Everyone knew this was coming. With the expansion of publicity rights that is currently ongoing, and more specifically after the case between former NCAA players and Electronic Arts that effectively killed off college sports video games, it was only a matter of time before former professional players turned their sights on the Madden franchise. Now that a few former NFL players have filed a publicity rights suit against EA, we again will see the First Amendment go up against publicity rights. So far, for free speech advocates and champions of video games being art, it isn't going well.
Some background. In the NCAA case, former athletes successfully argued that the NCAA forcing them to sign away the rights to their likenesses in order to play their respective sports deprived those athletes of the ability to license their likeness to other game-makers. It's an important distinction, because in the case of former NFL players no longer affiliated with the players' union, no such signing away of rights ever occurred. Instead, this is a simple battle directly between Electronic Arts, a game producer, and former players over the rights to use their likeness. In the Madden franchise, for many years the games have included historical teams, such as championship winning or otherwise notable teams, which have included nameless and faceless but otherwise faithfully reproduced historical athletes from those teams. Gamers can play with those teams against other historical teams, creating something of a historical fiction episode of professional sports. Historical fiction, of course, is protected by the first amendment as art. According to a recent ruling by the 9th U.S. Circuit Court of Appeals, however, video games are to be treated differently.
The case against EA was brought by Michael Davis and Vince Ferragamo, both retired NFL players whose likenesses were reproduced (sans name or picture) in Madden's historical teams within the games. EA sought to have the case thrown out with an anti-SLAPP motion, arguing that it would be likely to win on several grounds. Included in those grounds was that the use of historical players' likenesses was transformative, that the publication of their game was in the public interest, and that its use of likenesses was artistically relevant to the game as a whole. The court didn't buy any of those arguments, most of which I understand, although the argument that the use of historical players in the game is transformative is at least an interesting one. But it's on the final argument EA made that the court seemed to go sideways in its logic. As reported by The Hollywood Reporter:
Finally, EA argued that the avatars were merely an incidental use. If the latest case makes its mark as precedent, it might be here. The 9th Circuit weighs the value, significance, purpose and duration of the use of the former players and comes away with a sense that the players' likenesses are worth something. Judge Fisher decides that "the former players’ likenesses have unique value and contribute to the commercial value of Madden NFL" and that "the former players’ likenesses are featured prominently in a manner that is substantially related to the main purpose and subject of Madden NFL."
From the ruling:
EA advances one additional argument in this appeal – its use of former players’ likenesses is protected under the First Amendment as “incidental use.” We disagree. We hold EA’s use of the former players’ likenesses is not incidental, because it is central to EA’s main commercial purpose – to create a realistic virtual simulation of football games involving current and former NFL teams.
Except that this seems to be entirely too simplistic an approach by the court and doesn't treat the game as having artistic value. Other genres of art don't typically suffer under this kind of distinction. Historical fiction seems like the logical place to point, in which public figures of notoriety are re-imagined in fictional accounts. Why should that use be different than historical players being used to play football against teams they never played against? What makes historical fiction okay, but historical games not? In its ruling, the court never really answers this question, instead going back to the NCAA case over and over again and asserting that the questions raised by EA in this case have already been decided.
As a result, the 9th Circuit affirms the lower court's decision to deny EA's motion to strike. The opinion not only reiterates what the same appellate circuit said last year in a similar case involving college athletes — something that could be disconcerting to TV broadcasters who are now facing legal heat — but also underscores some of the ways that publicity rights can gain an edge over First Amendment rights, best illustrated up until now by No Doubt singer Gwen Stefani's victory over a game that used her avatar.
But then why should this case be different than the one brought by Manuel Noriega, where his likeness was used in Activision's Call of Duty game without his permission. In that case, in a different jurisdiction, the court ruled that the First Amendment outweighed any publicity rights Noriega may have had. If video games are art, and they most certainly are, than former NFL players objecting to the historical fiction that comes about from EA including historical teams in its games ought be outweighed as well on First Amendment grounds. The state laws are different, but the protection of the First Amendment is not. And keep in mind, the game only includes basic info about these players that are historically accurate for the time of the team represented (height, weight, age of the player at the time they were on the team). No names or pictures were included. And the court was well aware of the protection video games are supposed to have as artistic endeavors.
The plaintiffs concede that their suit arises from an act by EA in furtherance of its right of free speech under the First Amendment. Indeed, “[v]ideo games are entitled to the full protections of the First Amendment, because ‘[l]ike the protected books, plays, and movies that preceded them, video games communicate ideas – and even social messages.’” Keller, 724 F.3d at 1270-71
The district court denied EA’s motion, however, concluding that the plaintiffs established a reasonable probability they will prevail on their claims. “‘Reasonable probability’ . . . requires only a ‘minimum level of legal sufficiency and triability.’”
And so the court refused to dismiss the case, which will now go trial. In that trial, we will learn whether California's publicity rights law will continue to value the desires of control of public figures over their own history or matters of art.
Not long ago, I wrote a post about the aftermath of the Oregon mass shooting and how every media outlet would retreat to familiar stances looking to blame all manner of things on idealogical grounds. That, of course, happened. Left out of that post is how grandstanding politicians would do the same: shifting attention toward familiar punching bags while diverting attention from other targets in their own interests. One of the first to do so, as it turns out, is Bobby Jindal, who certainly doesn't get any points for originality in trotting out the violent media scapegoat to sate some of the public's need to place blame for the shooting.
First on his hitlist was Hollywood.
We glorify sick and senseless acts of violence in virtually every element of our pop culture, and we have been doing that for at least a generation. Our movies and TV shows feature a continuous stream of grotesque killing of every kind imaginable. And this is true of virtually every genre, from horror to drama to comedy. We celebrate and document every kind of deviant behavior and we give out awards to producers who can push the envelope as far as possible. Rape, torture, murder, mass murder, all are cinematic achievements.
This, obviously, is overstating things by several orders of magnitude. First, it's noteworthy that Jindal's suggestion that violent movies, ever ramping up, cause violence within the real world fly in the face of simple statistical analysis. The national murder rate, for instance, is roughly 60% of what it was in the 1970s. Does anyone want to argue that movies have become less violent since the 70s? I didn't think so. But, assuming that Jindal is solely talking about the mass shooting phenomenon, the data doesn't get any better for Jindal. An otherwise dumb opinion piece at National Review at least helpfully included the fact that, when taking the long view and looking at mass shooting incidents over the past century, they are no more common today than in the past. In fact, the high water mark for mass killings looks to have been achieved in the 1920s. Again, anyone want to argue that media in the 20s was more violent than it is today? I didn't think so.
I shouldn't have to say this, but none of this is to suggest that America doesn't have a very real violence and mass killing problem. We do. But it simply doesn't correlate to violence in movies. Nor in video games, which were Jindal's second target.
We have generations of young boys who were raised on video games where they compete with other young boys around the country and the world to see who can kill the most humans. We make it so fun, so realistic, so sensational.
Oh, we make sure that we stop them from bullying at school, but we are completely fine with them watching people get murdered and raped on the internet after school, and we are willing to let them go to the basement and join a fantasy world where they pretend they are killing people for 2 hours after school.
