for derision when it FUBARs this as badly as it does so often.
So queue up the face-palming once more, as Facebook has decided to remove a video posted by a Swedish cancer charity informing women how to check for breast cancer, because the video included animated breasts, and breasts are icky icky.
Facebook has removed a video on breast cancer awareness posted in Sweden after deeming the images offensive, the Swedish Cancer Society said on Thursday. The video, displaying animated figures of women with circle-shaped breasts, was aimed at explaining to women how to check for suspicious lumps. Sweden’s Cancerfonden said it had tried in vain to contact Facebook, and had decided to appeal against the decision to remove the video.
Based on images on Cancerfonden's site, the tantalizing breasts in question were of the variety of stick figures. Not exactly tantalizing in its imagery, the video content was instead supposed to educate women on the proper method for detecting lumps that could be cancerous. Save for perhaps some minor percentage of humankind, these are the types of images that don't conjure a sexual connotation. And yet Facebook took them down.
To the social media giant's credit, it eventually put the video back up on its site and apologized.
In a statement to the BBC, a spokeswoman for Facebook said the images of the Swedish campaign had now been approved.
"We're very sorry, our team processes millions of advertising images each week, and in some instances we incorrectly prohibit ads," she said. "This image does not violate our ad policies. We apologise for the error and have let the advertiser know we are approving their ads."
Which, you know, fine, but exactly how many of these types of stories must be endured before Facebook acknowledges that there is a problem with its filtering and censorship process? I don't think the exclusion of oversight is the answer, but I would hope that we could agree that if the takedown filters continue to catch bronze statues and breast cancer videos in its net, perhaps some recalibration is needed.
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Posted on Techdirt - 25 October 2016 @ 3:28pm
On the bright side, I suppose, if the plan by the Cubs was to undertake an overly aggressive stance on trademark protection every round of the playoffs, there's only one round left, so this should be it. We had just been discussing that as the team entered the League Series to attempt to make the World Series, it had filed a lawsuit against the many street vendors that line the path to Wrigley Field for selling counterfeit merchandise. This suit, while perfectly within the rights of the team, bucked a decades-long trend of allowing those sales. It was part of the tradition of going to a game, walking by these vendors and seeing their kooky designs. Another tradition for the team is raising a blue "W" flag whenever they win. That "W" was part of trademark opposition by the Cubs and MLB when a business unrelated to the professional sports market dared to use the single letter in a logo for its financial services product.
And now it seems that, on the eve of the World Series, the Cubs are going after more than one kind of W still, as well as the letter C.
On October 17, one day after losing Game 2 of the National League Championship Series to the Los Angeles Dodgers, the Cubs filed two TTAB oppositions against trademark applications pending with the U.S. Patent and Trademark Office (USPTO). One mark, filed by Laserwave Graphics, Inc., is for a design that includes the letter “W”. Another, submitted by CopyClear, contains a large “C” with accompanying letters that spell out the company’s name.
Here are the two logos in question. Note how the first makes it extremely clear what company it represents, while the other is simply a "W."
That image, unfortunately, is grayed out, while the Cubs claim that the colors being used within the logos plays a part in its opposition. Let's take those images in reverse order. The "W" is in the trademark application for Laserwave Graphics, which does imaging, branding, and printing on a variety of products. The "W" design appears to be mostly used on watches. The Cubs claim that some of these watch designs also incorporate baseballs, hence the problem. Except we're still talking about a single letter, in a different font, used in a market for which the Cubs are not well known. It's difficult to believe people are looking at these watches and thinking "Cubs."
As for the Copy Clear logo, it's somewhat ironic that Copy Clear's business is in licensing copyrights. The Cubs make much of the fact that the "C" in Copy Clear's logo is red, similar to the red "C" in the team's logo. Which is strange, because on their website, the Copy Clear logo is black with a green background. But even if a red version of the logo indeed exists, the company's name is spelled out within it as well. Where precisely is the customer confusion going to exist here? The "C" is clearly a reference to the registered copyright symbol, not to the Cubs, and it seems like everyone would make that connection.
So, my dear, dear Cubs: I love you, but it's probably time to stop worrying so much about how others are using letters that you use as well. Just go out and win this thing, please.
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Posted on Techdirt - 24 October 2016 @ 3:20pm
With the time we spend discussing the scourge of DRM that has invaded the video game industry for some time, it can at times be easy to lose sight of those in the industry who understand just how pointless the whole enterprise is. There are indeed those who understand that DRM has only a minimal impact on piracy numbers, yet stands to have a profound impact on legitimate customers, making the whole thing not only pointless, but actively detrimental to the gaming business. Studios like CD Projekt Red, makers of the Witcher series, and Lab Zero Games, makers of the SkullGirls franchise, have come to the realization that focusing on DRM rather than focusing on making great games and connecting with their fans doesn't make any sense.
