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About Dark HelmetTechdirt Insider

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.

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Posted on Techdirt - 21 September 2017 @ 7:21pm

Dispute Between Roberto Escobar And Netflix Over 'Narcos' Gets Weird: Licensing Talks And A Dead Location Scout

from the even-stranger-things dept

Last year we discussed a dispute between Roberto Escobar, brother of the infamous drug kingpin Pablo Escobar and the Medellin cartel's accountant, and Netflix over the latter's hit show Narcos. It was a strange dispute for any number of reasons, ranging from Roberto Escobar's demand for one billion dollars and the rights to alter content in future episodes to the fact that Escobar's demands didn't lay any actual claim to any intellectual property in dispute, all the way up to the fact that Narcos doesn't actually portray Roberto Escobar at all. Much like the silly dispute between Activision and Manuel Noriega over publicity rights, it was pretty much assumed that this nonsense would be done away with more quickly than a federal informant working on the inside of the cartel.

Sadly, however, this still appears to be a thing, and it's getting quite strange. For starters, Escobar's legal team claims that a capitulation of sorts by the show might be in the works. It all starts as you'd expect, with the legal team for Narcos detailing via a letter how silly Escobar's claims are, as well as how plainly false the applications Escobar subsequently made for trademarks on terms and titles from the show were.

Narcos Productions, LLC (NPL) — the company behind the series and its popular video game spinoff Narcos: Cartel Wars — contend that without NPL's "knowledge or consent, on Aug. 20, 2016, Escobar filed use-based applications to register the marks NARCOS and CARTEL WARS with the [U.S. Patent and Trademark Office] covering a range of goods and services." Those services include everything from "downloadable ring tones" and "sunglasses, decorative magnets" to "temporary tattoos, bookmarks and sheet music," according to the trademark application documents included with the letter. The letter calls the claims "fraudulent."

"For example," writes NPL attorney Jill M. Pietrini, "Escobar claims that it has used NARCOS in connection with things like 'operating a website' and 'game services provided online from a computer network' since Jan. 31, 1986. However, the internet had not been developed for widespread consumer use in 1986, nor was the capability to provide audiovisual works nor game services available at that time."

So basically the lawyers for the show are demonstrating how flimsy Escobar's attempts to setup a legal way to extort the show are. Trademark law is quite clear on the rights it affords to those who are the first to use a trademark in commerce and ought to act as a shield to these attempts. Despite that, emails obtained by THR from Escobar's legal team to Escobar himself seem to indicate that Narcos is considering just paying Escobar to go away anyway.

In a subsequent email correspondence obtained by THR and dated Sept. 1, an attorney for Escobar Inc. at Century City-based Browne George Ross LLP informs his client that he and Pietrini had a productive conversation about the claim.

"I floated the idea of paying you for an assignment or license or release related to your pre-exisiting rights in the trademarks in certain categories," Wesley writes. "She seemed to see the logic of exploring those discussions. She is going to speak with her client and get back to me."

While there is no clear commitment to a licensing deal there, the entertainment industry is notorious for paying people like this to go away, so it's not entirely out of the question. Given the clear legal framework here, however, as well as the personalities involved on the other side, it strikes me as fairly ludicrous that the show's producers would want any part of paying a former member of the cartel for no clear legal reason. Escobar's lawyers are making a lot of noise about how if Escobar chooses not to settle for whatever Narcos might be willing to pay him, then they "own the trademarks", which certainly is not remotely true here in the United States.

Adding to how strange all of this is would be the fact that a location scout for the show, Carlos Munoz Portal, was murdered in Mexico in recent weeks while scouting locations for Narcos' fourth season. While the facts surrounding Portal's death remain unknown at the time of this writing, Escobar has been rather cryptic on the topic.

Speaking Monday to The Hollywood Reporter, Escobar's 71-year-old surviving brother, Roberto De Jesus Escobar Gaviria, suggested the show's producers are not cut out for filming in such cartel-infested locales as Mexico and Colombia, adding that they would benefit from the hiring of "hitmen ... as security."

As for whether or not anyone at Escobar Inc., including Gaviria, currently has any knowledge regarding what happened to slain location scout Portal, Gustafsson would only offer, "No comment on that. But Escobar Inc. cooperates with all law enforcement."

It's as likely as not that Escobar is merely playing coy on this topic to add some gravitas to his threats and demands to Narcos and Netflix, but the comments are chill-inducing considering the source. Regardless, the merits of the trademark claims at hand remain fairly clear. Talks of Narcos capitulating or not, it's difficult to imagine a $1 Billion payday for Escobar coming anytime soon.

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Posted on Techdirt - 21 September 2017 @ 10:45am

What Netflix's Congenial Trademark 'Threat Letter' Says About Everyone's Tolerance For Trademark Bullying

from the progress dept

Readers of this site will be well-versed in trademark threat letters. With the sorts of trademark stories we cover here, our discussion about threat letters typically take the form of trademark holders going out of their way either to overstate their rights or to act as aggressive and threatening as possible. Or, of course, both of those things at the same time. But not every company goes full bully when sending out trademark cease and desist notices, as exemplified by Netflix this week, when it sent out a notice to a Chicago popup bar called The Upside Down, an obvious reference to Netflix's hit show Stranger Things.

Writing to request an end to the use of its trademark, Netflix did not address the bar's owners in threatening terms or legalistic language. Instead, it appealed to the owners' appreciation of creativity and engaged with their shared appreciation of the Stranger Things brand, inserting references to characters and phrases from the show throughout the letter.

"Look, I don't want you to think I'm a total wastoid, and I love how much you guys love the show", the letter opens, "but unless I'm living in the Upside Down, I don't think we did a deal with you for this pop-up". It continues: "You're obviously creative types, so I'm sure you can appreciate that it's important to us to have a say in how our fans encounter the worlds we build";. Making its point firmly and clearly, but humorously and politely, the letter states: "We're not going to go full Dr Brenner on you, but we ask that you please 1) not extend the pop-up beyond its 6 week run ending September, and 2) reach out to us for permission if you plan to do something like this again."

The letter checked all the right boxes to not come off as bullying. The letter was both humorous as well as transparent in its effort to incorporate the fandom of the show into its language. It didn't promise punishment for any past acts, instead simply asking that the bar not extend its run even further and asking that it seek permission for its name for any future endeavors. Netflix didn't treat its fans as the enemy, but managed to act human while at the same time asserting its trademark rights.