Quick show of hands: who is totally chill with their children watching people get murdered and raped on the internet after school every day? Actually, what the hell is Jindal talking about here? I'm fairly connected in the world of internet-ing, and I'm also a father, and I have no idea what Jindal is referring to. Where is this place where kids go to sit and watch people get raped and tortured? Is he referring to video games here, as he does in his culminating line, where kids are sitting down and super-murdering digital humans for 2 hours every day? Because does that really happen, either? Keep in mind, for all the hand-wringing over violent video games, the average age of the average gamer is going up and currently stands at something like "probably balding or in mid-management by now." For youths that find themselves playing games meant for adults, that's strictly a parenting issue, not a culture issue (for all the reasons described for violent movies above). And, regardless, there's nothing even remotely close to a scientific consensus that violent video games have any negative effect on children at all. In fact, many studies indicate there is no link between gaming and violence at all.
So what is this? Well, it's a politician employing the aftermath of tragedy to gain support, headlines, and attention so as to better compete with a god damned reality show host in a presidential election cycle. And if that doesn't make you sick, no amount of violence in movies or games will either.
I didn't realize this, but apparently Rochester, NY is nicknamed "The Flour City." You learn so much being a Techdirt writer. Anyway, Rochester became one of the largest flour-producing cities in the world back in the 1800s, which likewise caused a great deal of food-related businesses to spring up in the city as well. Many of those businesses today include "Flour City" somewhere in their names. In fact, something like seventy businesses in Rochester have "Flour City" in their names. Yet, in a brief legal scare, one local business decided that it, and only it, should suddenly control the term for the food business and began sending out cease and desist letters. That is until the backlash became too heavy to handle.
All should be able to breathe a bit easier now that Flour City Pasta appears to be backing off local attempts to enforce the trademark for its name, and exclusivity over "Flour City." A dust-up occurred recently after the Macedon-based company sent cease-and-desist letters to some local businesses in the food service industry, which included Keith Myers and his Rochester-based Flour City Bread Co.
Flour City Pasta owner Jon Stadt backed off the demands Tuesday morning, adding on a Facebook post that "it was never our intention to harm a fellow merchant, especially one we so respect. Our concern was the threat of out-of-state competition and confusion over our name Flour City Pasta — a brand that we spent five years building and protecting."
Yes, Flour City Pasta was so immeasurably concerned about other companies out of state using the "Flour City" phrase in commerce that it trained its sights first on all the in state businesses doing so. Sorry, that doesn't pass the smell test, unless we're specifically smell-testing for bullshit. What actually happened is that Flour City Bread had started up a crowd-funding campaign to support the business and petition the government to cancel Flour City Pasta's trademark entirely. At that point, the pasta company went limp noodle and ran away.
But not, of course, before trotting out every trademark bully's favorite excuse.
While the company appears to be backing off local enforcement, it still would likely pursue enforcement from out-of-state interests infringing upon its business, said Nunes [Flour City Pasta's attorney], adding that a petition for a business in Florida has the local pasta company concerned.
"This was the concern from the get-go," he said. "It never was about Rochester. It’s about out-of-state sales. You have to police the market and that is why you have to send out cease-and-desist orders. If you don’t police the market … eventually people will strip you of your rights to the (trademark)."
And they'll probably have a hard time fighting that Florida company on the merits, as it seems that all kinds of food-makers are using the Flour City name already, and have done so for years. And yet, despite all of this common use, these companies have stuck around. It will be interesting to hear why Flour City Pasta thinks the name can be widely used within Rochester but must be protected from companies in Florida. The reality is probably more along the lines that Flour City shouldn't be a trademark in the first place.
If, like me, you find American presidential politics far more humorously entertaining than anything Adam Sandler has produced in the past decade (at least), you probably already know all about Donald Trump's stupid red hat. This isn't to say anything about Trump's politics, which are also stupid, but the hat he's trotting around with is objectively stupid and if you don't agree, well, you're wrong.
The Trump Mullet: business from the neck down, nationalism up top.
As it turns out, other people think Trump's stupid hat is stupid, as well. The Washington Post, for instance, decided to create a page dedicated to making all kinds of hats that want to make all kinds of things great again. And then there is NYC's Mayor Bill de Blasio, who decided to make fun of Trump's stupid hat by wearing his own stupid hat.
As you'll hear in that Fox News clip, news commentators are now discussing whether de Blasio's "Make America Fair Again" hat is a trademark violation, because Donald Trump has registered his "Make America Great Again" slogan. It's not just Fox News asking this question. The Daily Caller too has a post about just how close to or over the trademark violation line de Blasio crept with his hat.
New York Mayor Bill de Blasio took a jab at Republican front-runner Donald Trump by wearing a red hat bearing the slogan “Make America Fair Again” during an interview Thursday on CNN, but he might have also violated trademark law in the process.
No, actually, he absolutely did not violate trademark law by making fun of Trump's hat with his own hat. There are any number of reasons why this is the case. Essentially, all de Blasio would have to do is shout "Parody!" at anyone discussing this and the conversation is over, as parody is protected under Fair Use. But even beyond that, Trump would have to demonstrate before a court that not only is de Blasio's hat not protected as parody, but that de Blasio is using his hat in commerce in competition with Trump's hat, that the two slogans aren't distinct enough to be easily separated in the mind of a moron in a hurry, and that anyone might be confused into thinking that Trump was behind the "fair" hat. None of those are the case. And, again, parody.
So, no, making fun of Trump's stupid hat isn't even remotely close to a trademark violation. Way to go, news media...
It's a damned dirty shame that if you search Techdirt stories for "beer" -- all you come away with are stories about silly trademark fights that ought never have happened. Of all the possible tangential topics having to do with beer, one of life's great pleasures, spinning into trademark discussions is the worst of them. Yet these stories keep happening. And, in our wonderful comments section, oft times someone will suggest a barely-changed replacement name to get around the trademark dispute that also clearly thumbs its nose at the accuser. Very few breweries choose to go that route, unfortunately.
"We’re going to run through the rest of the packaging for Night Train, so there’s a possibility you’ll see both on the shelves," said O'so brewmaster Ray Wagner of the porter's past and present names. "We didn’t change the packaging that much. If you’re not paying attention, you might not notice."
The Plover brewery announced in March that it would need to rename Night Train due to a legal challenge from another alcoholic beverage maker. Though it was never confirmed, speculation was that the challenge came from E&J Gallo Winery in Modesto, California, which makes a wine called "Night Train Express."
Yes, after crowdsourcing name suggestions from its fans, such as "C&D Porter" and "Injunction Porter", O'so decided to omit a single letter in the disputed name of the beer and carry on with things. It's fun to see a company on the receiving end of a dumb trademark C&D engage in a little snark while technically complying but, as I've been saying for several years now, the craft brewing industry is running into entirely too many of these situations. An explosion of growth in an industry shouldn't be bogged down by questionable trademark disputes. That isn't a recipe for fostering more and better business. Instead, these nettlesome disputes act as barriers. O'so itself, after this dispute arose, decided to proactively contact other businesses with slightly similar but distinct names to make sure there would be no lawsuits or letters from them as well. All that does is take the business away from what it does best: making beer. Sadly, this is quickly becoming an anticipated annoyance.
"It’s just another day in the beer world. This stuff’s happening all over the country," Wagner said. "We did get a little bit scared and start calling competitors that had similar names to beat the lawyers to it, to say, 'We aren’t going to come after you if you aren't going to come after us, can we all get along and get a beer later on?'”
The small brewery is looking forward to putting the whole ordeal behind them.