And now we can add Polish game studio Flying Wild Hog to the list of developers that get it. The makers of the recently released Shadow Warrior 2 game have indicated that it basically has zero time for DRM for its new game because it's entirely too busy making great games and engaging with its fans. On the Steam forum, one gamer noticed that SW2 did not come with any embedded DRM, such as Denudo, and asked the studio why it wasn't worried about piracy. Flying Wild Hog's Kris Narkowicz replied:
“We don’t support piracy, but currently there isn’t a good way to stop it without hurting our customers. Denuvo means we would have to spend money for making a worse version for our legit customers. It’s like this FBI warning screen on legit movies.”
In a follow-up statement to Kotaku, Kris went even further.
“Any DRM we would have needs to be implemented and tested,” KriS explained to Kotaku. “We prefer to spend resources on making our game the best possible in terms of quality, rather than spending time and money on putting some protection that will not work anyway.”
In other words, the studio could spend time, money, and resources chasing around a white horse in the belief that it was some kind of anti-piracy unicorn, but doing so would be business-stupid. Instead, the studio has chosen to focus on making its game as great as it possibly can while choosing not to implement software within it that might harm that great experience for legitimate customers. Other staff at the studio essentially acknowledged that not including DRM on the game might result in some lost number of sales, but that the cost to the game and legitimate customers made it so that those lost sales didn't matter as much.
They’re banking on the quality of their game earning them enough money to counteract the lack of money coming in from people who’ll just steal their game. “We also believe that if you make a good game, people will buy it,” they said. “Pirates will pirate the game anyway, and if someone wants to use an unchecked version from an unknown source that’s their choice.”
It's always refereshing to hear when a game studio chooses to shrug off the understandable anger that must come along with finding that others are pirating its product to instead focus on what the best course of action for the business actually is: making the best product it can. Altruism doesn't run uniformly through the gaming public, but there are more than enough gamers willing to pay for quality games to make up the difference. It's not a perfect scenario from an ethics standpoint, but given that the alternative is arguably ethically worse in that it almost always carries with it a negative impact to paying customers, this is as good as it gets.
But does this sort of approach work? Well, you can see for yourself, as Shadow Warrior 2 currently sits atop Steam's "Top Sellers" chart and sits at the top of GOG's "Popular" sales tab. Hey, other studios, are you paying attention yet?
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Posted on Techdirt - 21 October 2016 @ 7:39pm
Amidst the reporting and fervor over the email hack of Hillary Clinton's campaign chairman, John Podesta, there has been something of a recent discussion that has begun over the ethics of circulating what is in that hacked cache. Some within the media itself have worried about about reporting either too much on the hacked emails, or even at all in some cases, with still others going for a more nuanced position of encouraging the reporting of information in the public interest while leaving all the personal stuff in the emails undisclosed to whatever degree is possible.
It's not difficult to see the wisdom and morality in some of this, particularly when one witnesses the glee the Clinton campaign's political opponents have taken in circulating internal communications within the campaign that have no real public value other than serving as a point-and-laugh target for the most partisan among us. And it seems as though some in the GOP have in mind that there are certainly people on the other side of the aisle that would take the same joy in all of this, if the shoe were on the other hacked foot, as it were. Marco Rubio, for instance, recently released a statement indicating that anything published by WikiLeaks was out of bounds, as far as he was concerned.
"Today it is the Democrats. Tomorrow, it could be us," Rubio said in a statement. "I will not discuss any issue that has become public solely on the basis of WikiLeaks," added Rubio, who is up for re-election. "As our intelligence agencies have said, these leaks are an effort by a foreign government to interfere with our electoral process, and I will not indulge in it."
Frankly, it's refreshing to see a major political partisan actually understand that when you open up every option on the table to attack the political opponent, that can come back and bite you in the ass. But how wise is this particular stance, actually? It appears to rely on two premises: that Russia is behind the email hack and that WikiLeaks is a bad organization for releasing the information it releases. Note that Rubio doesn't say that this particular email hack is out of bounds, but rather that any issue raised as a result of a WikiLeaks release is. That's a hefty barrel of sand in which to put one's head in such a proactive fashion, and it presupposes that WikiLeaks' releases in the past, present, and future have not involved anything of the public interest which politicians and public servants should be talking about and/or addressing.
Time Magazine once said WikiLeaks "could become the most important journalistic tool since the Freedom of Information Act." Why? Well, because the value in WikiLeaks is that it knows far fewer boundaries than the general media and is willing to release information that would otherwise not see the light of day. That it tends to do so en masse rather than with careful curation is a potential downside, certainly, but would Rubio and these others really have the public not know about the killing of journalists in Iraq, the Chinese arrests of Tibetan dissidents, the Peru oil scandal, and the rest? WikiLeaks is not explicitly anti-American, after all, and it has released information that is absolutely in the public interest and has caused discussions of political importance within our country that would have otherwise been impossible.
Put another way, it's quite easy for Rubio to take this stance in the wake of an email hack that represents a fairly routine political scandal. What has been uncovered in the Podesta leaks is not unimportant, but it also isn't earth-shattering. What if the hack and WikiLeaks leak had instead uncovered that Hillary Clinton had made a specific agreement with the Chinese government to offer them favors in exchange for illegal campaign contributions? Would Rubio's stance hold true, despite the overwhelming importance of such information to American voters. It's hard to imagine that it would.