For this, the company not only got the bar to agree to its request, but the letter received praise both in the media and on social media.

Netflix elicited a torrent of internet praise for its handling of the situation. Local news website DNAinfo reported on the "super classy letter", describing it as "adorably nerdy", and emphasizing Saul's lack of hard feelings towards the corporation. There was also positive coverage in the Sydney Morning Heraldand Fox News, while one blog lauded it as "the best cease-and-desist letter you've ever seen".

On social media, where reaction can often be the most negative, the responses similarly lauded Netflix for its enforcement approach. On Reddit, one user commented that the move was "totally reasonable and nice of them", with another calling the move "brilliant", adding: "In the age of Twitter, you don't want to anything to be used against you. Now it makes the pop-up look like bad guys for not reaching out to them."

What is most interesting to me about this story isn't Netflix's letter itself, although it was certainly nice to see a company get this so right. More interesting was both the media's and public's reactions to the letter, which seems to indicate that on some level the media and general public are waking up to trademark bullying and the fact that there are other ways to handle trademark issues beyond being a jerk. While I cover trademark issues all the time, I don't expect the everyman to have an understanding of ways to protect trademarks that goes beyond, "Company X has a trademark, so of course their lawyers sent out a threat." The reaction to this story seems to indicate that the public is beginning to understand that enforcing trademark law doesn't have to equal acting like a jerk. And that's a good thing.

If lawyers finally understand that being an overaggressive jerk can backire, it will make them think twice about using that approach. It will also convince lawyers that being congenial can go viral in ways that a company does want. These are good things that will be propelled by a public starting to understand that not every C&D has to be all threat and nothing but.

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Posted on Techdirt - 20 September 2017 @ 7:26pm

With Court Ruling, Fan Subtitles Officially Copyright Infringement In Sweden

from the sadface dept

Several years ago, in an unfortunate display of police bending the knee to the copyright industries, Swedish law enforcement raided the offices of Undertexter, a site chiefly dedicated to fan translations for subtitles of films. While these fan translations have been handcuffed to film piracy -- mostly through the messaging efforts of film and television content producers -- the raid registered as an extreme escalation in the battle on subtitles. Most folks have a hard time understanding why such action was taken, with most fan translations only being useful due to the content makers underserving parts of the earth that speak a variety of languages. These fan translations mostly open up those markets for makers of movies and television who have otherwise chosen not to translate their work into the relevant languages.

For its part, Undertexter vowed to fight the legal action, proclaiming its work non-infringing by virtue of serving up mere dialog translations.

Undertexter.se has had a police raid this morning (July 9) and servers and computers have been seized, and therefore, the site is down. We who work on the site don't consider an interpretation of dialog to be something illegal, especially not when sharing it for free. Henrik Pontén [the copyright industry's primary henchman in Sweden], who is behind the raid, disagrees. Sorry Hollywood, this was the totally wrong card to play. We will never surrender. [...] We must do everything in our power to stop these anti-pirates. [...]

Well, the fight is now over and, unfortunately, the man behind Undertexter has been convicted of copyright infringement.

The Attunda District Court sentenced the now 32-year-old operator to probation. In addition, he has to pay 217,000 Swedish Kroner ($27,000), which will be taken from the advertising and donation revenues he collected through the site.

While there were millions of subtitles available on Undertexter, only 74 movies were referenced by the prosecution. These were carefully selected to ensure a strong case it seems, as many of the titles weren’t commercially available in Sweden at the time.

During the trial, the defense had argued that the fan-made subtitles are not infringing since movies are made up of video and sound, with subtitles being an extra. However, the court disagreed with this line of reasoning, the verdict shows.

What ultimately happened here is that Undertexter had translations for a few films available legitimately in Sweden and the prosecution proceeded to essentially pretend like those films were the whole story. The reality is that sites like Undertexter are primarily useful because those legitimate options, including the relevant language translations, are not available. Sites like this are used by many who buy movies and television and then apply the fan-subs afterwards. Customers who would, in other words, not be able to be customers if not for the fan-subs. The piracy portion of these subtitles is incidental to the mission, in other words, but the copyright industries in Sweden claimed that piracy was really the whole point.

On the other hand, one wonders exactly how much Swedish tax money was spent to bring a guy who ran a subtitle site to the tune of probation and $27,000? Is this really the best use of everyone's time?

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Posted on Techdirt - 19 September 2017 @ 7:32pm

Court Allows San Diego Comic-Con's Suit Against The Salt Lake City Comic Con To Move Forward

from the groan dept

A few months ago, we alerted our readers that a trademark dispute between the San Diego Comic-Con and a company producing a Salt Lake City Comic Con, originally filed in 2014, was still going on. In fact, the district court hearing the case just recently ruled on several motions from both parties, including motions for judicial notice (essentially having the court affirm basic facts about the case), motions to exclude expert testimony, and motions for summary judgement. On the face of it, the news is mostly bad for the Salt Lake City convention, with nearly every ruling coming down against it. However, digging into the ruling itself, there is a light at the end of the tunnel.

As for the bad news, it seems to be mostly of the Salt Lake City Comic Con's own making, or the making of its legal team. The court points out that the defendant's lawyers motion and defenses are all over the place, in some places arguing for generecide -- or that "comic con" has become a generic term -- while in others arguing that "comic con" is generic ab initio -- or that the term was generic even prior to San Diego Comic-Con's initial use of it. It's an important distinction for a couple of reasons, including that the defenses SLC has stated it will make revolve around genericide, yet much of the evidence in the motions in this ruling revolve around generic ab initio and, more importantly, the 9th Circuit doesn't have any precedent or acknowledgement of generic ad initio as a matter of law, and this district court is governed by 9th Circuit precedent.

Unfortunately for Defendants, the Ninth Circuit has not recognized a genericness ab initio theory of defense. Instead, the Ninth Circuit very clearly states that there are only five categories of trademarks: (1) generic; (2) descriptive; (3) suggestive; (4) arbitrary; and (5) fanciful. KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 408 F.3d 596, 602 (9th Cir. 2005). No case law from this circuit separates genericness into two different types nor have Defendants provided the Court with Ninth Circuit precedent that adopts their arguments. Accordingly, as there is no dispositive basis or Ninth Circuit jurisprudence to accept an argument revolving around a generic ab initio defense, the Court GRANTS Plaintiff’s motion for summary judgment on this contention.