"I just hope it doesn’t happen again," Wagner said. "We’ve started actively trademarking names near and dear to us so we don’t have to go through this again. It’s a large cost for a brewery our size. It’s unfortunate we have to start fighting legal battles that haven’t started yet."
And you see how the spiral finds its next leg downward. Once bitten by a C&D letter, the brewery is now going on a trademarking splurge just to avoid having to go through any of this again. Trademarks that will, of course, carry with them their own requirement to protect the marks, no matter how congenial the brewery would otherwise wish to be. In other words, this is only going to get worse.
A ways back, we brought you the delightfully dumb news that LMFAO, the band, had sent a cease and desist letter to Pigeon Hill Brewing Co. over one of its beer brews, the LMFAO Stout. At chief issue, according to the brand, was a misguided concern that drinkers of the stout would somehow think that the acronym in the beer's name meant that LMFAO the band had endorsed or was otherwise affiliated with the beer. This was dumb on any number of levels, but the primary reason is that LMFAO got its name from a common internet/texting acronym, rather than achieving any kind of originality in music-group-namesmanship.
Which, you know, yay, but why did it takes weeks of litigation and lawyerly conversations to conclude that everyone could live with a beer named LMFAO? Trademark law has a very handy provision that requires that marks be acquired and used ongoing in specific industries. LMFAO is a band. LMFAO Stout is a beer. There's no common marketplace here.
And, while it's a breath of fresh air to hear that two sides had legal representation that were able to work amicably to an end that got us back to exactly where we started, it isn't enough to simply congratulate everyone for not being jerks. This trademark thing is a problem the craft brewing industry is going to have to deal with eventually, or else they risk stifling the immense growth it's experienced in the past decade.
We only occasionally talk about video game DLC, or downloadable content, here at Techdirt. When digital distribution became a thing some years back, game makers came up with DLC as a way to achieve several goals: extend the shelf-life of games, make games more saleable through the promise of extra content, and, of course, make more money. I remember when the wave of DLC started and the general negative reaction brought by the gaming public to it. Most concerns centered around game makers charging for features that once were included in the games for the original asking price. Some makers legitimized these concerns through their actions, but others did wonderful things with DLC that gamers would not wish to be without. But, as Hunter S. Thompson once imagined he could see the crest of hippie culture along the Rocky Mountains before its eventual recession, I too can see the crest of DLC greed in our time in the insanity of Train Simulator 2016's laughable DLC offerings.
This all becomes evident as Kotaku's Alex Walker went on a quest to find the most ridiculous DLC costs for games on the market today.
My first thought was the Dynasty Warriors series. They, like many anime brawlers, have an absurd amount of costume and armour packages that are far more expensive than they should be. But then I came across Train Simulator 2016: Steam Edition. It’s US$45, which is fairly standard for niche titles with a hardcore fanbase. Dovetail Games were even generous enough to have a special on the DLC. And then I saw how much DLC there was.
As you can see at the bottom of the image, there are 230 available DLC options for sale. Next to it is an option to see them all. Walker saw them all. The results, and keep in mind that most of these are on sale for nearly half off, are hilariously expensive.
Yes, that's over $3,000 if you were to buy all of the game's DLC when most of it is on sale. None of this is to say, of course, that a game maker can't charge what they like for their game, their DLC, their box art, their communications, their support, or anything else. They most certainly can. But what this should herald for most of us is the ultimate example of DLC done wrong. Whatever costs and effort might go into making a game, the end result shouldn't be the cost of a used car in payment for the full content. There are ways to DLC right and it's not evil to charge for great content, but this kind of thing we see above is so far removed from how games were charged for only a few years ago that it's plainly obvious that something ain't right here.
I'll give the entertainment and the copyright troll industry this: they sure know how to talk a big game. After the settlement prospecting done by copyright trolls in the UK died down somewhat these past few years, it appears the war is back on. TorrentFreak has the story of one German copyright troll, Maverick Eye, announcing that it is going to step up its efforts in the UK in the coming months.
Framed as one of the largest anti-piracy campaigns in history, Maverick Eye says it teamed up with law firm Hatton & Berkeley and other key players to launch a new wave of settlement demands.
“Since July this year, Hatton & Berkeley and Maverick Eye have been busy working with producers, lawyers, key industry figures, investors, partners, and supporters to develop a program to protect the industry and defend the UK cinema against rampant piracy online,” Maverick Eye says. "The entertainment industry can expect even more from these experts as they continue the fight against piracy in the UK.”
Funny that Maverick Eye should be putting so much weight behind "experts." You see, a review on Maverick Eye's website of the films it is working on protecting includes some familiar names, such as The Cobbler, The Expendables, and Dallas Buyer's Club. If these sound familiar, it's because they were also all films working with German company Guardaley, whose website lists many of the same movie franchises, and Malibu Media, whose ongoing game of hide-the-ball as to who was representing what and which company was actually a shell of company of whom we detailed last year. It all comes back to this German copyright troll traversing the globe to shuttle out settlement notices to individuals it deems have infringed on these movies in an effort to get them to pay up or face time in court. What makes the trotting out of experts hilarious is Guardaley's own internal documents indicate that the experts it relies on are so shaky that they have to hope that courts don't bother to question their qualifications.
Add to that this group's failure to answer as to exactly what technology it is using to identify supposed infringers, and it seems reasonable to expect any kind of court proceedings to turn into the monumental shitshow that Malibu Media made famous. Mixed in with accusations of experts being paid contingency fees based on suit outcomes and the ongoing games this parent group's child-companies engaged in as to who worked where and for whom, and this is expert level shadiness we have here.
And this is the group that entertainment companies want championing their product in public and in court? These are the people announcing a new offensive surge in the UK? This practice of identifying "infringers" using "software" that nobody is sure actually "works" and then shaking down victims is still being allowed to continue? Even though it never actually seems to work? C'mon, entertainment industry. At this point, it's worth at least trying some new ways to do business rather than just putting the mistake track on repeat.
As you no doubt have heard by now, and as we already tangentially discussed earlier, there has been yet another mass shooting in America. This time, it came to Oregon, where a single gunmen made his way into a community college and managed to murder nine innocent people, injure others, before his own life was extinguished, either by his own hand or by those of law enforcement. And, as we wake up the next morning, anyone with any interest in civil society and culture grapples with the story. President Obama remarked that these stories have become routine, seeming to suggest that everyone has become numb to these events, accepting them as part of the American life. He's wrong about that. Desperately and importantly wrong. Instead, the truth is that the public is the opposite of numb. The public is angry. Unfortunately, because of the way that a fragmented and ideologically aligned media landscape has emerged in the past two decades or so, we all end up angry about different things, with our outrage stoked and guided in avenues that put us at odds with those that have had their outrage stoked and guided in entirely different avenues.
Predicting these avenues is trivially easy. A cursory glance at the story of a mass shooting and the media reaction to it provides everything required to act as a Nostradamus for the outrage outlets we will see. Over the next few days, we'll hear stories about the gunmen being from a broken family, with traditional family breakdown serving as a punching bag for remorse. Some outlets will discuss the shooter's video game hobby. Or his interest in horror movies and novels. Some outlets will focus on his access to guns, while others will focus on his reported targeting of Christians and religion. Still others will scream "false flag!", sadly undermining the very real lives lost and lives shattered through injury and terror. Too many of us, a majority of us, will ingest the news of the shooting in the medium and outlets of our choice, chosen specifically because that medium and outlet feeds us the meal we want the way we want it. Cable news started this, of course, planting flags of partisanship in a realm once at least thought to be dominated by facts. Spin-masters will work their magic, taking dead bodies and boldly morphing them into causes and outrage. Meanwhile, the shooter gets exactly what these shooters want: fame. Rather than employing the seriously genius "some asshole initiative" by refusing to name these shooters or focus on them in any way, we'll do the opposite and turn on the spotlights. We will be distracted.