So, a nuanced approach to what should be reported on the WikiLeaks release makes all the sense in the world. Let's have that discussion. But putting a blanket over any information generated by WikiLeaks as an organization isn't just dumb, it's cutting out an important source of public good from the masses.
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Posted on Techdirt - 21 October 2016 @ 4:37pm
While we cover a lot of silly intellectual property disputes here, none has the potential to upend our society into a circus of hilarious litigious stupidity as much as publicity rights do. This barely-arrived form of intellectual property has been the star of all kinds of legal insanity, with one needing only to note its use by such upstanding denizens of our reality as Lindsay Lohan and the brother of Pablo Escobar. But I have to admit I had reserved a special place in my humor-heart for Harris Faulkner, the Fox News anchor that sued toy-maker Hasbro for making a a hamster figurine that shared her name. Because the sharing of a name isn't sufficient to arise to a publicity rights violation, the IRL-non-hamster-Faulkner had to claim that the ficticious-hamster-Faulkner also borrowed from her physical likeness, an argument which her legal team actually made. As a reminder, here are images of both.
Just to be clear, one of the depicted is an African-American female news anchor, while the other one is a pale-furred hamster with what appears to be a melted turd on its head. Hasbro pointed this out in its response to Faulkner's suit. I just want to hammer this point home: Hasbro had to point to the differences between a human female news anchor and a cartoon hamster in a legal filing before a very real court of these here United States. Because of publicity rights. If your head hasn't hit the desk in frustration yet, don't worry, because the two sides of this lawsuit have settled and Hasbro has agreed to stop producing the toy hamster.
The judge set up future fact-finding about children's opinions about the toy hamster and whether there was real confusion in the marketplace, but that won't happen due to the settlement.
No terms have been released by the parties, but in a joint statement, they say, "The ‘Harris Faulkner’ toy is no longer manufactured or sold by Hasbro. However, since there still may be ‘Harris Faulkner’ toys or packaging with the ‘Harris Faulkner’ name in the stream of commerce, Ms. Faulkner reiterates that she has not endorsed or approved this product."
Now, it certainly sounds like Hasbro decided that the legal action brought against it by IRL-Faulkner was entirely too much of a pain in its corporate ass compared with whatever revenue was being generated by hamster-Faulkner. But just the fact that this wasn't laughed immediately out of court is a canary in the mine of our sanity when it comes to publicity rights. This will only get worse, I fear, particularly in a country where the cult of celebrity grows at a pace that should terrify us all.
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Posted on Techdirt - 21 October 2016 @ 2:43pm
As we are quite likely in some kind of golden age for pure snark, a golden age probably in part super-charged by these here internets, it would be nice if the general public likewise had a firm grasp on the protections afforded to us by free speech rights to partake in parody and mockery. Sadly, too often the targets of such parody would rather try to silence speech than address what might be legitimate concerns. But it's when government does so that any forgiveness for this should end, as government should be particularly aware both about the free speech rights in place regarding parody and of the consequences of trying to silence criticism in any sort of ham-fisted manner.
Which brings us to the city government of Atlanta, Georgia, which appears to be trying to apply trademark law to harass a comedian whose "City of Atlanta" parody page uses a city logo, with predictably laughable results. This episode started when Ben Palmer, a local comedian, became frustrated at the machinations of city government and started a parody Facebook page, adorning it with one of the city's official seals.
Palmer started the fake City of Atlanta Facebook page when he became frustrated with numerous parking tickets, run-ins with city officials, and a lack of funds. The page uses an official city seal Palmer admits he copied from the city's Parks and Recs page. The city of Atlanta was not amused by the copyright infringement.
"The First Amendment allows people to express their opinions concerning their government in many ways, including satire. However, no person has the right to use a trademark in a manner that deceives or confuses the public," a city spokesperson said in a statement to 11Alive.
Except, of course, that's not actually true. First, there's no real deception to be taken into account here; the page is clearly parody. It is far more clear in its purpose, in fact, than many other sites on the internet, some of which can fool even Presidential campaigns. And, in the employment of this sort of parody, a satirist is allowed to use otherwise protected intellectual property. Given the entire point of the First Amendment, this must be particularly the case in the scenario of a citizen's right to criticize his or her government.
But because the city's target here is a comedian, Palmer modified the logo in a hilarious way in an effort to appease the government.
I'm sure everyone's happy now, right? But, in an effort to further thumb his nose at the Atlanta government, Palmer agreed to remove the logo entirely upon the meeting of certain demands he has outlined.
I read the news that the city of Atlanta would like me to discontinue using their logo. I will remove the logo from the page and discontinue posting as "City of Atlanta" in exchange for the following:
This is my final offer. Thank you.
- All of my parking and traffic tickets are absolved
- $60 cash
- 2 free rides on the trolley
Seems reasonable. Not as reasonable as, say, a government simply letting free speech run its course and potentially paying attention to the criticism within parody to address citizen concerns. But that appears to be asking way too much.
