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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.

https://www.smashwords.com/books/view/112205

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Posted on Techdirt - 7 December 2018 @ 3:42pm

The Emmys People Are Opposing A Pet Products Company Named After A Dog Named 'Emmy'

from the woof dept

In the pantheon of dumb trademark disputes, you would probably expect there to be some correlation between the volume or level of dumb of a dispute and the involvement of a member of the entertainment industry. Without having any hard data in front of me, I still feel quite comfortable stating that this expectation is almost certainly correct. The entertainment industries are notoriously protective of all things intellectual property, after all. Still, sometimes you run across a dispute that is so silly it takes your breath away.

Meet Kevin Rizer. Kevin owns a pet products company in Texas. When he named his company, he drew inspiration from his own furry, four-legged friend, his cancer-surviving dog, whose name is Emmy. Thus, Emmy's Best was created to make pet products, and, damn it, you already know where this is going, don't you?

Last February, Rizer filed for a trademark for Emmy’s Best. That’s when he said the National Academy of Television Arts and Sciences pushed back. NATAS, the organization behind the Emmy Awards, claimed the trademark would confuse consumers, according to Rizer.

“They don’t think people can tell the difference between a pet products company…. and what they do… which is give out awards,” Rizer said.

It should go without saying that this trademark opposition from NATAS is ridiculous. The two companies aren't remotely in the same marketplace, never mind competing with one another. On that same level, it's a stretch to suggest that any member of the public is going to go shopping for their beloved pets and suddenly find themselves confused into thinking that the Emmy awards are somehow involved. Despite this, Rizer tried to reason with NATAS, going so far as to offer to drop the trademark application entirely. NATAS, however, says this isn't enough and is demanding that Rizer's business name be changed entirely.

Its reasoning? Well, Emmy the dog was given that name because Rizer at one point wanted to win an Emmy. Seriously, NATAS, highlights this "About Us" page on Emmy's Best's website as evidence.

I had always wanted an Emmy, but not this one. You see, I was a struggling television director/producer when this white bundle of a fur ball came into my life. Having always wanted to win an Emmy award, a friend recommended that I name my new puppy Emmy. Eight years later, there is still only one Emmy in my life, and I wouldn't have it any other way. This white labrador retriever-human mix has brought more joy, satisfaction and companionship into my life than any shiny statue ever could. It is with great pride that Emmy's Best Premium Pet Products was born, and bears my Emmy's name.

With that ammunition, NATAS claims the name must be changed.

“Emmy has been the premier mark of excellence in television for seven decades,” wrote Paul Pillitteri, the senior vice president of communications for NATAS. “Emmy’s Best cites this legacy as its inspiration for copying the famous Emmy trademark.”

“EMMY® has been the premier mark of excellence in television for seven decades. Emmy’s Best cites this legacy as its inspiration for copying the famous EMMY trademark. We are actively and generously seeking an agreement that allows the company to continue to grow without infringing this iconic trademark.”

It's hard to imagine a better example of big versus small trademark bullying at work, particularly as Emmy is now waging a third battle with cancer and may not live through the rest of the year. Emmy's owners, meanwhile, are locked into a stupid trademark battle just because NATAS wants to play the unreasonable bully.

Real good look for the entertainment industry, guys.

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Posted on Techdirt - 6 December 2018 @ 6:52pm

Nintendo Attempts To Bottle The Leak Genie With Copyright Strikes

from the smash-the-leaks dept

A cursory review of our posts on Nintendo will reveal a company all too willing to wield intellectual property purely as a way to combat anything it doesn't like. The gaming giant jealously protects its IP, sure, but it also deploys its lawyers for such purposes as scaring the shit out of ROM sites, silencing YouTubers, shutting down fan-games from its biggest fans, and holding its consoles hostage unless customers agree to updated EULAs. Outside of Nintendo, many groups have tried to use copyright laws and the DMCA to combat leaks about content, or the content itself. This is rarely a good idea, what with the opportunity to use such leaks as free promotional material being an option instead.

Well, as you may have heard, Nintendo suffered its own high-profile leak recently, with the forthcoming Super Smash Bros. Ultimate finding its way onto the internet before the game has even been released. As you would expect, Nintendo got its lawyers busy firing off DMCA notices for all kinds of sites that were hosting the actual game that leaked. It also, however, decided to issue copyright strikes on YouTubers who showed any of the games content.

The YouTuber named Crunchii has been uploading new remixes from Super Smash Bros. Ultimate to his channel over the past few days, which has drawn the ire of Nintendo. Crunchii's channel has been hit with copyright strikes from Nintendo of America, which has caused him to be locked out of his account and will result in its termination over the next few weeks.

There is also a YouTuber named Dystifyzer, who also posted songs from Super Smash Bros. Ultimate's soundtrack. He too has been hit with numerous copyright strikes from Nintendo and is expecting his YouTube channel to be gone by next week.

This is stupid on so, so many levels. First, combating leaks with copyright notices rarely works at all, never mind well. Once the bell has been rung on the internet, it's nearly impossible to fully unring it. On top of that, going after YouTubers that are simply showing off the leaked product really only makes a ton of sense if you don't have a ton of confidence in the quality of that product. If you believe the product is awesome, you should want it shown off, even prior to release. Hell, maybe especially just prior to release, as a way to hype the game even further and push more sales.

It's worth noting both that pretty much everyone showing off this leaked content was expecting Nintendo to freak out over it, and that the leaked content itself isn't terribly compelling.

The sad thing is that the leaked content from Super Smash Bros. Ultimate hasn't been all that exciting – it's mostly new music tracks and some new facets of the World of Light mode. There haven't been any secret unannounced characters hiding in the code of the game that Sakurai was hoping to spring on the fans.

The reason why the World of Light mode doesn't have as many cutscenes as the Subspace Emissary mode is due to how disappointed Sakurai was when all of the lovingly crafted FMV sequences were quickly uploaded to the Internet. The Super Smash Bros. Ultimate leak proves that he was right to reveal everything beforehand, as any secrets would have been spoiled just two weeks before the game was released.

Making it all the more head-scratching that Nintendo is going to these lengths to combat the showing of the leaked content. But, hey, Nintendo is gonna Nintendo, I suppose.

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Posted on Techdirt - 6 December 2018 @ 2:05pm

Cubs, Nationals Launch Another Trademark Opposition Over A 'W' Logo

from the wins-and-losses dept

Back in 2015, we wrote about a really dumb trademark dispute between a financial services firm and two Major League Baseball teams, the Washington Nationals and Chicago Cubs, over the letter "W." This insanity went on for years, with the MLB teams claiming there would be some sort of customer confusion in the public between professional baseball teams and a company that provided money management.

Well, in case you thought that this was insanity of the one-off variety, both baseball clubs are back at it with an opposition for the trademark of Starwood Hotels and Resorts, whose logo is, you guessed it, a "W."

At the end of November, the Nationals and Cubs filed an opposition with the Trademark Trial and Appeal Board against Starwood Hotels & Resorts Worldwide. The Nationals and Cubs are apparently upset with Starwood’s pending trademark application to register “W” in connection with “Entertainment services, namely, planning, conducting and hosting music festivals, concerts and performances by musical groups and individuals.”

Starwood claims to have started using “W” in connection with the aforementioned services as early as January 2005. The Nationals and Cubs could care less. They say that if Starwood gets its wish of registration, then Starwood will be given permission to confuse people into thinking that its services are in some way approved, endorsed or sponsored by the Nationals and/or Cubs.