Put another way: we will retreat. Retreat away from the horror of death and into the comforting arms of the outrage that lets us feel like it all means something else to us. Here's what you'll see. A discussion about guns will arise before quickly falling away and nothing will happen. A conversation about 4chan, and other internet sites, and whether or not more needs to be done to police the internet looking for potential killers will be sparked, but nothing will happen. Some will lament the decline and/or targeting of religion in America, wondering aloud, stupidly, if too much religion or not enough of it is responsible for the killings, but nothing will happen. Violent media, be it games, movies, or novels will be trotted out as sacrificial lambs for our anger, but nothing will happen. From the fringe will be another crowd, bleating that none of this actually happened and that it's all fake news and actors playing out a game of gun-snatching that never seems to actually materialize, because nothing ever happens.
Why? Because we retreat to fragmented media and mediums that focus our outrage onto the target of our choice. Facts matter little if at all, as one can tell by the speed with which reports and reporters begin funneling our outrage. This is a problem, one started by mass media and continued, unfortunately, on the internet. There's nothing wrong with choice, of course, when it comes to us choosing our media outlets. The problem as I see it is when the choices become fragmented by political or ideological lines. The fact that we can name a media outlet and guess with an unfortunate amount of accuracy exactly what spin will be put on the reporting of a mass shooting is a problem. The answer to that problem is, as usual, the dropping of ideology, of political dogma, of the retreat. So, as you read the news about this reporting in the coming weeks, notice the rush to find factors of blame and reject them.
The news is that this was a tragedy. The sad news isn't just that we're not going to do anything about it, but rather that we're not going to do anything about it even though we all have a cause in it.
In trademark disputes and their resolutions, it's not often that I see a pure headscratcher. That is to say, I rarely see a ruling on a trademark dispute and find myself at a loss for all explanation. This is, however, one of those cases. The dispute is between Black Forest Games, makers of a game entitledDieselStormers and Diesel the company, which makes clothing. The problem arose over a year ago, it seems, when Diesel reached out to Black Forest Games about the title of the game, expressing concern that it was a trademark violation of the Diesel brand.
The dispute began in July 2014 when Black Forest Games, maker of Giana Sisters: Twisted Dreams, received a trademark claim from Diesel over the name of its co-op arena brawler, Dieselstormers, which was funded through Kickstarter and released to Steam Early Access in July 2014. The Italian clothing manufacturer had claimed there would be a "likelihood of confusion" if Dieselstormers received its own trademark. Diesel's trademark covers things outside of clothes, such as toothpaste, walking sticks, Christmas tree decorations - and games.
"In all probability an understanding will be reached as Black Forest have no intent to create clothing under the Dieselstormers brand," the developer stated at the time, before adding, "the 'Diesel' part of Dieselstormers refers to the liquid fuel type of the same name and is not a parody of the fashion brand."
Turns out no understanding was ever reached, however, and Diesel ended up taking the dispute before the EU Office for the Harmonization in the Internal Market (OHIM). At issue was Diesel's registration of their trademark "Diesel," including in the marketplace for games. The reason why the developer kept referring back to clothing, including in the quote above, is because Diesel doesn't make games. Like, at all. And Black Forest Games doesn't make clothing using the "Diesel" mark. In other words, for the OHIM, there was no internal market to harmonize, because there was no conflict. If anything, Diesel had registered a trademark for a market it wasn't participating in, which is typically grounds for the loss of the trademark. Nothing about this seemed to make sense.
Unfortunately, the OHIM is apparently in possession of logic that I don't have access to, because it is forcing Black Forest Games to change the name of DieselStormers to something else.
Now, over a year later, the Office for the Harmonization in the Internal Market (OHIM), which rules on trademark matters in Europe, has decided in Diesel's favour - and forced Black Forest to come up with a new name.
"This decision has caught us with our pants down," said Black Forest boss Adrian Goersch. "We are quite surprised that our trademark application has been formally denied. We are no multinational corporation, we cannot fight this decision, even though, frankly, it is a disaster with indie marketing as difficult as it is today. But the history of this game and our company as a whole has been marked with tough challenges and we will manage to overcome this one as well. First of all, we will make sure everyone will be able to keep playing the game, then we'll come back with a new name."
And why? Because a clothing company registered a trademark in a marketplace it isn't participating in and then had the gall to push around a small game developer over it. Whatever you might think the purpose of trademark is or should be today, it sure isn't this.
Last year, we discussed the silly defamation case brought by Andrew Rector, baseball fan(?), that ESPN's cameras showed to be sleeping(!) at a Red Sox v. Yankees game. The commentators on ESPN had some fun at Andrew's expense. Quite mild and tame fun, it should be noted. But several websites picked up where they left off, and some comments left on those websites were less than friendly to Rector. For this, Rector filed a $10 million defamation suit against ESPN and the commentators, John Kruk and Dan Shulman. It looked bad on the basis of both the law, as well as the ability of whoever filed the suit to use a spellchecker and basic logic.
While Rector’s lawsuit alleged that he was subjected to an “unending verbal crusade” by the ESPN duo, the assorted putdowns referred to in the complaint actually appeared in the comment sections of online articles about Rector nodding off during the game. Two comments cited in the lawsuit referred to Rector as a “fatty cow that needs two seats” and a “confused disgusted and socially bankrupt individual.”
In a decision issued last month, Judge Julia Rodriguez ruled that Shulman and Kruk made none of the nasty comments attributed to them in Rector’s complaint, adding that “none of the comments actually made by the announcers” was defamatory or false. Rodriguez added that, “At worst, the announcers’ comments might be considered to be loose, figurative or hyperbolic statements which are not actionable.”
Which, you know, duh. The idea that a person might snooze in a public venue where a telecast is occurring and then get upset because third parties saw footage of him sleeping is a logical bungle to begin with, but adding the money-grab feel of a multi-million dollar defamation suit against people who never said the things the suer is upset about represents such twisted brain-pretzels that it's actually hard for me to think about. Not every offense is actionable, after all, and the civil courts are not the place to rectify embarrassment in this way. The nature of the claim in Rector's original filing probably didn't help his cause, either.
Rector, a used car salesman, claimed in a court affidavit filed earlier this year that the ESPN broadcast--which he termed “bullying”--caused “enormous grief and embarrassment and affected my ability to work and go about my daily activity.” He added that, “people have avoided dealing with me. Insurance companies now consider me a high risk.”
And he thought the best way to move past all of this supposed damage was to ensure his name remained in the spotlight with a lawsuit? C'mon, son.
It's becoming quite a period of time for the profane when it comes to interacting with law enforcement, apparently. We had just recently discussed one man's victory in federal court over a town that didn't appreciate him writing "Fuck your shitty town bitches" on a speeding ticket he'd mailed in. Well, back in 2012, another delightful human, Thomas Smith, was apparently arrested for being an ass on the Arena, Wisconsin, Facebook page.