So, yeah, not a real good look on the part of the SLC's legal team. Later in the ruling, the court goes on to rule against SLC's motion for summary judgement, which was essentially asking the court to rule that "comic con" is now a generic term. The court declined to do so, moving the case forward. But it's important to note that the court, in a ruling that otherwise dealt somewhat harshly with SLC's lawyers, makes a point of noting that it did not deny the motion because Salt Lake City doesn't have the facts on its side. Instead, the court notes that in motions like this, favorable weight is generally given both to the plaintiff and to any holder of a valid trademark (the plaintiff again, in this case), and that's what precludes the court from granting a summary judgement. The ruling goes on to state:

After a careful review of the parties’ moving papers, the applicable law, and the evidence on the record, the Court finds that Defendants have satisfied their burden of demonstrating a genuine issue of material fact as to genericide. “Federal courts [] view usage of [a] term by competitors in the industry as strong evidence of how the public perceives them.” Classic Foods Int’l Corp. v. Kettle Foods, Inc., 468 F. Supp. 2d 1181, 1190 (C.D. Cal. 2007). “The more members of the public see a term used by competitors in the field, the less likely they will be to identify the term with one particular producer.” Id. Here, Defendants produce evidence that demonstrates that “comic cons” are held in nearly every state of the United States including New York Comic Con, Amazing Arizona Comic Con, Emerald City Comic Con, and Tampa Bay Comic Con. (Doc. No. 223-1 at 39, 101, 129, 160.) This evidence of over 100 competitors using the unhyphenated form of Plaintiff’s trademark strongly suggests that the mark is generic. Consequently, this is persuasive evidence of genericide. See CG Roxane LLC v. Fiji Water Co. LLC, 569 F. Supp. 2d 1019, 1027 (N.D. Cal. 2008) (holding that a competitors use of a mark is compelling evidence of genericness as it reflects how the public identifies the term).

Due to that, the court denied San Diego Comic-Con's motion to deny SLC that defense. So, when the trial moves forward now, it should be clear exactly what the defense by Salt Lake City will be: generecide. Given this ruling's opinion of the facts on that question, it appears that defense will be quite strong.

It's something of a canary in the coal mine for the SDCC, in other words. I somewhat expect we'll now hear more talks of a settlement before this goes much further.

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Posted on Techdirt - 18 September 2017 @ 4:01pm

The Most Popular Mod For Fallout 4 Is The One That Removes The Title Screen Crawl For Bethesda's 'Creation Club'

from the modding-out-the-mods dept

You may recall that a few years ago, Valve attempted to rollout a platform for video game modders to make money from their efforts. It was an altogether messy attempt for any number of reasons, but chief among them was that the modding community and ecosystem has long operated as a labor of love and not one in which money is exchanged past the point of asking for donations. What Valve attempted to do was fundamentally change that ecosystem without providing a great deal of transparency as to why. One of the primary early adopters of this system in the game publishing community was Bethesda, which opened up Skyrim, a game both wildly popular and one with a robust modding community, to this paid mods platform. In the wake of the backlash, Bethesda ended up refunding all of the mod purchases gamers had made.

But then it much more quietly rolled out its Creation Club, which was something of a paid mods 2.0 attempt. For Fallout 4 in particular, the Creation Club platform was one in which both Bethesda and outside modders could have additional content published for the game in a way codified and supported by Bethesda itself. Outside modding groups would be paid for this work and, in turn, gamers would pay for the content through Creation Club rather than buying the more traditional DLC. It was something of a trade, in other words. No annoying DLC, but pay for the mods of choice through Creation Club.

So, how is that going? Well, the Creation Club community is still there, but relative to most modding communities there isn't a whole lot being offered up, nor purchased. Despite a huge portion of the game's title screen now dedicated to a window for "Creation Club News", gamers don't seem to be adopting it en masse. Unlike, say, Nexus Mods, long the go-to site to find game mods for Bethesda titles. In fact, one of the site's most popular mods for Fallout 4 is a simple mod that gets rid of the title screen crawl for Creation Club.

Enter the “No More Creation Club News” mod by a modder named InAComaDial999. It’s currently the second most popular file of the month on Nexus Mods’ Fallout 4 page. It gets rid of the ad. That’s it.

I imagine, though, that people aren’t downloading this mod because they’re aesthetic purists. They want to stick it to the man, and this feels like a tiny middle finger they can deploy at will.

Look, there may be a way to make paying modders for their work a reality that doesn't almost universally piss off gamers. I personally am skeptical, because the modding scene has always thrived outside of the profit motive as a community. But whatever the answer to that open question is, it should be clear by now that paid mods 3.0 better have a significant amount of thought put into it compared to the first two versions.

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Posted on Techdirt - 15 September 2017 @ 1:29pm

Music Industry Is Painting A Target On YouTube Ripping Sites, Despite Their Many Non-Infringing Uses

from the targeting-tools-instead-of-infringement dept

Concentrated attacks on technology tools that can sometimes, but not always, be used for nefarious purposes have quite a long history, from Google and Wikipedia, to suing online sites like Craigslist over how users use the service. Even torrent technology itself, having become a four-letter-word that the content industry has managed to tether to copyright infringement, is nothing more than a tool with plenty of legitimate uses.

Well, it appears that the latest target in the music industry's crosshairs are sites that rip YouTube videos into MP3 format.

Last week the major record labels managed to take out YouTube-MP3, the largest ripping site of all. Still, there are many like it that continue business as usual. For many music industry insiders, who see streamripping as one of the largest piracy threats, this is a constant source of frustration.

In the UK, music industry group BPI worked hard to tackle the issue proactively. Last year the organization already signed an agreement with YouTube-MP3 to block UK traffic. This limited the availability of the site locally, but the group believes that YouTube itself should take responsibility as well.

The crux of the plan, according to industry insiders, appears to be to get YouTube involved to block these sites from ripping its content into audio format. Between complaining that YouTube hasn't threatened enough legal action of its own and some rather silly complaints revolving around Google "steering" traffic to ripping sites via autocomplete on Google searches of all things, something of a full court press appears to be on. And, in one sense, it's understandable. Music groups that allow their music to be on YouTube look for the advertising revenue that comes along with it. One imagines that running a video through these ripping sites doesn't trigger that same ad revenue, otherwise nobody would be complaining.

But here's the thing: there are a ton of legitimate uses outside of the music business to use these sites. I use them all the time. I primarily use them for videos that are essentially speech-based content so I can listen to them on the go. History lectures, public debates, reviews: they're all on YouTube, they're all perfectly listenable in audio format, and none of the makers of that content are shouting about YouTube MP3 rips.