This is the type of situation that calls for people to recognize the subtle differences and to keep their eye on the ball for trademark law, which is customer confusion. Yes, all three trademarks in question are versions of the letter "W." Yes, all three entities in question are in some segment of the entertainment industry, two being baseball teams and the third wanting to use its trademark for music concerts and performances. That, however, doesn't equate to Starwood's use somehow resulting in public confusion. Just to be clear, this is one of the many iterations of hotel logo we're talking about.

Really makes you think of the Cubs and/or Nationals, right? And, with just a brief moment of thought put into this, it becomes clear that fear of confusion makes no sense. A member of the public is going to go to a Starwood property to see a concert, see the "W" logo, and... what? Think the Cubs are affiliated with the concert? Or maybe the Nationals? Both? These baseball teams are somehow putting on concerts at Starwood properties?

Fortunately, the general consensus appears to be that the MLB teams aren't going to prevail.

This seems like a stretch of a case for the Washington Nationals and Chicago Cubs, since Starwood is very widely known for its “W” brand of hotels and no reasonable person is confusing said hotel brand with the baseball clubs. Further, Starwood already owns trademark registrations for the “W” brand, including one in relation to providing hotel services, food and beverage and bar and cocktail lounge services. Unless the Cubs and Nationals are also going to attempt invalidating those registrations, this new opposition seems half-hearted and destined to fail.

So, strike two?

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Posted on Techdirt - 4 December 2018 @ 8:02pm

Monster Energy Loses Trademark Opposition Against UK Drink Company, But May Have Bullied It To Death Anyway

from the winning-by-losing dept

A review of our stories about Monster Energy's trademark bullying ways might leave some scratching their heads as to why the company continues along these lines at all. After all, any review of those stories will leave one with the impression that Monster Energy seems to lose these trademark oppositions at nearly every turn. So, if that's the case, why continue with this losing streak?

Well, as we've explained previously, winning an opposition or lawsuit is only one of the real goals in trademark bullying. Other goals include making the opposition so painful and expensive so as to either push the victim into unreasonable changes or to simply drain the victim of cash and assets as they attempt to defend themselves. Likewise, such bullying serves as public notice to anyone else that might consider similar actions that would draw the bully's ire, chilling their willingness to do so. In this, Monster Energy's trademark bullying is often quite successful.

An example of this can be found in UK beverage company Thirsty Beasts, which recently won its case against Monster Energy's opposition to its trademark for the second time on appeal.

Dan Smith, from Newbury, created healthy drinks company Thirsty Beasts in 2018, and the US firm filed a legal challenge against him.

It claimed customers would confuse both Mr Smith's slogan - "Rehab the beast" - with its "Unleash the beast" line. The case, which was dismissed, cost Mr Smith more than £30,000 in legal fees. He said he and his wife had ploughed every penny they had into launching the business. After registering his first trademark in the UK in 2016, Mr Smith then filed the Thirsty Beasts logo. Billion-dollar company Monster Energy objected to his application, claiming Mr Smith's slogan was too similar to its own.

The UK Trademark Office ruled in favour of Thirsty Beasts, but Monster Energy appealed the decision.

And Thirsty Beasts won that appeal. The Trademark Office once again reviewed the material provided by the two companies, including the branding, company names, and logos, and rightly decided that there was no customer confusion to be had here. You can read the entire timeline of events for yourself on the company's website, but ultimately this story has a happy ending, right?

Well, again, winning the opposition isn't the only, or perhaps even primary goal, of the trademark bully.

"Financially it has crippled the company," Mr Smith said. He added: "We had savings set aside to boost the product, to do the marketing, to get that one drink out. Now we've burnt all of that, that and more trying to win this. We are two years behind where we want to be."

The entrepreneur now needs to raise £28,000 for a limited launch of the product in spring 2019.

Maybe the Smith family will be able to do that, maybe they won't. And that's the real harm of large corporate trademark bullies like Monster Energy. Even in losing, it might still ultimately win if its victim can't survive in business because of its bullying. And, again, Monster Energy can point to such an outcome should anybody else out there want to take similar innocuous actions.

Trademark bullying works. And on more than one front.

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Posted on Techdirt - 3 December 2018 @ 8:00pm

Schlafly Family Loses Appeal To Block Schlafly Family Member's Brewery's Trademark Application

from the beer-me dept

As you will by now know, trademark bullying ticks me off. In particular, trademark bullying built on ideological grounds rather than any real concern over customer confusion gets my fur up. But when all of the above occurs against a brewery, makers of sweet, sweet beer? Well, that is a bridge too far.

Which is why it is with great pleasure that I can inform you that the greater Schlafly family, famous for its matriarch and puritanical icon Phyllis Schlafly, has lost a trademark opposition against another family member's brewery. This all started when the now late Phyllis Schlafly and her son Bruce Schlafly opposed her nephew Tom Schlafly from trademarking the name of his beer, Schlafly Beer. The opposition itself made zero sense, since Phyllis and Bruce chiefly objected to having their surname associated with the beer, given that Phyllis' reputation was particularly well cultivated with the Mormon and Baptist populations that don't look kindly on alcohol, generally. Successfully opposing the mark, however, wouldn't keep Tom from keeping that name for his beer. Instead, it simply meant that essentially everyone could call their beer Schlafly Beer, compounding the problem. Regardless, the Trademark Office took one look at the opposition and tossed it on obvious grounds, namely that Schlafly is Tom's surname too, and nobody is necessarily going to see Schlafly beer and suddenly think Phyllis took to boozing late in life.

Well, the Schlafly's appealed that decision, even after Phyllis passed away, and now the Federal Circuit Court of Appeals has unanimously ruled in favor of the brewery's right to produce Schlafly Beer.

In a 3-0 decision, the U.S. Federal Circuit Court of Appeals ruled in favor of Saint Louis Brewery LLC, which was co-founded by Schlafly’s nephew Thomas Schlafly, and had applied in 2011 to trademark the Schlafly name.  Circuit Judge Pauline Newman said the name had acquired a “secondary meaning” and “distinctiveness” through sales of Schlafly-branded beer, and that surnames could be trademarked when that occurred. The brewery began selling beer with the Schlafly logo in 1991, and sales had reached 74.8 million cans, bottles and draft servings between 2009 and 2014.

And that should be that for a trademark dispute that really, really never should have made it this far. Trademark law is built on the test of consumer confusion, and opposing a mark for a product already this widely distributed, wherein the person applying for the mark has a totally reasonable claim to the mark -- it's his surname -- is, on its face, not an opposition that cares about confusion. Instead, it was clear from the outset that this was some combination of family strife mixed with puritanical ideology attempting to use trademark law as a vehicle towards an end. The court rightly saw right through this and upheld the dismissal of the opposition.

“This is a huge relief,” Thomas Schlafly, who is also the brewery’s chairman, said in an interview. “It had never occurred to me that my relatives, who had no connection with beer, would oppose a routine trademark.”

Sure, because that opposition was unreasonable. Still, this story happens to end well. I can look forward to toasting the memory of Phyllis Schlafly with an ice-cold can of Schlafly beer.