In July 2012, the Village of Arena in Wisconsin posted a note on its Facebook page announcing a slew of arrests. Smith then posted "Fuck ths fucking cops they ant shit but fucking racist basturds an fucking all of y'all who is racist," as well as "Fuck them nigers bitchs wat you got on us not a dam thing so fuck off dicks." He was arrested for disorderly conduct and unlawful use of a computer and telephone. He was originally convicted by a local jury, but that decision was overturned by the Wisconsin Court of Appeals, which ruled Smith's First Amendment rights were violated.
Um, yeah, memo to the police in Arena: being a jerk to police, calling them names, and using deplorable language is no more a violation of the law than blatantly mispelling the insults themselves and using the kind of grammar that I actually kind of wish would get people thrown in the clink. Likely the jury was presented with what Smith had written and decided he was a jerk and ruled against him. That doesn't change the fact that the arrest and conviction were both unconstitutional, of course. And, after Smith and his attorney sued the village, the village agreed, settling with Smith for $35,000.
Smith and his attorney, Tom Aquino, sued the village for an unspecified amount. Wednesday, the village settled with him, according to Aquino.
"We have always believed that the defendant’s liability was clear. Federal and state courts have routinely held that the right to free speech is not limited to polite speech alone," Aquino wrote in a blog post. "In our country, we are entitled to criticize our government with passion. The use of some four-letter words in the course of doing so is never a crime."
It can't be easy to be a good cop and have to endure a profane tirade on a public town Facebook page, but that doesn't excuse the violation of basic civil rights in retaliation. And Smith's speech, while lacking poetry and panache, is certainly protected. It's about time law enforcement realizes that profanity is still free speech so that they can stop costing municipalities this kind of settlement money.
A brief review of the available record shows that Facebook and Germany have always had something of a contentious relationship. Past examples of this have included Germany trying to influence Facebook's really dumb "real name" policy, Germany trying to get Facebook to drop its facial recognition database, and even Germany attempting to outlaw the "Like" button. The context in most of these instances is a German government perhaps still rather touchy with a sordid, if decades-old, history and its overcorrection on matters of privacy and speech. The latest is no different.
"I think we have to work on that," Zuckerberg told Merkel during their meeting on Saturday on the fringe of the United Nations Sustainable Development Summit in New York.
Facebook has been much criticized in Germany for not doing more to shut down hate speech on its network during the refugee crisis, with Justice Minister Heiko Maas a leading voice calling for better moderation on the site. At a meeting with Maas earlier in September, when the minister demanded faster procedures to get hate comments removed, Facebook agreed to set up a working group to look at the problem.
It's the age-old question on matters of free speech: how do we handle speech the public generally finds unacceptable? And, to be fair, it's not the easiest question to discuss, because free speech advocates find themselves within the ranks of some truly horrible people who say some truly horrible things. Racism and bigotry is, of course, not acceptable as a matter of morality and public discourse. But should it be hidden by corporate interests at the request of the government of a free people?
No, it should not. And, when we slide emotion to the side, it's quite easy to see why not. First, on matters of comments that involve threats or calls to violence, we already have laws on the books (as I assume Germany does as well) to deal with that. Indeed, rather than disappearing the comments from social media, law enforcement would likely want to have those comments on hand should a crime for incitement or menacing have been committed. For charges of racism and hate speech, on the other hand, I would argue that the need for exposure of the bigot outweighs any, if there is any, harm done by the speech. Put another way: if there are racist assbags in the world, do you want to allow them to identify themselves, or shall we allow social media sites to put up a veil so that we can all pretend that everything is right with the world?
Zuckerberg is allowed to do with Facebook as the site's corporate interests please, but as an American leading a company that can only continue to benefit the world through the free exchange of ideas if the site rests on the principles of free speech, I would hope he might be cautious in what promises he might make that violate those principles.
It's a common refrain whenever we discuss trademark disputes that appear to be barely-necessary, if necessary at all: companies must protect their trademarks. That's not actually true, of course. What a company must do, actually, assuming it wants to be good at company-ing, is it must maximize its revenue, profits, and exposure and be as successful as it can be. If that means protecting its trademark interests in a valid way, so be it. But that isn't always necessarily the case.
Take the recent news about Gosling's Rum and its apparent attempt to enforce its questionable trademark over the drink-name "Dark n' Stormy." Now, I've known about dark and stormies for quite some time, having honeymooned in the Caribbean and having some close friends that are Cuban. Based on my prior knowledge, a dark and stormy is a cocktail of ginger beer mixed with black rum. It's absolutely delicious, by the way. Turns out, a true dark and stormy is made with Gosling rum, as the originator of the term were Royal Naval officers in Bermuda experimenting with Gosling Black Rum in the mid-1800s.
By 1850 Gosling’s Black Seal was a hot commodity. The liquor piqued the interest of nearby Royal Naval Officers, who tried putting it in the ginger beer they’d been brewing, to help with seasickness. The combination was delicious. The dark coloring, not quite as appealing, lead a sailor to famously remark that it was: “the color of a cloud only a fool or a dead man would sail under.” The Dark n’ Stormy was born.
What sounds like a legend has actually been well enough proven that the validation of the story factored into Gosling having a trademark approved on the term "Dark 'n Stormy." Now, I find it questionable that the name of a cocktail, particularly one with at least something of a descriptive nature, ought to deserve trademark protection. There's something different between "Dark 'n Stormy" and "Black and Tan", but is it enough difference to warrant a trademark when the latter doesn't get one? There's a reason cocktail names rarely get trademark protection. As my anecdote above demonstrates, cocktail mixers frequently substitute alcohol labels when making drinks. A rum and coke might be made with any number of rums.
But even if we put the validity of the mark aside for a moment, is the best business decision for Gosling really to go legal on anyone else who dares use the term "dark 'n stormy?"
In an 18-page complaint filed to federal court, E. Malcolm Gosling Jr. and his brother allege that the liquor conglomerate Pernod Ricard has committed federal trademark infringement. Their case stems from a recipe Pernod Ricard posted for a Dark n’ Stormy in 2014 on its website. The drink calls for ginger beer, just like Gosling’s original, but suggests a different main ingredient: Malibu Island Spiced Rum.
The lawsuit claims that Gosling not only invented the cocktail, but is the driving force behind its popularity today. The company owns not one trademark on the name, but five, extending to clothing, kits containing rum and ginger beer, “bar services,” and the premixed version of the drink.
And, yet, even as the complaint goes on to lament on all the time and resources Gosling expends promoting Dark 'n Stormies, nobody could seriously claim that the cocktail is any kind of household name. And Gosling has had decades to promote it. What if Gosling didn't go after this trademark violation? What if, instead, it allowed others to use the Dark 'n Stormy cocktail name? What if, by allowing the use, Gosling lost the exclusive rights to the mark entirely and the cocktail then was free to be promoted and pushed by any number of liquor brands? Or ginger beer brands? Or bars? And what if, after all of that promotion Dark 'n Stormies got without Gosling having to spend a dime or time to generate, what if then it capitalized on the exposure as the authentic rum, the only authentic rum, of a true Dark 'n Stormy? What if by relinquishing the control afforded by trademark, the company was actually positioned to make more money by selling more black rum, being the one true rum of a real Dark 'n Stormy?
Gee, if only we had some example to point to that demonstrated that sometimes forgoing the trademark resulted in a massive popularity boost.