So what we're left with again is the content industries attacking a tool with legitimate uses simply because some percentage of the public uses it in a way they don't like.

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Posted on Techdirt - 15 September 2017 @ 3:23am

Netflix Has Narcos Actors Threaten To Shoot The Families Of French People For Pirating The Show

from the bullets-for-you dept

First, let's all just take a moment to drink in that headline above. 2017, people: it's a weird time to be alive. In any case, you likely have heard of Netflix's hit original show, Narcos. The show follows the exploits of Pablo Escobar's drug organization and was once the subject of Escobar's brother demanding a billion dollars from Netflix over the portrayal. Netflix, of course, was the disruptive new streaming service for movies and television that has since decided to go the route of copyright protectionist now that it is producing its own original content. It's a strange look for a company that exploded on a model of convenience over piracy, raking in tons of legit dollars by simply being an option better than or comparable to pirating films and television. Rather than continuing to compete in that arena, the company has begun to go the way of Big Content, firing off all kinds of DMCA notices.

And now threatening to shoot people and their families for pirating Netflix content? Well, not really, of course. I'm sure the folks at Netflix thought it would be funny to have actors from Narcos do so in character in France. But watch the video Netflix put out for yourself.

If you cannot see the video, the TorrentFreak link above has a nice summary of it.

“Hey you, yes you, do you think you’re smart? Do you think we didn’t see you Googling ‘Narcos season 3 download’? Don’t be a fool. Narcos is a business,” Pepe begins.

“If you want your entertainment. If you want your show. You’re gonna pay the Cali Cartel, ‘hijo de puta’,” Pacho adds, using the strong language one expects from a cartel leader.

“Do you think we’re like Hadopi? Do you think we’re going to send you a nice and polite letter first? Please, sir / madam, could you please not illegally download Narcos? We don’t do courtesy letters.”

“There is no please, no por favor, no s’il vous plait,” Pepe adds.

“There’s bullets for you, your family, and all the people you send to watch Narcos on all those shitty websites full of questionable pop-ups,” Gilberto says.

“You know where to find us. Don’t mess around ‘hijo de puta’,” his brother adds.

It's just uncomfortable. Nobody is mistaking Netflix actors for actual hitmen, but it's worth putting this sort of thing in the context of the past decade, in which people really have had their lives ruined in retribution for copyright infringement. The threat letters from copyright trolls really do go out across Europe, looking for all the world like the legal arm of some extortion ring or mob organization. Threats to out people for their pornography of choice really have happened. Within that landscape, to joke around about shooting those who pirate a television show misses the mark on humor entirely, and coming from a company like Netflix it's downright creepy.

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Posted on Techdirt - 13 September 2017 @ 7:34pm

Chicago Bears Back Off GoBears Hashtag Dispute Over Trademark Concern With Cal

from the bears-win! dept

With the trademarking of hashtags now in full swing, it's about time some light was shone on exactly what type of trademarks are granted on them. The trademarking of hashtags isn't in and of itself perplexing, although it does cause this writer some mild annoyance. Locking up language in general is something that should be treated carefully, but doing so specifically with social media language in an ecosystem designed for proliferation and sharing is ripe for conflict. One need only look at how the Olympics treats hashtags to see this, or how big businesses will greedily "protect" the use of hashtags, no matter any actual concern about public confusion over the use of the marks. The point is, the same general problem with the practical application of trademarks is exacerbated by social media: trademarks too often aren't specific or identifying enough.

Recently, an example of this has emerged on Twitter in the form of a quickly-resolved dispute between the University of California and the NFL's Chicago Bears. Cal's mascot is "the Golden Bears", you see. The Chicago Bears somewhat irritatingly staked a claim to the hashtag #GoBears, such that the Chicago Bears logo appeared every time someone used the hashtag. The University of California holds a trademark on the hashtag, however, and the school's Twitter account registered its annoyance with the Chicago team in an admittedly congenial way.


Now, to be clear, what the Chicago Bears did was both dumb and irritating. Cal's response was not overly aggressive either. The end result of all of this was that the Chicago Bears backed off and the team logo no longer appears when the hashtag is used. There's no big bad villian in this story.

But we're not going to let this go without pointing out that #GoBears simply is not a source-identifying hashtag for the Cal Golden Bears. It's just not. There are a ton of teams that use some flavor of "bears" as their mascots. Here in Chicago, when someone says "go Bears!", there is no confusion as to the reference and the University of California never even enters the mind. So, instead of being a trademark designed to act as a brand identifier, instead this is simply an instance of a university locking up the term in hashtag form. It's exactly the same as what the Chicago Bears did, in other words, when it placed its logo alongside any use of the hashtag: claiming ownership and limiting the use of the term for everyone else. Given that the term is a terrible identifier of the product being discussed, it seems obvious that it never should have been granted trademark rights.

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Posted on Techdirt - 12 September 2017 @ 7:33pm

Another Craft Beer Brand Gets Bullied To Death Over Shaky Trademark Claims

from the mark-and-stormy dept

The warning bells for the craft beer industry have been sounding for some time now, but the trademark disputes keep on coming. Even as trademark registrations in craft beer grow exponentially and intellectual property attorneys themselves are predicting an explosion in disputes on the horizon, the legal cases and threat letters have begun to grow. What once was an industry known for cooperative and congenial attitudes on trademark issues has devolved into corporate protectionism. But inter-industry disputes aren't the only concern, as the explosion in the craft beer industry has also invited trademark disputes from those outside of the industry.

Trademark protectionists can now put another pelt on the wall, that of the Dark and Stormy Night beer made by Picaroons Traditional Ales.

The Fredericton-based craft brewery announced through social media it's putting the popular organic dark wheat beer "to rest" after losing a lengthy legal battle with another company over trademark infringement. The Facebook post does not name the other company, but Picaroons Traditional Ales owner Sean Dunbar confirmed it's liquor giant Goslings.

Picaroons received a cease and desist order from Goslings, saying the beer infringed on its Dark 'n Stormy cocktail, made with Gosling's Black Seal Rum and Gosling's Stormy Ginger Beer.

"We tried, you know, saying 'Please,'" Dunbar said. "We tried arguing that the two products really didn't have anything to do with each other."