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Posted on Techdirt - 29 November 2018 @ 9:54pm

Nintendo Shuts Down Its 'Creators' YouTuber Program, Replaces It With Simpler But Still Confusing Guidelines For Streaming

from the request-for-commentary dept

Way back in 2014, after years of waging a prolonged war on let's play streamers and game reviewers, Nintendo introduced a bureaucratic mess of a policy that would eventually become its "Creators Program." After being insanely heavy-handed towards streamers for years, the new program, that would allow for game streaming so long as the program rules were followed, initially was thought to be a major step forward for Nintendo. All too quickly, however, the whole thing devolved into a bureaucratic mess that saw applicants not getting responses to applications, and the revelation that Nintendo had some unethical rules for just how positive about Nintendo's games streamers had to be to remain in the program. Many of the bigger names in streaming simply swore off doing anything with Nintendo games, while others attempted to soldier on until Nintendo suddenly revised the program to essentially ban live-streams, the lifeblood of streamers. That last bit occurred roughly a year ago, rendering confusion and anger at Nintendo in the streaming space.

Well, it seems like Nintendo has realized what a mess all of this had become, as the company has now announced that the Creators Program is now no more, replaced with a much simpler set of guidelines of what will keep streamers on the right side of Nintendo's legal dogs.

The Nintendo Creators Program, launched as an attempt to moderate what folks were doing with the company’s content on YouTube, is closing down next year. In its place is will be a set of guidelines that might have a pretty big impact on the way you watch Nintendo games online.

Three years after its contentious debut, the program will cease operations on March 20, 2019. From a Nintendo statement:

We are ending the Nintendo Creators Program (NCP) to make it easier for content creators to make and monetize videos that contain Nintendo game content. We will no longer ask creators to submit their videos to the NCP, and creators can continue showing their passion for Nintendo by following Nintendo’s guidelines.

And, much to the surprise of your faithful writer, the guidelines are indeed much simpler and, largely, better. You can read the guidelines here in their entirety. And it will only take you a few minutes to do so, as they are blessedly terse. The bureaucracy is largely gone, as is the more heavy-handed oversight by Nintendo from the Creators Program. Instead, streamers are asked to follow a handful of rules to stay in Nintendo's good graces.

Those more interested in streaming their games might find things a bit easier. In 2017 Nintendo brought in some strict rules regarding where and how livestreams of their games could be made as part of the Creators Program, but those are now gone, with the single set of guidelines now covering both pre-recorded content and live broadcasts (across all major sites).

However, this is Nintendo we're talking about, which means it couldn't do all of this with nothing being odd about it. That oddness is in one of the guideline requirements. While gamers in general are getting older as a demographic, it's certainly true that Nintendo fans still skew younger. It's also true of that younger demographic that they are more likely to watch game streams in general and more likely to use those streams to find new games to enjoy.

Which is what makes this requirement a bit odd.

We encourage you to create videos that include your creative input and commentary. Videos and images that contain mere copies of Nintendo Game Content without creative input or commentary are not permitted. You may, however, post gameplay videos and screenshots using Nintendo system features, such as the Capture Button on Nintendo Switch, without additional input or commentary.

Honestly, it's not the biggest deal in the world, but the commentary offered by YouTubers in their game streams tends to carry with it adult language and references. It's rare that a teenager can go out and get commentary-laden game streams that many parents would feel are appropriate for their age. Forcing that commentary into game streams that aren't using Nintendo's video capture system seems likely to deprive young gamers of the game footage they want to help them figure out what to buy without curseword-heavy commentary.

Is that the biggest deal? Nah. Overall, these guidelines are an improvement over the nightmare that was the Creators Program. Still, it would have been nice if Nintendo could have shown it was looking out for its core customer base a bit more.

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Posted on Techdirt - 28 November 2018 @ 11:51pm

Australian Parliament Moves Copyright Amendment Out Of Committee and Into Law

from the concerns?--what-concerns? dept

As we have been discussing over the past few months, Australia has been considering updating its copyright law from one which does site-blocking with judicial oversight to one which does site-blocking, mirror-blocking without judicial oversight, search results blocking, and expands the definition of the types of sites to be blocked from those with the primary "purpose" of infringement to those with the primary "effect" being infringement. These changes came with concerns in tow, both from government officials and tech companies, and it's understandable why. Any time the government looks to lessen its own oversight in the interest of making it easier for corporate interests to censor the internet for the common citizen, it creates a situation practically begging for abuse with the principal effect being dampening the primary purpose of the internet as a communications tool. The concerns raised over this change in the law focused on those very things, while also highlighting how the copyright industries have been touting the site-blocking already in place as a success.

But, as is too often the case, the Australian government has hand-waved those concerns with claims that nebulous "safeguards" are in place to prevent abuse and recommended going ahead with the changes to the law.

Yesterday, the Senate’s Environment and Communications Legislation Committee published the results of its inquiry. Those hoping for an additional dissenting voice will be disappointed.

“The committee is of the view that the amendments proposed by the bill are likely to improve the operation of the injunctive scheme in section 115A of the Copyright Act, and represent a measured and proportionate response to concerns identified by stakeholders in relation to the operation of that scheme,” the report reads. “In this respect, the committee also notes that the majority of submissions received by the committee supported the bill and recommended that it be passed unamended.”

After noting that the expansion for blocking mirror sites without judicial approval could be abused, the committee goes on to say it's all under control.

“[T]he committee is of the view that the measures are appropriately circumscribed. In particular, the committee notes the evidence that the Court would maintain ultimate oversight over these injunctions, as well as the evidence that there must a sufficient nexus between the online location covered by the original injunction and the location to which the order is expanded,” the report reads.

In other words, way back in the distance, the courts are ultimately still in charge of the injunctions, somehow making the fact that the expanded injunctions are approved outside of the court all good. And, on top of that, none of this will be abused because rightsholders will have to rely on good evidence for the expanded injunctions, despite the fact that rightsholders' grasp on what good evidence is has always been laughable. Again, all of this is pitched as a way to get site-blocking in place more speedily, which sets off all the obvious justice alarm bells.

On the search-blocking portion of the amendment, the committee relies on a claim that, essentially, Google is helping people infringe copyright.

Finally, on forcing search engines to purge their results of previously-blocked sites, the Committee again acknowledges objections from those who feel such measures are unnecessary. Again, however, the report dismisses the concerns, noting that search engines may play a role in both infringement and enforcement of copyright so the measures are “appropriate.”

Except that this is nonsense industry drivel, and always has been. Search engines don't play "a role" in infringement. They play a role in returning relevant search results to the public. They're address books, of a kind, and search engines no more play a role in infringing copyright by returning search results than address books play a role in drug use by listing where a flop house might be. If that is what the committee is relying on to approve a copyright amendment with valid opposition and concern, it sure doesn't make one confident in the rest of its assessment.

It was on the back of these nebulous claims of safeguards and shaky claims about how search engines work that the amendment was moved out of committee and quickly passed by the Australian Parliament. And it was announced in a manner that appears designed to irritate those of us who actually know what copyright infringement is and is not.

Announcing the adoption of the amendments by Parliament today, the Government said that the Bill will give rightsholders enhanced ability to fight copyright infringement. Minister for Communications and the Arts Mitch Fifield noted that there will now be “less room” for pirates to circumvent Australia’s existing measures.

“The Government has zero tolerance for online piracy. It is theft, and damaging to our creative economy and local creators. We are committed to protecting Australia’s creative industries and the world-class content we produce every year,” Minister Fifield said. “The passage of our legislation today sends a strong message to online pirates that Australia does not tolerate online theft.”

I actually wouldn't have thought it possible to include the "copyright is theft" fallacy not once, but twice, in a three sentence statement on passing a bill that does nothing to stop theft, but will almost certainly be an avenue for abuse by copyright industry groups that have always been willing to slam open a door after its been cracked an inch. The only silver lining in all of this is the amendment comes with a two year review period, after which the government will have the opportunity to make further changes if such abuses occur.