Yes, the hot sauce whose creator when out of his way to not trademark anything is now more popular than nearly every other condiment brand that exists anywhere. Yes, David Tran is entirely too busy leaping into the swimming pool filled with money that my imagination insists that he has to give two damns about trademark law. Revenue trumps control, always. And perhaps if Gosling were willing to loosen its grip it might find itself too busy counting its money to remember why it bothered with this trademark stuff to begin with.
Workplace rules: who can understand them, am I right? I mean, they give me a computer at work and I'm not supposed to use it to find the most hilarious NSFW pictures possible? They give me co-workers but I'm not allowed to question them about exactly where they fit into the Illuminati conspiracy that may or may not be going on and why are you running away? My workplace encourages me to use social media in a responsible way, but I'm not allowed to unfriend people I don't get along with?
No, no I'm not. At least, if I worked in Australia I wouldn't be allowed to, according to the Australian government's Fair Work Commission, which recently claimed that de-friending a co-worker is a form of emotional immaturity in the workplace.
Rachael Roberts, a Launceston real estate agent, complained to the commission that she was bullied by her colleague Lisa Bird, leaving her with depression and anxiety. The Facebook incident took place in January this year, after Ms Bird allegedly called Ms Roberts a "naughty little schoolgirl running to the teacher" during an aggressive meeting in the tea room.
Ms Roberts told the commission she left the office crying and when she later checked Facebook to see if Ms Bird has commented on Facebook about the incident, she found that Ms Bird had deleted her as a Facebook friend. Fair Work Commission deputy president Nicole Wells said in her decision that the unfriending was unreasonable behaviour and that Ms Roberts had been bullied at work.
Can you hear that commotion off in the distance? That's a hundred-million workplace trolls throughout the world rejoicing as though it were troll-Christmas, because a ruling like this is not only nonsensical, but it's also a mandate that the trolled must continue to be trolled in the form of Facebook. Yes, upon review of the incidents that Roberts complained about, the ruling seems to indicate that Bird, whatever her feelings and interactions with Roberts might be, must continue to have her digital space invaded against her will. Even if Roberts is correct that Bird has acted like something of a jerk, and judging from the commission's other findings that seems to be the case, what business is it of government to mandate who a Facebook user must or must not continue to connect with both in and out of the workplace? Put more succinctly: what the ever-loving hell is going on here?
Well, here to provide a non-explanation is a lawyer who is about to not make sense.
Josh Bornstein, from Maurice Blackburn lawyers, argues the Facebook unfriending is bullying but only because it happened in the context of several other incidents.
"The Fair Work Commission didn't find that unfriending someone on Facebook constitutes workplace bullying," he said. "What the Fair Work Commission did find is that a pattern of unreasonable behaviour, hostile behaviour, belittling behaviour over about a two-year period, which featured a range of different behaviours including berating, excluding and so on, constituted a workplace bullying.
I love this kind of argument. Acting hostile towards the victim? That's bullying. Belittling them? That's a-bullying, too. Berating them and otherwise interacting with them in a negative way? Bullying. Cutting all of that off by ceasing communication with the person? Well screw you because that's bullying, too. I do believe this is the first time I've ever heard an argument for any kind of harrassment stemming from non-communication between two parties. The commission went so far as to decide that Mrs. Bird's defriending was emotional immaturity on the part of Mrs. Bird, and saying so in the context of discussing Mrs. Bird being a bully.
 The evidence of Ms Roberts as to Mrs Bird defriending her on Facebook immediately after the incident is supported by a contemporaneous text message between Ms Roberts and Mr Bird. 64 It was not refute by Mrs Bird in evidence. This action by Mrs Bird evinces a lack of emotional maturity and is indicative of unreasonable behaviour, the likes of which I have already made findings on. The ‘school girl’ comment, even accepting of Mrs Bird’s version of events, which I am not, is evidence of an inappropriate dealing with Ms Roberts which was provocative and disobliging. I am of the view that Mrs Bird took the first opportunity to draw a line under the relationship with Ms Roberts on 29 January 2015, when she removed her as a friend on Facebook as she did not like Ms Roberts and would prefer not to have to deal with her. I am satisfied that the evidence of Ms Roberts, as to the incident on 29 January 2015, is to be preferred and that the allegation of unreasonable behaviour by Mrs Bird in Allegation 17 is made out.
Experts about bullying appear to agree that this is an overreach by the commission.
Bullying expert Oscar Yildiz said the Fair Work Commission has set a dangerous precedent, and Ms Bird's actions on social media did not constitute a personal attack.
"In this case, what is the future threat? That this person has unfriended someone on Facebook? Well, big deal," Mr Yildiz said. "As far as I'm concerned that doesn't constitute bullying and it shouldn't. If it does, what the commission has done here is set precedent."
Of course it doesn't. If anyone in any part of their lives has a negative interaction with a person, it's a perfectly natural thing to un-friend them from social media. Hell, thousands of personal relationships take this course every single day. Government stepping in to decide who a person may or may not keep in their social media circles is an overreach of astounding proportions.
Several years ago, we wrote about a fan game that had been shut down by Hasbro because it incorporated My Little Pony intellectual property. Yes, an expression of fandom was bullied out of existence by Hasbro. The argument trotted out by those in support of the company was the same argument that's always trotted out in these instances: the company had to shut the game down, or else risk losing its trademark protections through non-enforcement of its rights. That's not actually true, of course. There were many smart business routes to go for Hasbro, including offering a low-cost license to the gamemakers to allow the project to continue. Hell, we've actually seen instances in which Hasbro has chosen to enable fans to do some things with MLP characters, such as these 3D printing capabilities. But Hasbro chose to be the bully. And how'd that turn out?
Well, the company essentially might as well have done nothing as far as the end results go. Yes, the fan game is back, albeit with a barely different name, fractionally altered game characters, and with the collective understanding by everyone looking at it that this was supposed to be My Little Pony in a fighting game but now isn't because trademark. What was Fighting is Magic has become Them's Fightin' Herds and it's every bit as insane as it sounds. Oh, and they actually got someone who has worked on MLP properties to boot.
Them’s Fightin’ Herds is a 2D PC (Windows) fighting game with adorable animals in an original universe designed by Lauren Faust (producer and developer for "My Little Pony: Friendship is Magic"; creator, director and developer for "Super Best Friends Forever"). It is the spiritual successor to “Fighting is Magic”, with improved gameplay mechanics and graphics, an entirely new (and awesome!) dynamic music system, a graphic lobby, and a whole bunch of new features.
So, let's review. A group of My Little Pony fans created a fan fighting game using the Hasbro property. Hasbro, rather than spending ten seconds looking for an amicable route that would protect its interests while allowing this expression of fandom to continue, instead decided to sic the lawyers on its own fans. Those fans complied and took the game down...only to slightly rework it to avoid the legal issues and are now releasing the game pending its crowdfunding campaign, which has managed to generate over $100k of its $436k goal in one day, as of the time of this writing. The game is blatantly similar to the original MLP game, save for the changes made to avoid Hasbro's interference. And it looks like the team has a good chance of cashing out in a major way.
So, the legal route got us all to a barely different place than we would have all been three years ago. How much time and money did Hasbro spend on this? And, whatever that amount was, was it worth it just to get us to what could have been passed off as a possible example of what the many-worlds theory would look like in practice? A barely different adjacent reality that is nearly identical to our own, save for a few ultimately meaningless differences? And, the better question, why didn't Hasbro learn this lesson the first time, when its legal action against Scrabulous resulted in the exact same outcome?