Those arguments didn't work. And I would think such arguments shouldn't even be necessary for a couple of reasons. First, and, damn it, I'm going to keep shouting about this until the USPTO finally listens: not all alcoholic drinks compete in the same marketplace and trademarks should afford more subtelty to those market distinctions. Wine, beer, liquor, cocktails are all distinct items for a shopper. With sufficient differences in names and branding, nobody is going to mistake a wine company for a beer company, or a beer company for a liquor company. "Dark 'n Stormy" and "Dark and Stormy Night" aren't completely distinct, but they're distinct enough when placed on different types of drinks to be discernable to the common consumer.

And about that "Dark and Stormy Night" brand name itself. Dunbar claims he got the term for his beer from a Peanuts comic strip, which is perplexing to me because "It was a dark and stormy night" is a cliche opening for a work of fiction. That's what it's known for and, in some circles, it's used essentially as a joke that references a lack of creativity. A dark 'n stormy cocktail, however, references the stormy weather in the Carribean where the term was coined. I personally never would have made the connection from the beer's name to that of the cocktail, and I'm not sure many others would have either.

But, rather than fighting this out in court, Picaroons decided to cave and kill the brand.

Picaroons said in its Facebook post that the brew at the centre of the dispute had been in production for 11 years.

"We certainly did not go out without a fight, though after months and months we've officially lost the battle and are now retiring our lightest dark beer."

Dunbar said the company worked with a local trademark lawyer and "would have loved to defend it to the hilt," but decided taking it all the way to court wasn't worth the expense.

"Good bye old friend," the Facebook post said. "RIP."

And so another craft beer brand commits suicide rather than fight for its life in court, proving once again that trademark bullying works.

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Posted on Techdirt - 12 September 2017 @ 3:34pm

Las Vegas Police Union Fire Off Whining, Flag-Dripping Request To The NFL To 'Investigate' Michael Bennett For Saying Things

from the 'merica dept

If you have even a passing interest in American sports, you will likely already be aware that Seattle Seahawks player Michael Bennett has been in the news of late due to an incident that occurred in Las Vegas during the Mayweather v. McGregor fight. Police responded to reports of shots being fired in a casino where Bennett also happened to be and, in the chaos that ensued afterwards, officers put Bennett on the ground and cuffed him as he ran away from the shooting. For his part, Bennett claims the officer pointed his gun at him and threatened to "blow his fucking head off" and that the entire detainment was done without any reason other than his being a large black man. He was quite vocal about the incident on Twitter and during press interviews.

The Las Vegas police, not surprisingly, aren't loving how Bennett is characterizing what occurred. During a press conference of their own, LVPD representatives couldn't answer as to why Bennett was detained at all during the incident, nor could they explain why the detaining officer's body camera was off during the incident. Despite these shrugs at fairly apropos questions, the union representing the police officers, the Las Vegas Police Protective Association Metro, did manage to fire off one of the whiniest letters to the NFL asking them to "investigate" Bennett for... saying things?



There's a great deal there to unpack. The first thing that struck me was how badly the letter attempts to wrap Las Vegas police officers in the American flag. The NFL is currently going through a series of kneeling protests during the national anthem, an expression of rights that has some people quite upset. I'll leave that debate to the side for this post, but by calling the league out for that in the letter before saying it hopes the league won't ignore Bennett's comments about the LVPD, it sure sounds like Las Vegas police seem to think it deserves more respect than the American flag. Which is sort of a weird argument to make.

But the crux of the silliness here is that this is a letter from a police union asking a person's employer to investigate an employee for speech it claims is "false and defamatory." It should be obvious that there are legal relief avenues for the police if they feel they have been defamed. It rings as strange for the same police that detained Bennett to be whining to his employer, begging it to then investigate Bennett's conduct, which consists entirely of speech. The NFL has built a name for itself for its heavy-handed, top-down, overtly political approach to investigating its players. It seems pretty clear that this was a petty attempt by the police to then harass Bennett through his employer as a result of his choosing to speak out about his perspective on the incident for which the LVPD itself could not provide the relevant answers to pointed questions.

To be clear, I am making no judgment on the nature of the incident itself. Whether racism was a factor or not is an open question. That said, harassing a citizen for his speech on Twitter and in interviews by appealing to the authority of his employer is both weak and underhanded.

Update: This post has been updated to clarify that it was the police union that sent the letter, rather than the police department itself. We apologize for the original error.

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Posted on Techdirt - 11 September 2017 @ 7:42pm

Prelude To Disaster: Craft Beer Trademark Applications Have Doubled In Ten Years

from the litigation-to-follow dept

We've been sounding the warning bells on this for some time now, but the craft beer industry has a trademark problem. As the industry continues its explosive growth, bringing with that growth all of the benefits to the economy and to the public along with it, so too has grown the industry's use of trademarks on all of these new brands. What once was a relatively small cottage industry filled with congenial small players has morphed into very big business. Morphing with it has been that congenial attitude in the industry, with craft breweries now far more protective of their brands and far more willing to send out legal threats and engage in court battles over intellectual property than ever before. It's gotten to the point that even intellectual property attorneys are beginning to warn everyone that the lawsuits and threats are going to inevitably increase. This represents a roadblock to an otherwise thriving industry and it's only going to get worse.

That's because, in the last ten years alone, trademark registrations for craft brews have doubled in number, while just this past year at least one market has seen a twenty-percent increase in registrations.

Registrations for UK beer brands increased by 19 per cent in the last year, according to London-based law firm RPC. The number of new trade marks rose from 968 in 2007 to 1,983 in 2016. The firm said the wave of trademarking came in the wake of craft beer's increased popularity.

For anyone paying attention to the effect stringent trademark laws and our protectionist culture can have on an industry, the craft beer market is going to provide a wonderful lesson. If proponents of strict trademark law are to be believed, if trademark laws are generally benign or to the public benefit in other words, then the growth will continue. If those of us who have foreseen the coming disaster for some time are correct, however, growth will slow and trademark disputes will explode.

It's almost a perfect storm for this kind of thing. Craft brewing has elements both of skill and creativity to it. The industry long operated on the fringes of trademark law, with brewers rarely going to battle over creatively named beers and companies. While we've already stated that this practice has begun to change over to protectionism, the doubling of trademark registrations in only a decade's time within a rapidly growing industry, is the kind of outlier that will give us an answer to how trademark laws impact the industry.

Jeremy Drew, a commercial partner at RPC, said the craft beer sector has been "booming".

"With more players in the market it's becoming more important that companies protect their intellectual property," he said, adding that an increase in trademarks could lead to more legal disputes between brands.