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Posted on Techdirt - 18 October 2016 @ 11:46am
You'll recall that we recently commented on the NFL's new dumb social media policy for its member teams, which outlines how much video content a team can push out as kickoff approaches (less than before), what type of video content from games teams can produce and distribute on their own (basically none), and the size of the fines if teams violate this policy (huuuuuge). The NFL has insisted elsewhere that this one-size-fits-all marketing approach has zilch to do with its precipitous ratings decline, although few believe it on this point. And, even as news of the policy has been released, the NFL itself has been inclined to push out as much of this very same content itself, centralizing its social media media control.
So, if you're an NFL team that doesn't like the new policy and wants to make its fans aware of how silly it is in the most hilarious way possible, what do you do? Well, if you're the Cleveland Browns and the Philadelphia Eagles, you push out Twitter updates to your followers that depict game highlights using plastic figurines. Here is how the Browns alerted their fans that their team had scored a touchdown.
And here is how the Eagles notified their Twitter followers of an in-game interception.
One wonders exactly how quickly the NFL's policy will be updated to include fines for snarkily shitting on that same policy. I imagine it will come quickly, because the NFL has not shown a propensity for having a sense of humor. Meanwhile, this should highlight exactly why the policy is so silly. Here we have creative, snarky, funny social media folks at these NFL teams whose talents are being wasted due to a top-down marketing approach from a league office that is overseeing the first ratings decline for the NFL in decades.
How in the world does that make any sense?
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Posted on Techdirt - 17 October 2016 @ 4:34pm
Sexting continues to be a thing. And, as we have covered various stories revolving around people sending pictures of their naughty bits to one another, much of the consternation in the public tends to be around children partaking in sexting. And I can see their point. While I tend to laugh at prudishness in general, it would probably be best for all involved if underage youngsters weren't texting each other provocative pictures of themselves with reckless abandon.
So what is a parent to do if their children are found to be doing just that? One might think that going to both the child's school and authorities to ask for help in stopping this behavior would be in order, right? Well, for one parent in Australia, doing just that landed him a conviction for child pornography and sex offender registration, even as essentially the entire legal system acknowledged that he was just trying to be a good father.
A man who found out that his 15-year-old stepdaughter was sexting her boyfriend proceeded to download the evidence to bring it to the school and the police to ask them to intervene. Oh dear, readers. You know where this is heading. Intervene they did. Now the dad has been convicted on child pornography charges and placed on the sex offender registry. This, despite the judge understanding exactly why the man, Ashan Ortell, 57, held onto the images.
"There is no suggestion of any exploitation of them by anybody," ruled Judge Jane Patrick, over in Australia, which is becoming as daffy as the United States. "You made no attempt to conceal the images. In fact, you were so concerned that you contacted the authorities about the images."
And then the judge proceeded to levy the conviction for child pornography upon Ortell. Why? Well, because Ortell made copies of the images he'd found his stepdaughter sending around on a USB stick and brought them to the school and police. The police apparently warned him to delete the images or risk prosecution, before reportedly failing to do much at all to address the behavior about which Ortell was concerned. Because of that, he kept the images, ostensibly so that he could address the behavior with other parties that might help him intervene. And that's when he was prosecuted for child pornography.
Let's be clear here: everyone agrees that Ortell did not keep the images for lewd reasons. There is a complete consensus, up to and including the judge who convicted him, that Ortell is merely a concerned parent attempting to do the right thing. Yet here we are. Legal systems routinely take intention into account with regards to charges, prosecutions, and rulings. Yet that failed to happen here, because context and nuance go right out the window when it comes to certain topics that have been overhyped in the public discourse as some kind of impending doomsday. Sexting amongst children is one of those topics.
Need more proof? The local police department has reached out to parents as a result of this whole fiasco with advice that wouldn't have helped in this case.
The ridiculous advice the Victoria police are giving to parents in the wake of this case is: Talk to your children about sexting "and encourage them not to communicate with people they don't know."
Well, okay. How would that have helped? The girl was definitely communicating with someone she did know: her boyfriend. I'm also guessing that talking to your kids about sexting is like talking to them about abstinence. A few may pay heed, but many won't.
The fact that sexualized pictures of "children" (anyone under 18 qualifies in federal child porn statues) are rampant and often consensual should somehow be reflected in the laws. Instead, low-level sex offenses are becoming the low-level drug offenses of this century: Something we overreact to in a charade of concern and, in the process, turn decent people into criminals.
Child pornography is not an issue to be taken lightly, to be sure, but making a mockery of the public's concern by convicting a well-meaning parent isn't the answer to anything at all.
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Posted on Techdirt - 14 October 2016 @ 8:23am
Let's jump right into this, because this post is going to be a bit on the wonky side. It's presidential silly season, as we have said before, and this iteration of it is particularly bad, like a dumpster fire that suddenly has a thousand gallons of gasoline dropped onto it from a crop-duster flown by a blind zombie. Which, of course, makes it quite fascinating to watch for those of us with an independent persuasion. Chiefly interesting for myself is watching how the polls shift and change with each landmark on this sad, sad journey. It makes poll aggregating groups, such as the excellent Project FiveThirtyEight, quite useful in getting a ten-thousand foot view as to how the public is reacting to the news of the day.