As I was poking around the interwebz yesterday morning, I came across an interesting project one fan of Mad Max: Fury Road had made. To preface this, if you haven't seen the movie, shame on you and all of your ancestors. It's two hours of mind-blowing nonsense wrapped up in an action film that appears to be attempting to be the definitive action film moving forward. That said, director George Miller has also made some comments about how he would have preferred to have the film edited in black and white, with limited to no dialogue and the musical score taking center stage.
Well, one fan went ahead and worked to produce Miller's vision. The resulting movie was strikingly different and resulted in a very different experience compared with watching the movie. If nothing else, it was a wonderful example of the power of dialogue, editing, musical scores, color and sound. The person responsible for the edited film put it this way.
George Miller has said that the best version of his film is in black and white, with no dialogue. BLACK & CHROME is an attempt to realize Miller’s alternate vision. The cinematography, the editing, the sound design, and the score, are now represented in a completely new experience.
I do not own the rights to this video. All rights belong to its rightful owner/owners. No copyright infringement intended. This is merely an exercise and study of the art of filmmaking.
But before you go rushing to check out this awesomeness for yourself by clicking the link above, you should know that this is what will greet you.
Yes, in an outcome that I predicted immediately after I shared the fan project with the rest of my Techdirt compadres, it appears the video has been taken down over copyright issues. And that's dumb on a variety of different levels. First, the takedown itself wasn't necessary. Nothing about Black and Chrome competed with Fury Road. The entire point of the fan project was to show just how different small changes could make the overall experience. Those experiences were unique enough to be non-overlapping from the film viewer's perspective. This is just a control power move by whoever made it.
But I'm not entirely certain fair use shouldn't come into play, as well. As a matter of art, the project is undeniably transformative. Certainly there is little effect on the original work to consider, save perhaps for an increased likelihood that others will want to see the original after seeing the fan-edit. That said, a significant amount of the original work is used to make the derivative, so I'm not sure it goes far enough for fair use. Regardless, the creator of the fan-edit appears to be taking the takedown well.
Thank you for liking, sharing, and watching BLACK & CHROME. This is it for now. Your response has truly shown what the joy of movies is about. Hopefully, the right person(s) will have WITNESSED this and we can look forward to an official version of Mad Max: Fury Road in black and white. The film has lived, and has died, but can it live again?
It's just too bad the film wasn't allowed to become a fun bit of experience for Mad Max fans everywhere.
As you may or may not recall, way back in the distant past of 2012, we discussed a somewhat important court ruling over publicity rights. The case concerned the estate of Marilyn Monroe, America's most famous long-dead Presidential-birthday crooner, and AVELA, a company that specializes in producing nostalgia merchandise. At issue were consumer products AVELA had affixed with images of Monroe and a then-recent change in California law that applied publicity rights to dead celebrities that had lived in the state at the time of their death. The Monroe Estate, which had long argued that Monroe did not live in California in order to evade paying the estate tax, suddenly reversed course and claimed California as Monroe's home afterall. The court saw through this and ruled that posthumous publicity rights didn't apply to Monroe.
But because the kind of people looking to bank off of the likeness of a relative who died five decades previously aren't the kind of people likely to give up on the endeavor simply because justice isn't on their side, the Monroe Estate is back, attacking the same AVELA company for the same perceived infractions, except now they're making their claims under the auspices of trademark law.
The Monroe Estate is now in court against AVELA, a company that specializes in nostalgia merchandise, and is asserting that goods featuring Monroe are a violation of trademarks. In a motion to dismiss, AVELA argued that the trademark claims are "a thinly veiled attempt to assert a right that does not exist — a right of publicity in Marilyn Monroe.”
In her opinion on Friday, U.S. District Judge Katherine Polk Failla spells out the difference between publicity rights and trademarks. "The key distinction between a right of publicity and a false endorsement claim is that the latter requires a showing of consumer confusion," she writes. Shrugging off other objections including the implausibility of the Monroe Estate's ownership and the viability of a false endorsement claim on behalf of a deceased celebrity, the judge allows the lawsuit to proceed.
And so, with the judge's ruling, there will now be a court hearing over whether the public might be confused that a dead pinup model and actress may have zombie-endorsed some coffee mugs. Ain't America grand? There's quite a hill to climb for the Monroe Estate to demonstrate any kind of likelihood in customer confusion, as the death of Marilyn Monroe is kind of well-known. It ought also enter into the equation whether or not people even consider the idea of an endorsement when buying a trinket emblazoned with a historical figure's likeness. Past court cases are unlikely to help either.
Of course, the Monroe Estate still has to win on the merits and this might not be clear cut. For instance, the opinion mentions a prior case where Fred Astaire’s widow sued over the “Fred and Adele Astaire Awards" and failed because the plaintiff was unable to show “that consumers will be deceived into believing that the late Fred Astaire endorsed defendants’ awards."
While this case shouldn't take long to adjudicate if judged on the merits, what is clear is that this kind of harrassment legal action whereby one party loses a decision and simply decides to employ another form of intellectual property on the same grounds should be slapped around by the courts. IP law isn't done by shotgun blast, after all. Or, at least, it isn't by those with an ounce of integrity.
FACT, the UK's anti-piracy group that has long waged war on cammers and occassionally likes to cosplay as law enforcement officers, has built quite a reputation for itself throughout the years. That said, as I find with most of these copyright and entertainment groups, I just can't seem to make sense of their lexicon. Only recently, FACT has made it publicly known that it is upping its battle against in-theater cameras that might record the upcoming Bond film, Spectre.
Due to the national and international importance of Bond’s latest outing, FACT have issued a somewhat unusual proactive anti-piracy statement, presumably to deter would-be pirates from leaking the movie.
“James Bond is a big risk and we will be working with cinema operators and the distributors making sure we will keep that as tight as possible. We really don’t want to see that recorded,” says FACT director general Kieron Sharp. “The bigger the film and the more anticipated it is, the higher risk it is. We have staff on extra alert for that. They are on alert, particularly with the bigger films like James Bond, to really drill down to who is in the auditorium and who might possibly be recording.”
Except that's almost never the case. Risk -- assuming that FACT means financial risk at the hands of piracy -- is almost never really a factor in the AAA, box-office busting films. In fact, it's quite easy to draw a correlation between the box office success of a film and the levels to which it's pirated. Why? Well, because of the not complicated reason that good movies are good and people, all people, want to see good movies. Paying customers want to see good movies, as do those willing to pirate. Piracy doesn't necessarily make films successful, but it sure doesn't keep the massive releases from being successful, either. And it seems everyone kind of knows this.
While FACT are always keen to deter pirates, why the special fuss over Bond? The profile of the movie and its commercial importance are obviously key factors since Spectre is likely to be one of the biggest box-office hits this year.
So FACT is ramping up the war on piracy because it knows that the film is going to be successful? How does that make even the tiniest bit of sense? Now, as for the real reason the industry is so concerned, it's because that same industry is going out of its way to make piracy a natural remedy for its own stupid release windows.
The real surprise here is that UK pirates are being given almost two weeks to record Spectre and begin online distribution before it hits cinemas in the United States and the rest of the world on October 6. That probably goes a long way to explaining why FACT are being forced to implement extraordinary security measures – a U.S. pre-release is exactly what the anti-piracy group is trying to avoid.