It seems obvious to this writer that an increase in disputes will slow growth and scare off potential entries to the market. It may also result in breweries closing due to legal costs and disputes. If that indeed happens, it seems clear that the public is not benefiting from a craft beer market that isn't maximized, either in consumer options or in benefits to the wider economy. After a decade of explosive trademark registrations, the coming decade in the craft brewing industry is going to be very instructive.

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Posted on Techdirt - 8 September 2017 @ 11:51am

The Crackdown On Torrent Sites Has Produced Many More Moles To Whac

from the getting-creative dept

If the ongoing battle between copyright infringers and copyright holders could be described in any simple term, that term would have to be whac-a-mole. Since the early days of piracy on the internet, the copyright industries have used their legal mallets to smack down any site or service whose head managed to rise out of obscurity. Napster was pushed into irrelevance, as were other similar apps. Then websites that hosted infringing files were slammed. At present, we are in the midst of a crackdown on torrent sites, with the copyright industries blaming them for widespread infringement.

However, those who are dedicated to sharing content illicitly are indeed dedicated. And so the game will continue into avenues of piracy that are fairly creative.

As crackdown on torrent sites continues around the world, people who are pirating TV shows and movies are having to get a little more creative. Cloud storage services such as Google Drive, Dropbox, and Kim Dotcom's Mega are some of the popular ones that are being used to distribute copyrighted content, according to DMCA takedown requests reviewed by Gadgets 360.

Google Drive seems most popular among such users, with nearly five thousand DMCA takedown requests filed by Hollywood studios and other copyright holders just last month. Each DMCA requests had listed a few hundred Google Drive links that the content owners wanted pulled.

But what's notable about many of these DMCA takedown requests is that they target Google Drive links that don't actually host any content themselves, but instead have embedded YouTube videos within them. YouTube has long been accused of hosting copyright infringing content, but few people consider it a serious vector for pirating movies or television shows. That's because YouTube cracks down on piracy itself, and it is easily searchable, meaning that copyright holders can find their content and send takedown requests. Most infringing content is taken down quickly because of this, so what would be the point of these embedded videos?

It turns out that the pirates found a simple workaround - the videos are simply uploaded as unlisted, so they don't turn up in search results. The links to these videos are then shared as Google Drive links through discussion forums and other channels so it's difficult for the content owners to find the videos and get them taken down.

Popular video sites YouTube, Vimeo, and Dailymotion are also being abused by distributing and hosting illicit content, DMCA takedown requests reveal, but the volume of such requests again implies that they are not being as widely used. Some pirates, getting creative, also turned to another streaming venue which is not used as widely - porn sites. For example, last year, news outlets reported an instance where all the songs of Kanye West's The Life of Pablo album were uploaded as a video to the popular website PornHub. You can still find a number of movies on the site, and oddly enough, also things like game trailers and music videos that could safely be posted on other sites as well.

While nobody would want to cheer this sort of infringement on, there is a certain aspect of creativity to it. That creativity nicely demonstrates the axiom: the internet is designed to route around obstructions. So too, it seems, are the communities dedicated to sharing copyrighted content. It seems that this war on piracy is whac-a-mole by nature, but it's actually worse than that.

What if the moles were hydras and every time you hit one on the head, two or more heads sprouted out as a result? Because it should be noted that the above strategy using Google Drive and YouTube to distribute infringing content isn't the only creative strategy that's sprouted out of the crackdown on torrent sites.

The most unusual service that is being abused for distributing content that we came across is My Maps. It's a feature Google introduced in 2007 to enable users to create custom maps. Anyone can visit the My Maps website, and create a custom map by pointing to a location on the map, adding a title, and filling up a description box. Google doesn't verify what kind of information users are sharing in description, so you can again easily share links to unlisted YouTube streams, or Google Drive files to download. What this means is that people can then share locations on maps, which lead to the pirated movies.

While Google's services are only the most abused of many for this sort of thing, you can already hear the content industries warming up their voices to sing a tune of how Evil Google is the pirate's tool of choice for copyright infringement. It's worth noting that all of this, however, has emerged despite Google's efforts at complying with copyright laws. It's also emerged as a result of this ongoing arms race waged primarily by the content industries, who could have expended this effort in figuring out new business models on which to make money from their content. Instead, we can mark time in the modern era by what the "piracy threat vector" du jour is. It seems tomorrow it may become Google Drive. Or My Maps. More years on it will be something we haven't even thought of yet.

Them moles keep coming, after all.

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Posted on Techdirt - 7 September 2017 @ 1:33pm

Russia Piracy Blocking: Four Thousand 'Pirate' Sites Blocked... Along With Forty Thousand Sites Worth Of Collateral Damage

from the super-effective dept

We've long talked about the problems that come along with government mandating ISPs to act as copyright police by blocking so-called "pirate" websites. The issues with these attempts are many, ranging from their muted impact on piracy to concerns over just how a website is deemed to be a "pirate" website to the inevitable collateral damage sustained by non-infringing sites. With the last of those, you can pretty much set your watch to the stories of innocent sites being caught up in this sort of censorship. Still, the breadth of this particular problem likely escapes many people.

To get a handle on the sort of scope we're talking about, we can take a look at Russia. In response to international accusations of the government being lax on matters of copyright infringement, Russia enacted legislation in 2013 that tasked ISPs and hosting providers with blocking pirate websites. It's been nearly half a decade, so let's check in and see what sort of impact that legislation has had.

More than four years on, Russia is still grappling with a huge piracy problem that refuses to go away. It has been blocking thousands of sites at a steady rate, including RuTracker, the country's largest torrent platform, but still the problem persists.

Now, a new report produced by Roskomsvoboda, the Center for the Protection of Digital Rights, and the Pirate Party of Russia, reveals a system that has not only failed to reach its stated aims but is also having a negative effect on the broader Internet.

According to that study, the numbers come out to roughly 4,000 sites blocked that are the actual sort of website the Russian government meant to target and 41,000 sites that are essentially purely collateral damage. The reason for this is that the nature of the legal proceedings in these sorts of cases is such that the actual site operators basically never show up in court. Instead, the ISPs and hosting providers do, and are then ordered to block these pirate sites by IP addresses, among other methods. These IP addresses can be shared, however, meaning that any third party sharing an IP address with the target of a block order from the courts are caught up and likewise censored.

Due to the legal requirement to block sites by both IP address and other means, third-party sites with shared IP addresses get caught up as collateral damage. The report states that more than 41,000 innocent sites have been blocked as the result of supposedly targeted court orders.