But sites like that obviously rely on individual polls in order to generate their aggregate outlooks, which makes understanding, at least at a high level, just how these political polls get their results interesting as well. And, if you watch these things like I do, you have probably been curious about one particular poll, the U.S.C. Dornsife/Los Angeles Times Daybreak poll, commonly shortened to the USC/LAT poll, which has consistently put out results on the Presidential race that differ significantly from other major polls. That difference has generally amounted to wider support for Donald Trump in the race, with specific differences in support for Trump among certain demographics. To the credit of those that run the poll, they have been exceptionally transparent about how they generate their numbers, which led the New York Times to dig in and try to figure out the reason for the skewed results. It seems an answer was found and it's gloriously absurd.
There is a 19-year-old black man in Illinois who has no idea of the role he is playing in this election. He is sure he is going to vote for Donald Trump. Despite falling behind by double digits in some national surveys, Mr. Trump has generally led in the USC/LAT poll. He held the lead for a full month until Wednesday, when Hillary Clinton took the nominal lead. Our Trump-supporting friend in Illinois is a surprisingly big part of the reason. In some polls, he's weighted as much as 30 times more than the average respondent, and as much as 300 times more than the least-weighted respondent.
Alone, he has been enough to put Mr. Trump in double digits of support among black voters. He can improve Mr. Trump's margin by 1 point in the national survey, even though he is one of around 3,000 panelists.
So, how does one person manage to skew a major national political poll in favor of one candidate to the tune of entire percentage points? Well, it turns out that a confluence of factors that include who is included on the poll and how often, how the poll respondents are weighted, and how this one particular voter fits into the demographic weighting converged to pretty much mess everything up. Let's start with the weighting.
The USC/LAT poll does things a bit differently than the other national polls. All polls rate respondents by demographics to correct for voting tendencies. The math can get gory and the NYT post does a good job of going through it, but you can think of it like this, for a very imprecise example: a poll respondent from the 18-35 demographic will be weighted less than a respondent from the 36-55 demographic, because the latter demo is more likely to actually show up and vote than the former. There is indeed some subjectivity in this, but the large demographic weighting drives the error margin down for the most part. But the USC/LAT poll deviates from the large-demo weighting and instead weights at very small demographic levels.
The USC/LAT poll weights for many tiny categories: like 18-21 year old men, which the USC/LAT poll estimates make up around 3.3 percent of the adult citizen population. Weighting simply for 18-21 year olds would be pretty bold for a political survey; 18-21 year old men is really unusual...When you start considering the competing demands across multiple categories, it can quickly become necessary to give an astonishing amount of extra weight to particularly underrepresented voters -- like 18-21 year old black men.
Which is how our single friend in Illinois became the poll's most weighted voter, being a 19 year old black man. The heavy weighting on tiny demographic categories caught him several times and, since he is voting for Trump, despite his demographic generally not voting for Trump, his heavily-weighted response skews things wildly. But that isn't all.
The USC/LAT poll does something else that's really unusual: it weights the sample according to how people said they voted in the 2012 election. The big problem is that people don't report their past vote very accurately. They tend to over-report three things: voting, voting for the winner and voting for some other candidate. They underreport voting for the loser. By emphasizing past vote, they might significantly underweight those who claim to have voted for Mr. Obama and give much more weight to people who say they didn't vote.
Which, again, catches our friend from Illinois. At nineteen, he obviously didn't vote in the last election. So his response is weighted even more. Using the poll's own data, the New York Times re-ran the poll using the same broad categories most other major polls used. When done, Hillary Clinton led in every single one of the iterations except for the one immediately proceeding the GOP convention. The difference between the poll's results as reported and what they would be with the normal weighted categories and the omission of the past vote weighting ranged form 1-4 points. In a political poll, that's enormous.
The final factor here is that the USC/LAT poll is a panel poll, which means that the same respondents are used each time the poll is run. So, our young black trump-voting man from Illinois got to skew these results nearly each and every time. The one time he failed to respond to the poll, Hillary Clinton suddenly led within it. As the NYT notes:
The USC/LAT poll had terrible luck: the single most overweighted person in the survey was unrepresentative of his demographic group. The people running the poll basically got stuck at the extreme of the added variance.
And, of course, the poll aggregators might include this poll, skewing the aggregate numbers as well. This isn't to say that all polls are skewed in the same manner. They aren't. The reason this is a story is because this poll is the outlier. But it is kind of fun to see how badly the sausage can be made if the methodology isn't in tune.
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Posted on Techdirt - 12 October 2016 @ 1:01pm
We had just discussed the NFL's strange edict to its member teams to significantly scale back the amount of video content they were sharing from NFL games, particularly during lead-ups to kickoff. As the news came out alongside some fairly significant reports of ratings drops for the NFL, many, including this writer, assumed that the NFL thought that such video content was a factor in the viewership decline. The NFL, meanwhile, denied this, instead claiming that the ratings drops had more to do with the election season, noting how many people were busily watching Presidential debates, with many of us watching whatever car-wreck zombie-apocalypse our political discourse has devolved into.