But why take the chance that someone slips through the net? Hollywood knows that these windows fuel ‘camming’ yet MGM and Columbia are apparently prepared to risk “the most damaging form of piracy” by leaving the entire world dangling for 12 days while potentially millions of illicit copies of Spectre float around the Internet.
And, make no mistake, those illicit copies will certainly be available. In other words, the industry was faced with two choices to deter piracy: it could valiantly fail to keep any camming from happening and being released on the internet or it could adjust to the reality of the market and release the film worldwide at the same time as the UK release. It chose the former, because apparently playing some kind of spy game to police a spy movie while not accomplishing anything is more fun than actually barely-altering a business model to give customers what they want.
The TSA, it appears, is just simply bad at everything. The nation's most useless government agency has already made it clear that it is bad at knowing if it groped you, bad at even have a modicum of sense when it comes to keeping the traveling luggage of citizens private, and the TSA is especially super-mega-bad at TSA-ing, failing to catch more than a fraction of illicit material as it passes by agents upturned noses. And now, it appears, the TSA has demonstrated that it is also bad at pretending to give a shit.
In case you missed the recent news, the TSA's specially designed master key to open all of the specially designed TSA-recognized luggage locks were especially super-hacked by someone with access to such privileged information and equipment as a newspaper subscription and a 3D printer. By using a picture in the Washington Post of a TSA agent's master key and some documents from Travel Sentry, a group that generates and enforces TSA protocols, one security researcher was able to create 3D printer files to create his own master key.
Steven Knuchel, a hacker/security researcher who goes by Xylitol or Xyl2k, used the detailed images obtained from the Travel Sentry website to create the kind of files that 3D printers use to produce models. Since the files were first published, several people have demonstrated that they work, using inexpensive 3D printing plastic called PLA.
So, hey, that's probably bad, right? I mean, here we have the TSA recommending passengers lock their luggage with locks designed with a TSA-backdoor in the form of a master key, and now anyone can make the master key. That would seem to leave thousands (millions?) of passengers' luggage vulnerable to break-in. Not a great look for an agency designed with no other goal beyond security. The TSA response?
“The reported ability to create keys for TSA-approved suitcase locks from a digital image does not create a threat to aviation security,” wrote TSA spokesperson Mike England in an email to The Intercept. “These consumer products are ‘peace of mind’ devices, not part of TSA’s aviation security regime,” England wrote.
Yes, that's correct. Upon being informed of the TSA lock master key hack, the TSA essentially went with the "we don't give a shit" approach. I will say, at the very least, that it's somewhat refreshing to hear a government representative admit that at least some part of aiport and passenger security boils down to the feel-goods, but I'm of the opinion that a security agency unconcerned about security probably shouldn't be allowed to exist any longer. Especially when that same agency has been touting those same useless locks for years to passengers.
The larger point, of course, is that this is inevitable when you build security with backdoor access.
Nicholas Weaver, a computer security researcher at Berkeley, wrote on the Lawfare blog about the TSA locks and how they are “similar in spirit to what [FBI] Director [James] Comey desires for encrypted phones.”
Xylitol, the GitHub user who published the blueprint of the keys, said that was his point. “This is actually the perfect example for why we shouldn’t trust a government with secret backdoor keys (or any kind of other backdoors),” he wrote in an email to The Intercept. “Security with backdoor[s] is not security and inevitably exposes everyone.”
That's an axiom that other government agencies might want to pay attention to. The breaking of TSA locks wasn't even particularly difficult. If the government truly wants security on the networks of the American people, be the computer, phone, or otherwise, building in government backdoors provides the perfect entry point for bad-actors. If they actually want security, leave the backdoors out, or they risk looking every bit as dumb as the TSA.
That's not how a debate works, friend. The person asserting something has the burden of proof. In other words, all is allowed save until an argument against it can be constructed. If violent games had a net-zero benefit, then they should not be banned. A lack of benefit isn't a reason to exclude.
"what's the objective opposite of "cause harm to others"? It's not simple."
The objective opposite is "that action, idea or speech which causes the maximum benefit or happiness to others." These issues MUST start at the macro level before we talk about the micro, but an objective good is that which benefits the most people in the most quantity while correcting for any harm or negative impact on others.
In other words, it ends up being a math equation. If you can weight the good done to the people concerned while subtracting the weighted (where we can argue about how we weight this), you get a number. Positive numbers are objectively good, negative numbers are objectively bad, and some outcomes can end up more or less good or bad based on their number. How we arrive at that number is insanely complicated, and it never really is a number, but our own intuition, but when we take moral questions down to their bedrock, this process becomes evident.
Take gun control, for instance. Let's say as a hypothetical we know or have strong reason to believe that outlawing all firearms everywhere in our country will lead to 1000 less deaths per year in the country (I'm not saying this is even remotely true, just a hypothetical). Let's say we also know that outlawing these guns will have a negative impact on hunters, on people who might need them to protect themselves (and may indeed be counted as deaths from crime if gun bans were enacted), and that there is a loss of freedom, however great or small that freedom might be. The moral question is does value of the negatives outweigh the positives of the 1000 lives, understanding we have to take into account who those 1000 lives are, how they live, how, if at all, they contribute to their own deaths, etc. It's complicated, but the process is simply a weight of benefit versus harm.
"I'll let that "good speech" comment slide here as that didn't come across objective (what exactly is good speech anyway? That's subjective)"
I really do hate that kind of cop out. What it does is to paint morality as some kind of subjective thing that cannot be quantified, discussed logically, or expressed in any kind of scientific terminology, which I think is laughably false. Morality is subject to all the same material laws the rest of our world and philosophy is subject to. Areas of moral ambiguity or areas in which we simply haven't applied enough thought capital to, or areas where a moral certainty might not exist (areas of which I think there are less in quantity than most people think).
If what I said above is true, than there can certainly be "good speech" as an objective reality. We just need to train our brains to understand how to see morality and goodness in a consequential or even scientific light....
I think we can dial your sentiment back a bit. I don't think the answer to hate speech is to "get over it." I think the answer to hate speech is better, more logical, good speech. We're all competing on the field of ideas and its important that bad ideas aren't left lingering or unchallenged.
"If someone steals stuff out of your luggage, that's no fun for you, but it does not pose a threat to aviation security"
In which case why are the TSA pimping locks that have been made useless? If the TSA is pimping the locks, then it means it involves security. If it doesn't, then the TSA is pimping locks for other reasons, a notion I find extremely tantalizing....
"Having a picture of him with the much darker-skinned cop who was involved in all this totally undermines that whole narrative, but we'll just pretend that didn't happen. Nope, this is all about racism, folks!"
So....your contention is that an African American can't be racist against an Arab-American or a Persian-American? In other words, there's white people and then everything else is lumped together? I love when someone's claim that there's no racism in a story in itself shows their subtle racist bias....
I'm confused as to who is actually sitting on a couch and watching the weather channel rather than taking a cursory look at the Weather.com widget on their smart phones? Isn't the TV portion of all of this completely outdated and unnecessary?
All: you should be seeing the new text at the top of the post, discussing how completely fuck-fooled I was by the two hoax sites I linked to in this post. Thank you, as always, to our community for pointing out that these were hoax sites.
Please know that I fucking hate getting fooled like this....