But with collateral damage mounting, the main issue as far as copyright holders are concerned is whether piracy is decreasing as a result. The report draws few conclusions on that front but notes that blocks are a blunt instrument. While they may succeed in stopping some people from accessing ‘pirate’ domains, the underlying infringement carries on regardless.

“Blocks create restrictions only for Internet users who are denied access to sites, but do not lead to the removal of illegal information or prevent intellectual property violations,” the researchers add.

So, the blunt instrument of censorship has been fairly bad at stopping copyright infringement, it's stated goal, but quite good at censoring innocent sites at a factor of ten to one compared with the actual targets of the censoring. That's the kind of failure that's so bad it's impressive. One would think the Russian government would be looking to overhaul the legislation and censorship program to start driving these numbers back into the realm of reason. But this is Russia we're talking about, so instead the country is ramping up its censorship efforts, with requirements for search results to omit "pirate" sites and by criminalizing VPNs.

It's enough that you start to wonder just how many websites the average Russian citizen will be able to access at all before long.

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Posted on Techdirt - 5 September 2017 @ 3:57pm

IOC President Tosses Shade At Including eSports In Olympics Over Concerns About Violence And Doping

from the facepalm dept

You will recall that a few weeks back we discussed the Paris Olympic Committee's open attitude towards looking at eSports for inclusion in the upcoming 2024 Olympic Games. This refreshing stance from an Olympic committee was a welcome step in the eSports trend, although it came with no promises taht we would actually see eSports in Paris seven years from now. The IOC, as always, would have the final say, and we all knew the massive headwind eSports would face with the grandpappy Olympic committee: eSports aren't real sports. Hell, I'm sure many advocates for competitive gaming were already gearing up to fight that fight.

Unfortunately, it looks like the IOC is likely to turn its nose up at eSports for entirely different and far, far more stupid reasons. The first of those dumb reasons, according to IOC President Thomas Bach, will indeed have a familiar ring to gamers.

“We want to promote non-discrimination, non-violence, and peace among people,” Bach told the South China Morning Post. “This doesn’t match with video games, which are about violence, explosions and killing. And there we have to draw a clear line.”

The Kotaku piece points out that Bach himself won the gold medal in 1976 for fencing. While nobody would want to make the claim that competitive fencing is violent, are we really to believe that fencing is less a simulacrum for violence than a video game? Not to mention that this blanket statement that video games are about violence at their core is simply wrong, even on the competitive eSports level. Many games of course include violence. But some do not. Bach himself went on to half-heartedly acknowledge this with a nod towards sports simluations that could perhaps still be included, but the very focus on violence is frustratingly dumb. After all, boxing, judo, karate and wrestling have been or are featured Olympic events, and all of them are clearly more "violent" than video games. And that sets aside sports like water polo, which are known to be physically brutal.

But violent or no, eSports athletes may find themselves not included in the Olympics over an even more laughable concern: doping.

Bach also pointed out that the esports industry remains an under-regulated space compared to traditional sports: “You have to have somebody who is guaranteeing you that these athletes doing video sports games are not doped, that they are following technical rules, that they are respecting each other.”

Okay, stop it. Nobody would claim that eSports is without its drug issues, but the IOC of all organizations keeping it out of the Games over doping concerns is as farcical as it gets. The IOC would tell you, I'm sure, that it is opposite eSports in being one of if not the most regulated sporting event on the planet, and yet doping and PEDs are everywhere in the Olympics. The IOC and its event are no paragon of virtue when it comes to performance enhancing drugs. Listing that as a concern makes this whole thing seem like a joke.

So what is this pushback actually about? Likely money, as with all things the IOC. If it felt that eSports being included would be a major money-maker for the IOC, these concerns would melt away faster than a Usain Bolt dash. Once eSports reaches a certain popularity threshhold, which the trend seems to indicate is likely, they'll get their Olympic bid. It just might not be in 2024.

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Posted on Techdirt - 1 September 2017 @ 11:58am

Pakistani School Drops Lennon's 'Imagine' From Concert Amid Protest By Vocal Minority

from the outlawing-imagination dept

For those of us that advocate principles of free speech, the most hallowed battleground for that fight must necessarily be in schools. If these ideals are to win the day on the longer timeline, it will be because subsequent generations take up the banner of free speech and conversation in more numbers than do their opponents. In the West, these fights amount to issues that are indeed important, but pale in comparison to what occurs elsewhere in the world. To that end, it's as important to see how far we've come as it is to understand how far we have to go.

Take Pakistan, for instance. Most of us will know that Pakistan has not taken the same trajectory in terms of speech compared to America. Differences of this sort are to be expected, but they can reveal themselves in stark ways. For instance, a local school in Pakistan with a tradition of singing John Lennon's famous song Imagine has this year decided to remove the song from the annual concert for reasons that you've likely already guessed.

Pupils at the Karachi Grammar School (KGS), a liberally-inclined private institution with 2,400 places, were on Friday night due to sing the anthem at an in-house concert, upholding a tradition that stretches back decades.

But administrators decided it would no longer be safe after a popular conservative journalist highlighted ‘controversial lyrics’ in the song, hinting that they might fall foul of Pakistan’s strict blasphemy laws.

What happened here is actually pretty simple. Ansar Abbasi, the conservative journalist mentioned above, picked up this story as if it were new and scandalous and blasted out a call to his Twitter followers to demand Lennon's iconic song be banned from the concert. Because the song rather famously, or infamously depending on your perspective, asks listeners to imagine a world without religions over which to fight, Abbasi suggested that the song was pimping Atheism. To be clear, the song doesn't actually do that, and Lennon himself said the whole point was to imagine all the fighting that could be avoided if religions didn't compete with one another. Distinctions like that, however, aren't fertile ground for outrage-trolling.

When other conservative media outlets in Pakistan picked up the story and decided to call out the school and its administrators by name, the school was essentially left with no choice but to bow to the mobbish minority for security concerns.

The school, which is heavily-guarded, subsequently dropped the song from its concert.

Former student Daanika Kamal told the Telegraph that Mr Abbasi was ignoring the message of ‘Imagine’, which invites listeners to picture a “brotherhood of man”, and “inciting hate”.

“We were introduced to [‘Imagine’] by the school” she said, “it was always a song of peace, that’s why it resonated with us. When you live in a country like Pakistan and are constantly hearing about attacks it is really soothing to hear a song that unites us.”