And they almost certainly will occur, though I would expect the government to perform its same hand-waving trick when those concerns arise two years from now as well.

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Posted on Techdirt - 27 November 2018 @ 9:08pm

Lawyers For Kobe Bryant Tout His Uselessness In Potential Trademark Opposition Fight

from the mamba-number-five dept

Kobe Bryant made his name, and his Black Mamba nickname, playing basketball. Like many athletes, however, he expanded his business reach off the court and into branding. Utilizing the Black Mamba nickname, he entered into all sorts of licensing arrangements, including with Nike, which makes athletic apparel. As far as I can tell, he has no licensing arrangements for health supplements.

And, yet, he has been embroiled in a years-long fight with Hi-Tech Pharmaceuticals, makers of the Black Mamba HYPERRUSH line of diet pills. Aside from the divergent marketplaces, the entire dispute is something of a mess. Hi-Tech applied for its trademark a year before Bryant applied for his own Black Mamba mark, after which Bryant opposed Hi-Tech's application on grounds of customer confusion. Hi-Tech has been battling this out, claiming that Bryant has information that would be helpful to its side of the argument. To that end, they want to depose Bryant, who has thus far refused to hand over documents. Now a motion to compel has been filed, but Bryant's lawyers' strategy for refusing to have him be deposed is essentially to highlight just how useless he would be in a deposition.

Kobe’s lawyer allegedly told the company, “Deposing Kobe Bryant would be like Lil Wayne’s deposition … it would be just like that – he’d just be saying ‘I don’t know, I don’t know, I don’t know.'”

The attorney is referring to an infamous deposition Wayne gave in 2012 where he answered “I don’t recall” to dozens of questions.

The NBA star’s lawyer then told the pharma company if they tried to depose Kobe, they would get a room full of attorneys and “you can try, but it’s never going to happen.”

Instead, Bryant's lawyers are insisting he provide only written responses to questions. Why having Bryant doing his best Donald Trump to Bob Mueller impression is even necessary is anybody's guess. Bryant has all kinds of issues here that are mostly to do with the sequence of the filings and the markets in which both brands are operating. To have this kind of animosity and fight over what is essentially a trademark non-issue seems very strange.

It's not at all clear just what Hi-Tech thinks it can get out of a deposition or the documents it wants from Bryant, but the way this is being pushed for leads one to think there must be something there. I can't imagine Bryant's best course of action here is to continue down this road rather than just dropping his opposition.

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Posted on Techdirt - 26 November 2018 @ 3:58pm

Square Looks To Block Trademark App Of Indie Game Over Game Franchise It Acquired A Decade Ago And Did Nothing With

from the conflict:-trademark-law dept

You will recall that several years back there was a very stupid trademark dispute between Notch, maker of MineCraft, and Bethesda, which owns the rights to the Elder Scrolls franchise. At issue was Notch's new game Scrolls (which has since been retitled Caller's Bane) with Bethesda crying trademark infringement, claiming it owned the trademark rights to basically everything "scrolls." Disappointingly, the whole thing ended in a settlement with Notch getting to keep his game's name but not getting his trademark.

While in that case one could at least lend Bethesda the acknowledgement that Elder Scrolls games are very much still active in the marketplace and haven't become simply methods for retro enjoyment, the same cannot be said of Square's ownership of the Conflict series. And, yet, Square has decided to oppose the trademark application of an indie developer in Malta for its title Conflict Of Nations: World War 3.

Dorado Games recently attempted to trademark Conflict of Nations: World War 3, an online strategy game which released on Steam earlier this year. Quickly thereafter, it received an opposition filing from Square Enix's lawyers, claiming that there "is a clear likelihood of confusion" with the publisher's long-established Conflict franchise. Between 2002 and 2008, Square Enix published six games under the branding, such as Conflict: Desert Storm, and Conflict: Denied Ops.

In a letter to Dorado Games seen by GamesIndustry.biz, Square Enix's lawyers argue that the publisher has been using the trademark for 16 years, and has "educated consumers" to recognise the "Conflict + tagline" pattern.

There's a ton that's misleading in Square's letter. For starters, while there were six games published between 2002 and 2008, Square didn't publish a single one of them. Other publishers did, mostly EIDOS, which Square bought in 2009. In other words, Square acquired the rights to the games, but wasn't responsible for publishing any of them. Likewise, Square itself hasn't been using these trademarks for 16 years, having only acquired them ten years ago. Finally, it can claim that it's "educated" gamers to recognize the naming convention of the games all it wants, but it hasn't created a new game in the franchise for over a decade.

Which is why, along with the fact that the naming convention used by Dorado Games isn't all that similar, concerns about customer confusion in this case don't make a great deal of sense.

Nick Porsche, managing director of Dorado Games, compared the move to Bethesda's "Scrolls trademark calamity".

"Having been in the games industry for 20 years this type of behaviour is exactly the reason we decided to do our own thing - without publishers, based in an island nation with its own jurisdiction," he told GamesIndustry.biz. "It's really ridiculous to which degree the majors are trying to crush anyone within their space, while preventing smaller companies from effectively marketing their products online - even when there is no contextual overlap whatsoever."

What Square will rely on is that the old Conflict series games are still available as retro-titles. But the idea that a single publisher could lock up a word like "Conflict" in the video game industry by continuing to offer decades old games and just sitting on the trademark is insane. Fortunately, the real bar when it comes to trademark law is customer confusion in the marketplace. Unfortunately, most small indie developers don't have the resources to fight court and trademark battles, and typically just bow down before the larger corporations.

It's not clear yet which way Dorado Games will go, but I hope they take this conflict head on.

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Posted on Techdirt - 26 November 2018 @ 12:05pm

Google, Village Roadshow Weigh In On New Search Blocking Amendments To Australian Copyright Law

from the loaves-of-bread dept

As we've been talking about for some time, Australia is set to amend its copyright laws to expand what were site-blocking provisions into search-blocking ones. It's an odd bit of mission creep, as the copyright industries in Australia have at once praised site-blocking as being very effective at curbing piracy while also insisting that search-blocking needs to be done to curb piracy. Despite this, the amendment appears to have broad government support, with the exception of a few detractors. The Australian government is still taking comments about the proposed changes and Google has decided to wade in. As is typical with Google, the arguments it makes are nuanced and careful, whether you agree with them or not.

While Google supports effective industry led measures to fight piracy, Google does not support the proposed amendments foreshadowed in the Extended Site Blocking Bill,” Google writes.

“In particular, Google opposes Section 115(2B)(a)(ii) and (b)(ii) of the Bill, which would have the effect of removing the direct oversight of the Federal Court over the site blocking process and instead leave it to commercial entities to decide which websites Australian users may access.”

Google also notes that the proposal to extend the Site Blocking Scheme to search engines has not been adopted by any other country in the world. Presumably this is because other countries have long recognized that there is no utility in extending site blocking schemes beyond ISPs to other online service providers,” the company writes.

As TorrentFreak notes, that is only kinda sorta true. Russia has recently put in place a search-blocking policy as well, although it is a voluntary program and Google does not currently participate in it. It is true that codifying search-blocking in the way Australia is seeking has not really been done in the past. Given how fast the process for this amendment has and continues to be, and given its extraordinary nature, it's not unreasonable for Google to suggest that everyone pump the brakes and study whether or not any of this is actually necessary or will have an impact on the broader piracy problem.

But the real takeaway from Google's submission and public comments is the detailed, thoughtful analysis in them. Unlike, say, Village Roadshow's response to Google.