Whether that's true or not, it certainly seems as though the NFL itself does not think of video content and social media as some kind of enemy to ratings after all. Over this past weekend, immediately after its edict to its teams went out, the NFL was pushing even more video content out via social media than it had in the past.
If the league is panicking about the distribution of highlights on social media cutting into ratings, though, no one told their social-media managers, because pretty much every major play in an NFL game yesterday was posted almost immediately to the league’s Twitter account, often with preroll ads attached.
Ok, so what do we make of this? Well, as with many things to do with the NFL, the takeaways are both good and bad. The good is that the NFL clearly understands that video content blackouts are a thing of the past and that such content is a great driver for ratings, and not the opposite. But the bad is that the NFL seems to think that a top-down approach to controlling such content is the best approach to targeting viewers.
And that's just dumb. Not only dumb, in fact, but demonstrably silly. As I mentioned in the original post, the markets that host NFL teams are wildly diverse, from major markets like New York and Chicago -- and now Los Angeles --, to relatively tiny markets like Green Bay and Charlotte. A one-size-fits-all marketing approach never made sense for NFL teams, but before the days of digital media there wasn't a great deal in terms of diversity that could be achieved. But in the social media age? Marketing can be targeted and approached in a way tailored to specific fan-bases and markets. Why in the world would the NFL think that it had a better handle than each individual team, all of which employ their own social media managers, as to how to best drive viewership and attendance?
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Posted on Techdirt - 11 October 2016 @ 11:03pm
I will occasionally have someone suggest to me that we don't cover enough good or positive news about intellectual property disputes here at Techdirt, and I know our other writers occasionally hear that as well. I think it's probably not as true as those folks think it is, but certainly we talk about the problems in the IP realm more than when courts and businesses get it right. Still, it's a good idea to highlight that the entire collective world isn't insane on these kinds of issues.
Which brings us to a trademark dispute in New Zealand, brought by credit card company MasterCard against a sporting event. And the dispute itself is certainly laughable.
MasterCard International Inc challenged the colour and words of the 2017 World Masters Games, to be held in Auckland, claiming it was too similar to its own logo. MasterCard argued the event's name and logo was "likely to deceive or cause confusion" and was too similar to the credit card company's name and logo. World Masters Games disagreed. World Masters Games said there was no confusion, or even allegations of confusion, despite the parties' respective marks co-existing in new Zealand since at least March 2014.
Yes, while both MasterCard's logo and the logo for World Masters Games almost share a word in common, that obviously isn't enough to amount to anything remotely resembling trademark infringement. Instead, the real focus was on that common word and its use in the logos for each company, with MasterCard insisting that those logos were so similar that customers would be confused. And here are the logos in question.
One wonders if there is a gas leak in the legal department at MasterCard HQ. Because there is nothing in those logos that would mislead a drunken chimp, never mind a human being. Yet MasterCard moved forward with challenging the trademark application for World Masters Games, because trademark bullying knows no limits. The Intellectual Property Office of New Zealand, fortunately, essentially laughed this out of the trademark office.
However, the Intellectual Property Office of New Zealand ruled MasterCard had no grounds to oppose and allowed the registration of 2017 World Master Games' logo. In her decision, Trade Marks assistant commissioner Natasha Alley said the opposed mark – that of World Masters Games – was "visually, aurally and conceptually dissimilar to the MasterCard word marks".
"They convey very different ideas and look and sound different."
That's a more polite way of saying, "Why in the world are you even here bothering us with this?" Good on the IP office of New Zealand for getting this exactly correct.
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Posted on Techdirt - 11 October 2016 @ 2:47pm
It's been a time of remarkable progress of late when it comes to professional sports organizations being smart about how to pursue viewers in this here digital era. Major athletic institutions are finally opening up the door to wider streaming options, putting aside the doomsayers. Add to that that other leagues are starting to realize what a boon Major League Baseball's Advanced Media product has been to viewership and attendance and it seemed like we were on the precipice of a golden age in digital sports media.
Leave it to the NFL to ensure that we take at least one step backwards. What once seemed like a never ending funnel of money and upward trending viewership, the NFL has undergone something of a ratings correction as of late. It seems that amidst the controversy over head injury, bad officiating, the contraction of one-day fantasy football, and what some think is a generally declining quality of the on-field product, less people are watching games, both in person and on television. This had to happen at some point, if for no other reason than because NFL ratings over the past 2 decades were completely boffo. But the NFL's choice to combat this inevitable decline takes a page from the days we finally just got over.
We’ve obtained a memo that went out to all 32 teams reflecting that, starting Oct. 12, clubs are subject to a new fine schedule for exceeding the limits on video and any moving content. Those are particularly strict during the 60 minutes leading up to games, and through games, with clubs largely limited to re-posting from the NFL’s own accounts (with some allowance for approved content on Snapchat). The memo says that first-time offenders will be fined up to $25,000, a second offense will warrant a fine of up to $50,000, and a third offense will merit a fine of up to $100,000 and loss of rights to post league-controlled content.
This is flat out dumb for a number of reasons. To start, a top-down control over how teams choose to market their product breeds rigidity. Rules applied both to a market like New York and Green Bay are going to be flawed almost by definition, as those markets are completely different and the tactics needed to attract fans simply aren't the same.
But the larger idea of blacking out or setting limits on social media video content as a way to increase viewership is both a misunderstanding of how such content is viewed and shared, as well as a misunderstanding as to its wider effects on audience numbers. Simply nobody is watching highlights of video on an NFL team's social media account in lieu of watching the game live. That isn't the point of those highlights. Rather, the point is to attract, through the sharing of the video, new viewers who perhaps weren't initially interested in watching the game.
It's what makes MLBAM so powerful. I'm not perusing Twitter to get my live game action, but I sure as hell will switch over to a game in progress, or one upcoming, should some video content give me a compelling reason, whether it's a pitcher throwing a no-hitter, a batter one hit away from the cycle, or some on-field altercation that ratchets up the intensity level. I'm a baseball fan; I live for that stuff. And having a team try to lure me to their broadcast, which I can likewise access via the excellent MLB.tv service, is a brilliant piece of marketing.
Marketing that the NFL, normally smart in its business practices, has decided to forego. Television blackouts of old have become social media blackouts today, and for no good reason.
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Posted on Techdirt - 7 October 2016 @ 3:22am
We talk a great deal on Techdirt about the importance of free speech alongside the importance of not damning technological tools for the way third parties choose to use them. These matters can delve into minutiae in the American and Western forms of this conversation, with discussions about Section 230 protections and the like. But in other parts of the world, the conversation is much different.
Back in 2008 in Iran, for instance, the government there elected to imprison a Canadian resident of Iranian lineage, initially under a death sentence, but later commuting that sentence to mere life imprisonment. His crime? Saeed Malekpour created some open source code for sharing photos on the internet that others within Iran used for pornography.
Saeed was living in Canada as a permanent resident before he embarked on what was supposed to be a short trip to Iran in October 2008. While visiting his father in Iran, authorities decided to target Malekpour for his open source software program that others had used to upload pornographic images to the Internet.
His story is one of many that exemplify the fear Iranian authorities use to control the nation's Internet space. Saeed was charged with threatening the nation's Islamic ideals and national security via propaganda against the system, but evidence against him was scant. He spent time in solitary confinement and gave forced confessions — widely publicized on national television in 2010 — that were extracted under torture, including beatings, electrocution and threats of rape.
This follows the Iranian tradition of tamping down on the freedom and outcry of its own citizens by making examples of others. The guilt or innocence of these others is hardly relevant to this practice. In the case of Saeed, the target was the sharing tool, not the porn that others might have used it for. It's no mistake that Saeed's arrest came directly in the wake of the Iranian government's 2008 legislation blitz aimed at curtailing a free and open internet presence within its borders.
While groups like the EFF have been calling for his release for some time now, they are also currently running a campaign to help him through a letter-writing blitz targeted at Canadian Prime Minister Justin Trudeau. On Tuesday, the anniversary of Saeed's arrest, #FreeSaeed made its way around Twitter.
For those of us who believe in not only a free and open internet, but in the freedom to create and evolve digital tools -- without having to fear being targeted for the actions of others, particularly for benign actions like pornography -- it's a cause worth joining.
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Posted on Techdirt - 6 October 2016 @ 11:55pm
While we'll try to keep the grave-dancing at a minimum, it wasn't difficult to see this coming. Game publisher Digital Homicide has something of a history of lashing out against any negative reviews it might receive, of which there are many. Whether it is more high profile targets like well-followed YouTube game reviewers, or merely lowly Steam customers that offered reviews of Digital Homicide games, the company has taken to simply suing everyone for all the things as its reaction. It seemed easy to recognize that this was not a winning business strategy in general, but when Steam reacted to the latest attempts at litigation by simply dropping all Digital Homicide games from its store, things clearly became dire for the company.
And now the story comes to a close with a conclusion pretty much everyone saw coming: Digital Homicide has filed a motion to dismiss its lawsuit against those Steam customers, declaring the company to be financially ruined and unable to move forward with the litigation.
Speaking with TechRaptor, Digital Homicide’s James Romine explained that Valve’s decision to remove all of the studio’s games from Steam is what did them in:
“The case dismissal was only due to financial reasons caused by the removal of our games. I believe the case was very solid. There were in excess of 140 false statements by the 11 Steam users, tens of thousands of posts harassing myself and my customers, three direct interference with written contracts with third parties by Steam users (some of which were competitors), and much more. A combined in excess of 25 reports were filed against the worst users of the 11 with no resolutions being found.”
Well, you know, maybe if you hadn't attacked Steam customers on the basis of leaving bad reviews for your games, this wouldn't have happened. It's important to recognize, as I mentioned in an earlier post, that even though Romine talks a great deal about the vile vitriol some folks have harried his company with, the lawsuits come down to bad reviews. Suing those that leave negative reviews of your product isn't so much a business strategy as it is an attempt at business suicide, a lesson that appears to have been taught to completion to Digital Homicide.