“Google say they are up for the fight against piracy. This is a sham,” writes Village Roadshow CEO Graham Burke.

“There [sic] sole interest is using a treasure trove of stolen movies as part of attracting people to a business model that is strengthened by theft. [Google] auto complete and search are used to steal movies. This is no different from stealing a loaf of bread from a 7-11 store.”

So, we have thoughtful analysis of the new law and the need for caution on the one hand, and accusations of convenience store bread-stealing on the other. Were this a just world, this sort of ham-fisted misstatement of the facts of copyright infringement would be enough to torpedo this law.

Instead, it looks like Google will be ordered by law to keep people from stealing internet bread.

Cool.

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Posted on Techdirt - 21 November 2018 @ 1:29pm

Corel Manages To Accuse A Totally Legit Customer Of Piracy

from the oops dept

While piracy and ways to combat it may be weighing heavily on the minds of many a software producer, it's quite unfortunate that more of them don't consider conversely how their anti-piracy efforts will impact their legit customers. You can see this sort of thing all over the place in the software world, most prominently when it comes to DRM, which tends to stop almost no piracy but manages to annoy legit customers.

But DRM isn't the only method out there for combating piracy. Corel came up with a patented approach that detects pirated versions of its software and attempts to get the pirate to pay up.

Earlier this year we reported on Corel’s efforts in this space after the company obtained a patent for a system which is able to offer an amnesty to illegal users via a popup.

“The amnesty offer may, for example, agree not to bring criminal charges in exchange for the user purchasing a legitimate copy of the product,” Corel’s patent reads. “In this manner, the user of the pirated version is given the opportunity to purchase a legitimate copy which, if acted on, increases revenue for the manufacturer.”

It's not the worst strategy in the world, even if it harkens back somewhat to those copyright troll threat letters that have been on the rise for the past few years. Still, if the system can accurately detect a pirated copy of the software, and if the messaging requesting payment isn't too heavy-handed, it's not a bad way to try to reach out to pirates for payment.

But what if it isn't so accurate? And what if legit customers are suddenly told they're pirates? And what if Corel then treats that person with something less than a full mea culpa? This all already happened, of course.

Earlier this week, TorrentFreak was contacted by an angry Corel customer who was witnessing first hand what can happen when a piracy detection system blows a fuse.

“I am a valid and licensed user and Corel support has records of my license key and right to use this software on my work PC,” he told us.

The user got a popup accuses him of using "illegal" software before requesting payment, at a discounted rate no less. His Corel software, used at his place of work, was also disabled. Suddenly, this user couldn't get access to his or her work product, all because Corel's anti-piracy system crapped the bed and called a customer a pirate. After a lengthy back and forth -- the user was unable to operate for at least a full day -- Corel managed to correct the issue, albeit in a manner totally opaque to the end user. The customer has no idea if his software is now correctly licensed, if he got a new license, or if Corel just put him on some whitelist so as not issue more threats.

Oh, and Corel also hasn't bothered to apologize.

“I’m not sure how [the steps Corel took] corrected my license issue or if it just took me off the ‘hit list’ of victims of what I still feel was some kind of scam. Still no apology from Corel for the problems caused or the delays it forced on me,” he added.

Reached for comment, a Corel rep made a great deal of noise about unlicensed resellers causing all of these problems. TorrentFreak went back to the affected user to ask where he had bought his copy of the software. The answer? Corel's website. This was verified by a review of the purchase receipt. After all of this, Corel finally relented and, I suppose as something of an apology, offered the customer a 5% discount on future purchases.

“I want to ask them if that 5% is good for Photoshop,” the customer commented dryly.

And that really should tell you everything you need to know about the dangers of a crappy anti-piracy system annoying your customers.

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Posted on Techdirt - 20 November 2018 @ 3:37pm

SoundCloud Troll Getting DMCA Takedowns Shows The Weakness Of Notice And Takedown Systems

from the dmca-terrorism dept

Much has been written at this point about the problems with various "notice and takedown" policies, including in the DMCA. Much of the problems arise from the DMCA's requirement that service providers "expeditiously" remove infringing material upon notice, which naturally leads to platforms erring on the side of removal versus taking a hard -- and manual -- look at the material in question to see if it's really infringing. This results in all kinds of takedowns of speech that is not infringing, typically as a result of human error, a dispute over the actual ownership of rights, a lack of recognizing fair use, or, perhaps most often, an automated system for sending DMCAs simply screwing up.

But another weakness in the notice and takedown policy is in how much power it places in the hands of trolls and bad actors to simply fuck with people. This can be seen in action in the case of one SoundCloud troll getting all kinds of music taken down by pretending to be a rights holder.

Multiple bass music artists have alleged that their tracks have been removed from SoundCloud for wrongful copyright claims. Working under an account by the name "Dr Egg," an unknown user reportedly made copyright violation claims against multiple artists, which these artists are claiming resulting in the removals. In the SoundCloud platform, uploads can be taken down for copyright violations if SoundCloud receives an email making a claim against the track. A copyright violation occurs when someone uses a sample or part of a song that was already copyrighted by another artist or company. Currently, it only takes one claim to have a track removed and it may be reinstated if the claim is proven false.

According to reply emails from SoundCloud to the artists in question, "Dr Egg" used email addresses that pointed to Moonboy (moonboycreator@outlook.com) and Too Vain(toovain@outlook.com) to make these strikes. The user appears to have falsified Moonboy's (Jaime Madsen) signature and used his name on the copyright infringement claims. Moonboy made a video on Twitter to speak out against the fraud.

That the policy can be weaponized for nihilistic mayhem in this way at all is a clear signal that changes need to be made. That this doesn't happen constantly is not a defense of the policy. Good internet policy is not that which can be easily subverted by impersonating another person, because that happens all the time on the internet. And, when coupled with platforms being incentivized only in the direction of quick takedown of art and speech, that causes a massive speech issue that would make the founding fathers go into a rage.

In this case, SoundCloud did manage to get the uploads in question restored.

A spokesperson on behalf of SoundCloud has responded to EDM.com with the following statement:

"Our takedown notification process is designed to respect copyright, and it is our policy to review all infringement claims per the guidelines outlined in our Help Center. Upon review, we have determined these copyright claims are not valid, and are happy to report we’ve reinstated all affected content."

Which is all well and good, but we still have a problem. And I'm pretty sure the impetus for that problem can be found in the very first line of SoundCloud's statement: "Our takedown notification process is designed to respect copyright...". You may notice that there is no mention of speech and art in the statement at all. This is, again, because all of the incentives in the DMCA's notice and takedown provisions push platforms to favor copyright over art -- which is anathema to the principles of free speech.

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Posted on Techdirt - 19 November 2018 @ 3:34pm

Red Bull Fails To Block Trademark Registration In EU Over Logos That Aren't All That Similar

from the locking-horns dept

While it is by no means the most litigious beverage company ever, Red Bull is not a complete stranger to trademark bullying. The last we heard from the iconic energy drink company, it was making legal arguments over bovines and their castrated status somehow rising to the level of trademark infringement. It seems that Red Bull typically likes to do its bullying during the trademark application status rather than in legal proceedings, but the universe is currently running an experiment to see just how hard and fast a rule this is for the company.

That experiment takes the form of Red Bull attempting, and failing, to oppose the trademark registration for a beverage company called "Big Horn" over the following logos.

Now, the link above is from a site dedicated to "brand protection", so all of the language in the post is of the variety that thinks Red Bull was totally right and the decision against the opposition was wrong. But, come on, how much public confusion is there really going to be over those logos? To be fair to that original post, it points out that Big Horn uses this logo on beverage cans that do call back to Red Bull's, but Red Bull didn't make that argument in its opposition. Instead, it simply argued that the logos were too similar. They're not, even when you try to parse things out with language such as:

Red Bull based its opposition on the registration of the two bulls logo, i.e. without the word Red Bull. If you compare this with the Big Horn logo they are quite similar, given that both depict two animals leaping towards each other with a yellow ball in the background.

"Yellow ball." That's the sun, actually. In the case of the Big Horn logo, it's the sun rising over mountains, which aren't present in Red Bull's logo. And the animals in question are different. As are the color schemes. Not to mention that Big Horn has their big name pasted in big letters over the logo. It makes perfect sense that EUIPO thought that Big Horn had enough of a case if this ever goes to a trademark lawsuit to defend itself, no matter how many citations of EUIPO making the opposite and wrong decision on Red Bull oppositions the original post can make.

So, we'll wait and see if Red Bull actually wants to take this trial. If that happens, I would think that demonstrating real or potential public confusion would be pretty difficult.

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Posted on Techdirt - 16 November 2018 @ 3:39pm

Not Funny: The Conan O'Brien Joke-Stealing Lawsuit Is Still Going On

from the funny-story dept

We've obviously talked about the great deal of harm that a protectionist view of copyright can cause, both in terms of its ability to deny the public useful innovations and its use by the powerful to bully the weak. But one of the harms in protectionism and the ever-expanding culture of ownership that pervades modern life that is less talked about, possibly because it's somewhat obvious, is its sheer ability to bog down individuals in an absurdly lengthy legal process that seems to move at a pace purposefully calibrated to be as frustrating as possible.

A great example of this is the copyright case Conan O'Brien is embroiled in still, all over accusations that he and his writing staff "stole" a handful of jokes from a freelance comedian, who has claimed copyright over them. We first wrote about this case in the first half of 2017, where a judge had greenlit all of this for a jury trial, but the lawsuit itself was actually filed back in 2015. And, incredibly, it's still going on. The clock is still running at three years, with the most recent news being that the court has refused to allow O'Brien's team two affirmative defenses based on the actions of the plaintiff.

The court on Thursday dismissed two of O'Brien's affirmative defenses, one arguing that Kaseberg had committed fraud on the copyright office and the other that he isn't entitled to relief because he withheld relevant documents during discovery and has "unclean hands."

"Even if omission of the Court’s ultimate conclusion that the jokes were entitled only to thin copyright protection were misleading, however, the Court would have to conclude that there was no intent to defraud here," writes Sammartino. "It is undisputed that Plaintiff’s counsel attached a copy of the Court’s full Order to the letter to the Office. Had Plaintiff been attempting to pull a fast one on the Office by misrepresenting the Court’s Order, he would not have provided the Office with a means of verifying that deception."

I would quibble with the court's logic in that, actually. After all, the Copyright Office is not known for its stringent background checking work generally speaking. More generally, how often do we encounter folks making assertions with citations that don't fully support those assertions, as a way to try to bolster their claim under the assumption that nobody is actually going to dissect the citation? That happens all the time.

That said, the ruling isn't blatantly silly. Unlike, say, the fact that O'Brien is still dealing with a lawsuit nearly four years running due to a claim of copyright over a couple of jokes. Anyone that would want to claim that that isn't absurd needs medical care, in my view.

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Posted on Techdirt - 16 November 2018 @ 9:31am

Nintendo Gets Huge Settlement Against ROM Site Probably Just To Scare Other ROM Sites

from the make-believe dept

A couple of years ago, we first discussed how Nintendo, long-time maximalists on intellectual property concerns, decided to open up a new front against ROM sites. What at first looked like it might be something of a surgical strike mission-creeped this past summer into a full war on ROM sites generally, with Nintendo using a buckshot lawsuit approach. Many sites simply voluntarily shut down, sweeping away decades of video game history to be once again locked up by Nintendo, while others stared down the company's legal guns. All this, of course, as Nintendo was showing how silly this all is given the insane performance of its Nintendo retro consoles.

Well, it looks like the output of this effort is going to be Nintendo playing games with at least one of these suits, getting a settlement that nobody thinks it's actually going to pursue in full just to have a multi-million dollar number to threaten other sites with. The husband and wife operators of LoveROMS.com have agreed to a $12 million settlement they can't pay, and likely won't have to, to have Nintendo call off its dogs.

Today we can report that both sides have indeed reached a deal. They agreed to a consent judgment and a permanent injunction that will resolve all outstanding disputes. Paperwork obtained by TorrentFreak shows that Mathias and his wife admit that their involvement with the websites constituted direct and indirect copyright and trademark infringement, which caused Nintendo irreparable injury.

However, on paper, the married couple won’t be getting off cheaply. On the contrary, they actually agreed to a judgment that exceeds $12 million.

“Plaintiff is hereby awarded judgment against all Defendants, jointly and severally, in the amount of $12,230,000,” the proposed language reads.

To be clear, nobody is saying the settlement is invalid or anything like that. In this case, the couple has admitted to infringing Nintendo's copyright rights, has agreed to hand over any emulators and ROMs it has, and has agreed to the amount in question. On paper at least. But that agreement likely comes with the understanding that after this is all inked with signatures and the blessing of the court, a separate deal will be worked out for the payment of an entirely different amount.

We can only speculate but it’s possible that Nintendo negotiated such a high number, on paper, to act as a deterrent for other site operators. In practice, the defendants could end up paying much less.

It wouldn’t be the first time that a judgment in court is more than what the parties agreed to privately. This happened before in the MPAA’s lawsuit against Hotfile, where a $80 million judgment in court translated to $4 million behind the scenes settlement.

In other words, Nintendo pushed for a settlement amount it wouldn't have gotten at trial not as an act of justice, but to use as a bludgeon against other ROM sites. It will be used either as a way to force voluntary shutdown of those sites, or as a template for settlement demands in the future. Either way, it makes a game out of the legal system, rather than trying to get to a just result.

And it has to be pointed out again that this is all happening as Nintendo competes with these sites perfectly well with its very cool retro consoles. Because control is what matters.

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Posted on Techdirt - 15 November 2018 @ 3:32pm

Hitman 2's Denuvo Protection Busted 3 Days Before The Game's Launch

from the you-were-saying? dept

So, we were just talking about how Denuvo's new ownership, Irdeto, was busily making the case via the example of some unnamed AAA sports game that even when Denuvo DRM is cracked in a few days it's still worth it to protect a game's initial release window. The comments from Irdeto got so ridiculous that it claimed that even if Denuvo kept titles safe for a few hours, that was still worth it. As specious as this claim might be, it's also formulated to be hard to argue with. After all, with this low of a bar, all Irdeto's Denuvo has to do is barely work for any measurable amount of time before the release of game in order for Irdeto to claim victory. So how can it possibly fail?

Well, how about if a game's Denuvo protection is defeated before the game gets released?

This weekend, the technology suffered yet another disappointing blow. The long-awaiting stealth game Hitman 2 – which comes ‘protected’ by the latest variant of Denuvo (v5.3) – leaked online. Aside from having its protection circumvented, this happened three days before the title’s official launch on November 13. It appears that a relatively new cracking group called FCKDRM (more on them in a moment) obtained a version of Hitman 2 that was only available to those who pre-ordered the game. There are some reports of the crack failing at times on some machines but nevertheless, this leak is important on a number of fronts.