The filing itself claims not only that Romine's business is "destroyed", but that he had sought out a local sheriff initially for help building a criminal case against the Steam users. Also, Digital Homicide would like a refund on its court filing fee.
One can only hope that other businesses will learn from this and not react to negative reviews by torpedoing their businesses through similar litigation.
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Posted on Techdirt - 6 October 2016 @ 3:25am
Confession time: I think memes generally suck. Yes, yes, I know you love them, but when I think of memes, I tend to think of political memes on Facebook that I then have to drop Snopes.com links into the comments on, stupid copyright trolling over them, and that time Axl Rose tried to DMCA a meme so that nobody would see that he dipped into the chocolate fudge too much recently.
Which is why I'm going to move to Indonesia, where the government has decided it's time to put a strict control policy on any memes it finds offensive, embarrassing or that incite fear.
Its Electronic Information and Transactions Law (ITE) punishes any electronic media communication that incites fear or embarrassment under its defamation article. The public has continuously called for the article's removal, but instead Indonesia is introducing more restrictions to freedom of expression. Posting memes, texts, pictures, or videos would be punishable if found to have a defamatory or slanderous tone.
And, hey, what could possibly go wrong? After all, nobody actually wants to defend memes that incite fear, or are defamatory or slanderous, do they? And nobody wants to be embarrassed, right? Well, as per usual when it comes to censorship codified in law, the devil is in the nearly complete lack of details.
According to the Indonesian government, this provision stands to prevent and control cyberbullying. But it can further be used as a political tool against opposition during elections. Citizens reproach this act, as there are no clear rules that define what is considered offensive. The government decides and is often ambiguous about it.
Since its implementation in 2008, 200 people have been prosecuted according to data from the Southeast Asia Freedom of Expression Network. Among the most notable cases, was the prosecution of Prita Mulyasari in 2009 for complaining about Omni International Hospital services on an online mailing list.
In other words, by crafting the law in about the most ambiguous manner possible, the Indonesian government can simply make up on the spot what it considers offensive, defamatory, and all the rest. This inoculates them against memes as a political tool. And the idea of a complete dearth of political memes sounds like heaven, except that a government that would ban them is exactly the kind of target for which they would be appropriate.
Dressing up censorship in language to do with stopping offense and fear is an age-old tactic, one that those of us that believe in free speech should not let stand in any corner of the world. Free the meme, Indonesia!
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Posted on Techdirt - 5 October 2016 @ 11:23pm
Readers of this site should know by now that, as a general rule, DRM is equal parts dumb and ineffective. What in theory is a way for game publishers to stave off piracy typically instead amounts to a grand digital method for making sure legitimate customers can't play the games they buy. Now, not all DRM is created equally shitty, of course -- one of the more benign forms of DRM is Valve's Steam platform. Because games purchased on the platform check in with Steam servers for product keys and otherwise encrypts the individual files for the game each user downloads, it's a form of DRM.
And because DRM is almost always annoying even at its best, there are some gamers who will only buy DRM-free games. Many Kickstarter campaigns for video games, in fact, explicitly state that backers and non-backers will have a DRM-free option for the game available, either through platforms like GOG and HumbleBundle, or directly from the developer. Duke Grabowski, Mighty Swashbuckler! was one such game, with developer Venture Moon Industries promising both a Steam release and a DRM-free release when it collected funds from backers. Then, suddenly, once the company got a publisher on board for the project, it announced that the game would only be available on Steam.
During the campaign, DRM-free copies of Duke Grabowski were promised to backers. Of course, most people expected this promise to be honored. As of yesterday, the publisher the developers have lined up told them this no longer is the case. The whole DRM-free thing has been thrown out the proverbial window and only Steam keys are being offered. Understandably, the comments section on Kickstarter is in an uproar.
The reaction has been almost universally negative, with nearly every commentor speaking out against the decision. Several backers are demanding a refund because they only backed it because DRM-free was promised. Instead of getting militant, a few backers have decided it best to petition the publisher to honor the original promises. One has even written up a template to send toDukeGrabowski@gmail.com.
Well, yes, the reaction from those who have paid for a product, even if it's a pre-payment in the form of a Kickstarter pledge, will tend to be negative when promised iterations of the game are suddenly yanked away without warning or recourse. Everyone seems to agree that publisher Alliance Digital Media was the one behind the decision, but to the end customer that makes little difference. If a developer promises a DRM-free version of its game to backers, then that developer had damned well better make sure the publisher they select is on board with that as well. Otherwise, it was a promise made without the commitment to keeping it.
As it turns out, this particular story has a happy ending, with the developer announcing on Kickstarter that the DRM-free version of the game has been promised again.
Good news! Alliance has told me that they are planning on releasing a DRM-free version of the game before the end of the year, and that more details will be coming soon. So thank you for your patience and understanding.
Which is, you know, fine, but with Kickstarter becoming a major vehicle for funding the creation of new gaming content, this kind of thing needs to get ironed out now. Because backers aren't going to keep backing without some level of trust that promises made to slurp their money from them will be kept, preferably without them having to light the torches and dig up their pitchforks.
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