Firstly, the game leaked online three days early, rendering the protection when the game finally comes out much less useful. Secondly, presuming the original copy of the game was obtained on Friday when the pre-order copy was delivered, it took just a single day for the group to crack Denuvo’s latest protection. Considering an announcement made by Denuvo just last week, this is a pretty embarrassing turn of events.

That is putting it mildly. This is the destruction of a nonsense argument Irdeto made for itself to try to pretend that Denuvo was worth any amount of investment by game publishers. For the game to be cracked before official release is nearly the ultimate punchline in all the jokes that have been made at Denuvo's expense since the once-vaunted DRM became just another DRM failure. For it to happen to a AAA game, with the name of that game very much in the public eye, just days after it cited an anonymous AAA game as the reason Denuvo was necessary, almost seems like this was a setup job.

But it wasn't. Instead, this is just DRM being DRM, which is to say fallible. And that should be causing other publishers that have used this exact iteration of Denuvo, and have games in early release, to wonder why they bothered.

Given that Denuvo 5.3 was cracked so quickly (some crashing issues aside) it raises questions about other upcoming titles set to use similar technology. They include Battlefield V from EA/DICE, which has its official full release on November 20 but is already available to early access players.

I'll give Denuvo this much: this is the longest death spiral I've ever seen.

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Posted on Techdirt - 14 November 2018 @ 3:32pm

UCLA Flails Amid Pro-Palestine Group's Planned Conference, While L.A.'s City Council Goes Full Stupid

from the inconveniently-free-speech dept

Those of you who geek out over trademark law like me may have seen the recent dust-up between UCLA and a group called National Students for Justice in Palestine this past week. I had intended on writing something up about the whole thing because of how blatantly stupid it was. The pro-Palestinian group has a chapter at UCLA and it is hosting a conference in the future, for which it put out some promotional materials that feature a bear flying a kite with the colors of the Palestinian flag and dared to mention that the conference was being held at UCLA. For this, UCLA lawyers sent a cease and desist to SJP, claiming that the way the promo material displayed the UCLA name and its use of bear imagery created confusion in the public suggesting that the school was affiliated with the conference.

UCLA argues that SJP’s “use of the ‘UCLA’ name” and use of “the UCLA mascot of the Bruin Bear in a logo/digital poster” effectively claims, suggests, or implies an “affiliation with” UCLA. The university says the group may state where the conference will be held (“at UCLA”) if the font size for the word “UCLA” is “no larger than the font used for the remainder of the communication.” Failing compliance, UCLA expressly threatens to cancel the event.

Not for the first time, a California university is wielding a pretty clearly unconstitutional law, one designed to give California universities sweeping powers to keep the public from mentioning school names, even if in an entirely accurate manner. No room is made for fair us, while schools have the authority under this state law to put in all kinds of silly restrictions, such as the font size restriction mentioned above.

What kept me from writing this up initially is that the school quickly signaled it would reversed course after SJP made minor changes to the promotional material. Oh, and after the ACLU got involved.

Tod M. Tamberg, a spokesman for UCLA told NBC News in an email on Wednesday “it was never about the bear all by itself” and that it appreciated the groups [sic] alteration to remove the UCLA name. The university, which threatened to cancel the conference, also said that the event would go on as scheduled.

“As you may have heard, some members of the Jewish community have been sharply critical of upcoming conference, demanding that UCLA move to cancel it,” the school said in statement provided by Tamberg. “As a public university, UCLA is legally bound to comply with the First Amendment, which protects everyone’s right to express their views, even those that are offensive and hateful or that the university opposes.”

Yes, it certainly does. Now, many have levied claims of hate speech against SJP. These claims, however you might agree or disagree with them, tend to be fairly laughable. If the best you can trot out is the following to claim a whole group is a hate group, you're not going to meet any kind of First Amendment bar.

In an Oct. 11 letter to UCLA chancellor Gene Block, [State] Rep. Sherman argued that speech on the National SJP website “may very well constitute anti-Semitism” as defined by the State Department — a definition Sherman says was “recently adopted” by the Department of Education “for enforcement purposes.” Sherman’s letter highlights three particular examples contained in that definition, including “claiming that the existence of a State of Israel is a racist endeavor,” applying “double standards” to Israel by “requiring of it a behavior not expected or demanded of any other democratic nation,” and “[d]rawing comparisons of contemporary Israeli policy to that of the Nazis.”

None of that is hate speech, no matter what some silly State Department missive might suggest. Words matter, after all, and we can no more accept that the kind of political speech above, even if you disagree with it, is hate speech any more than we can condone the government crying terrorism anytime it's convenient. It also seems obvious to me that if you replaced this pro-Palestinian group with a pro-Israel group, we never would have heard this story at all. Argue with that if you like, but you're wrong.

And, yet, the L.A. City Council is now getting involved in the stupidest way possible, passing a resolution that first acknowledges UCLA's need to adhere to free speech rights and then somehow calling for the cancellation of this conference entirely.

Add the City of Los Angeles to the government actors calling on UCLA to cancel the convention. While dubious California statutes and trademark concerns falter, the Los Angeles City Council has issued an internally incoherent resolution recognizing that the university has First Amendment obligations while demanding that the conference be canceled, First Amendment be damned.

The resolution, embedded below, was unanimously adopted with the “concurrence” of Mayor Eric Garcetti. The resolution cites UCLA’s “responsibility to allow freedom of speech,” but quickly skips past the pesky nuances of the First Amendment to demand that UCLA “cancel and ban” the conference because it would be “inappropriate” to host the conference “given the atmosphere in the country.” The resolution also concludes that there is “never a good time to have this type of event.”

Follow along with me in a resolution too dumb to make up: UCLA needs to protect free speech on campus, but it should cancel this conference given the current political climate and some tragedies that happened on the other side of the country, and, oh, also there will never, ever be a climate in which this conference should take place. The speed with which the city council and mayor got from "we acknowledge free speech rights" to "we can never allow these people those free speech rights" is breathtaking.

And fundamentally stupid, given that these are people in government we're talking about. Frankly, the flailing UCLA administration that once attempted to trademark bully SJP for no good reason comes out looking way better than the City Council for Los Angeles. It's also worth noting that for all the hand-wringing that takes place over the type of political speech allowed on campus by a certain segment of our population, it's been complete crickets when it comes to defending a pro-Palestinian group's rights.

One might nearly call that racist, were there not the worry that such a call would be labeled "hate speech."

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Posted on Techdirt - 13 November 2018 @ 7:51pm

The Girl Scouts Sues The Boy Scouts Over Trademark

from the scouting-party dept

As you may recall, the Boy Scouts of America decided late last year to -- finally -- allow girls to join their ranks. It was a widely praised decision that was long overdue, with the organization's mission statement not calling for any kind of gender exclusivity. You may also recall that the BSA has some history of being on the wrong side of intellectual property concerns and even has a special law created just for the BSA to allow it to be trademark bullies. These two seemingly unrelated worlds have now collided, with the BSA being sued by the Girl scouts of America over trademark concerns.

The Girl Scouts are suing the Boy Scouts, saying the organization’s inclusive rebranding effort has caused all sorts of consumer confusion from mistaken enrollment in the Boy Scouts to misinformation about a merge of the two groups.

Tuesday’s trademark infringement lawsuit is an attempt to clear up the uncertainty, said the Girl Scouts of the United States of America.

The Manhattan federal case noted the two separate youth organizations have long coexisted. But problems arose when “core gender distinction” was altered by the Boy Scouts of America, which announced in October 2017 it would open its doors to girls beginning in 2019. Earlier this year, the Boy Scouts unveiled new marketing campaign to back the effort. “Scout Me In,” the tagline proclaimed.

What happened here is pretty simple. And, frankly, pretty stupid on the part of the BSA. And we should acknowledge that Techdirt generally, and myself specifically, tend to advocate a more permissive attitude when it comes to trademark concerns. In this case, what BSA did was to rebrand itself without the "Boy", instead recruiting girls into its ranks using the "Scouts BSA" branding and term. To be somewhat critical of the Girl Scouts, having that "BSA" in its name certainly does some work to differentiate it and call back to its original Boy Scouts of America name, but I'm not sure one could argue that "BSA" alleviates any concern. The Girl Scouts, of course, are still a thing. And this appears to have led to very real confusion in the marketplace.

In court papers, the Girl Scouts said the Boy Scouts’ rebranding announcement has created all kinds of brand confusion across the country.

For example, some Minnesota families looking to sign up their girls were erroneously told the Girl Scouts and the Boy Scouts have merged. Meanwhile, in Indiana and South Dakota, some parents mistakenly signed up their daughters to girls’ programs in the Boy Scouts.

Those are pretty clear cut examples. But, for some, this has become a tricky case. Most people view the Boy Scouts being more inclusive and allowing girls in as a good thing. Most people think the term "scout" is fairly generic at this point. Are we really to advocate that the GSA can keep BSA from including girls as scouts?

No, of course not. The problem here arose when BSA decided to brand itself by dropping the "Boy" instead of replacing it. If the branding and marketing material had instead replaced "Boy" with something else, particularly with a new name that used a different acronym, there wouldn't be a problem. If BSA had decided to become the Field Scouts of America, for instance, confusion wouldn't have been a thing. That it chose to do otherwise, knowing full well that the Girl Scouts exist, is actually fairly belligerant.

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Posted on Techdirt - 9 November 2018 @ 3:39pm

Denuvo: Every Download Is A Lost Sale For This Anonymous AAA Title We're Referencing, So Buy Moar Dunuvo!

from the or-don't dept

The saga of antipiracy DRM company Denuvo is a long and tortured one, but the short version of it is that Denuvo was once a DRM thought to be unbeatable but which has since devolved into a DRM that cracking groups often beat on timelines measured in days if not hours. Denuvo pivoted at that point, moving on from boasting at the longevity of its protection to remarking that even this brief protection offered in the release windows of games made it worthwhile. Around the same time, security company Irdeto bought Denuvo and rolled its services into its offering.

And Irdeto apparently wants to keep pushing the line about early release windows, but has managed to do so by simply citing some unnamed AAA sports game that it claims lost millions by being downloaded instead of using Denuvo to protect it for an unspecified amount of time.

In a statement issued by Denuvo owner Irdeto (the latter acquired the former earlier this year), the company states that it tracked pirate downloads of an unnamed ‘AAA’ (big budget, major studio) title during the first few days after its release. Without Denuvo protection it was quickly cracked and made available on P2P networks and from there, pirates did their thing.

“Irdeto tracked the downloads of a major sports title on P2P networks after the title, which did not include anti-tamper protection, was cracked on the same day of its release,” the company says. “During the first two weeks, Irdeto detected 355,664 torrent downloads of the illegal copy of the title. Given the retail price of the game, this puts the total potential loss of revenue from P2P downloads at $21,336,283.”

There are, of course, many issues with this statement. First, citing an unnamed title is a bit odd, since the publisher of that title is quite obviously not a customer of Irdeto's. Or, at the very least, isn't a customer for that particular game. Why the need for anonymity, in that case? It would seem only to Irdeto's benefit to name the title that chose not to be protected by Denuvo. And, if this is all publicly available information, keeping that name secret doesn't make a great deal of sense.

From there, we can move on to Irdeto choosing to keep the math simple by suggesting that every download is a lost sale, in order to come up with its $21 million dollars lost figure. This line of thinking has been debunked so many times that it's not truly worth discussing, other than to say that a DRM company citing it as a valid number should tell you everything you need to know about the wider "report."

And, finally, Irdeto is citing a two week release window important for sales of games as though Denuvo hadn't been defeated on timelines much, much shorter than that. This isn't to say that it's always defeated within two weeks, but that often ends up being the case particularly for AAA titles.

It’s worth noting that while Denuvo games are often cracked very quickly, it’s definitely not uncommon for protection to stand up to the first two weeks of attacks. Denuvo can usually hold off crackers for the first four days, so these figures are obvious marketing tools for a technology that has been somewhat diminished after various cracking groups began taking its challenge personally.

But just in case Denuvo only manages a single day of protection, owner Irdeto suggests that the effort is worth it – even dropping down to the importance of standing firm for an hour.

An hour. An hour. When a DRM company has reached the point of touting that it can protect a game for an entire hour, we've jumped the shark. We don't have much information about the cost of using Denuvo for publishers, since everything I've read suggests publishers have to sign restrictive NDAs that prohibit revealing that information, but I'm struggling to understand how making pirates wait an hour for a cracked game can be worth whatever those costs are.

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Posted on Free Speech - 9 November 2018 @ 3:33am

Governor Of Tanzania's Capital Announces Plan To Round Up Everyone Who Was Too Gay On Social Media

from the tanzanian-devil dept

There has been an unfortunate trend in far too many African nations in which governments there look at the internet as either a source of evil in their countries or purely as a source for tax revenue, or both. The end result in many cases is a speech tax of sorts being placed on citizens in these countries, with traffic being taxed, bloggers being forced to register with the federal government, and populations that could otherwise benefit from a free and open internet being essentially priced out of the benefit altogether.

But things have taken a different and far worse turn in Tanzania, where the governor of the country's capital city, Dodoma, has announced his plan to round up anyone who is perceived as being gay on the internet and chucking them in prison.

He announced his plans for sweeping arrests of gay citizens in an interview on Monday that was shared on social media, reports CNN Africa. "I have received reports that there are so many homosexuals in our city, and these homosexuals, are advertising and selling their services on the internet," said Governor Paul Makonda. "Therefore, I am announcing this to every citizen of Dar es Salaam. If you know any gays...report them to me."

"These homosexuals boast on social networks," he added.

This, of course, is horrific on many levels, from the blatant homophobia, to the inciting a mob mentality against the LGBTQ community, to the bizarre focus on their internet usage and silly claims of "advertising and selling their services" online. When called on all of this, Magufuli hid behind antiquated religious beliefs, which suggest the talk about "advertising and selling their services" is just part of the moral panic because he's homophobic:

When asked about the international backlash that the decision will undoubtedly draw, Makonda, described as a pious Christian and a loyal supporter of president John Magufuli stated "I prefer to anger those countries than to anger God," adding that same-sex relationships "trample on the moral values of Tanzanians and our two Christian and Muslim religions," as quoted in News 24.

In which case anything to do with "selling services" is complete bullshit and this is entirely about hating gay people. And, importantly, it's about using people's speech on social media platforms as the basis for rounding up those "gay" people and throwing them in jail for no other crime than being gay on the internet.

And if anything were anathema to the very concept of a free and open internet, it surely must be this. The chief benefit of a communications platform like the internet is to allow for expression and the introduction of new ideas and personas to a wider populace. Turning that very platform into a weaponized platform for building hit lists should be sending up all kinds of red flags across the world.

If this indeed goes forward, the international moral outrage had better be swift and massive, or we'll have confirmation that the world has lost its way.

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