It should be obvious how silly and damaging this sort of thing is. When a country's speech laws are so backwards so as to allow mainstream journalists to call for government intervention to keep school-aged children from singing one of the most benign songs in musical history, it should be clear that something has gone awry. When those same calls can get school administrators to bend the knee to the vocal minority even before the government gets involved, the problem is even worse.

I could spend calories and time trying to figure out exactly what people like Abbasi think school children should be learning in the classroom under the premise that Imagine is a danger, but fortunately he has made his views on that public so I don't have to.

Mr Abbasi yesterday tweeted that “we need to teach the Quran to check both forms of extremism - religious or liberal”.

It shouldn't take much mental effort to see just how bad a plan for curriculum that obviously is.

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Posted on Techdirt - 1 September 2017 @ 3:32am

The Epic Crime Spree Unleashed By Onity's Ambivalence To Its Easily Hacked Hotel Locks

from the true-crime-story dept

Back in 2012, we wrote about Onity, the company that makes a huge percentage of the keycard hotel door locks on the market, and how laughably easy it was to hack its locks with roughly $50 of equipment. Surprisingly, Onity responded to the media coverage and complaints from its hotel customers with offers of fixes that ranged from insufficient (a piece of plastic that covered the port used to hack the door locks) to cumbersome (replacing the circuit boards on the locks entirely) and asked many of these customers to pay for these fixes to its broken product. Many of these customers wanted to sue Onity for obvious reasons, but a judge ruled against allowing a class action suit to proceed. That was our last story on the subject.

So... what happened? Well, Onity ended up springing for the fixes for some of their larger chain hotel customers, but not all of them. For the rest, it was on each hotel to decide to pay for the fix or not. Many, many of them absolutely did not and did nothing about the Onity locks on their doors, while those that did get the fix involving the plastic port cover quickly found out that the fix wasn't much of a fix at all. To see the fallout from all of that, one need only look at Wired's longform piece on the hellacious crime spree undertaken by one troubled young man, Aaron Cashatt, who managed to steal hundreds of thousands of dollars worth of stuff from hotel rooms using the afore-mentioned $50 worth of gear.

The entire post is worth your time, with its fascinating look into Cashatt's background, the revelations of the Onity lock's failures, and where those two stories converged. One of the key points in all of this was that even before Cashatt started his crime spree, everyone, from Onity to the hotel chains to any member of the public that cared to know, was aware of how laughably insecure Onity's locks were, except that, for the most part, nobody bothered to do anything about it.

Instead of Brocious' research protecting millions of hotel rooms from larceny-minded hackers, it served up a rare, wide-open opportunity to criminals. Soon other hacker hobbyists were posting YouTube videos of themselves demonstrating the vulnerability on real hotel doors, refining Brocious' gadget to work far more reliably. One security researcher in Chicago managed to miniaturize the components of the lock-hacking device until it fit inside the body of a dry-erase marker, with its plug hidden under the marker's cap. The attack became so notorious that it even made a brief cameo in the first season of USA Network's show Mr. Robot.

But out of everyone who learned about the Onity keycard hack, only one person, perhaps, had the right mix of desperation, tech savvy, and moral flexibility to use it to its full criminal potential: Aaron Cashatt.

Cashatt saw a news segment about the Onity flaw and began to use his own hacking device to exploit it almost immediately. With equipment that cost less than a AAA video game, Cashatt began hacking into hotels, starting at a Marriott. While perfecting his hacking tool and managing to hide it in a sunglasses case that he kept slung around his neck, he worked a waiter job during the day and smoked meth and broke into hotel rooms at night. Using the tool, Cashatt would walk out of hotel rooms with everything the visitor owned and much of what was owned by the hotels as well, including not just towels and toiletries, but flat-screen televisions as well. After deciding to skip a court hearing, he took his show on the road, leaving his corner of Arizona and trekking to the Midwest, where the spree continued. Even when he was arrested on completely unrelated drug charges, police had no idea that the string of hotel room robberies in progress across the country was his doing. When he was carted back to Arizona and let out on bail, he went right back to work.

Now with no job to hold him back, Cashatt, his friends, and an on-and-off girlfriend spent the next four months hitting hotels at a frenzied pace, sometimes as many as four in a day...working his way methodically across central Arizona.

It was a month into that run that Onity began rolling out the plastic port-blocker fix to its locks. Onity had finally begun distributing this fix for free to at least some of its hotel customers. But this barely slowed Cashatt down. Instead, he used a screwdriver to open the panel of the door lock and was able to access the port once more, the plastic blocker circumvented. With enough practice, he was able to do this in under half a minute. He went right back to work, fencing stolen goods through a network of friends and a jewelry store whose owner he trusted. It was only after one of his friends got pinched that the police managed to get wind of just how big Cashatt's operation had become. He once more hit the road and began breaking into hotels in Tennessee before trekking back west to California and hitting hotels there. It was there that the feds finally caught him, after he managed to steal an estimated half-a-million dollars worth of goods.

Now in prison, Cashatt doesn't think much has changed.

"I guarantee you that if you tried this at some hotel in the Midwest, it would still work 19 out of 20 times," he says. For that, he blames Onity's negligence. "They just don't get it."

For its part, Onity remains opaque on how many fixes have been rolled out to how many hotel door locks, as well as exactly what form those fixes take, either the plastic port-blocker variety or an actual circuit board replacement. The fact that the company isn't screaming about how many circuit board replacements its doled out should tell you all you need to know about the answer to that question. The Wired author himself tested it out and managed to get his own hacking tool to unlock a hotel door on his fourth try. This isn't hard data of any kind, but with Onity itself ducking any kind of transparency, it's the best that can be done.

What should stick out most to everyone about this story is how the flaws in Onity's locks were uncovered only through the help of security researchers, oft maligned, whose work then went largely ignored. That willful ignorance allowed someone like Cashatt to go bananas on the hotel industry, all because Onity couldn't be bothered to fix its flawed product.

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Posted on Techdirt - 30 August 2017 @ 7:12pm

Sega Releases 'Sonic Mania' Without Informing PC Customers Of Denuvo Inclusion And Always Online Requirements

from the always-dumb dept

Searching for stories about Sega here at Techdirt results in a seriously mixed bag of results. While the company has managed to be on the right side of history on issues like SOPA and fan-made games, it has also managed to be strongly anti-consumer on game mods and has occasionally wreaked havoc on the YouTube community, all in the name of copyright protectionism. Despite all of this, Sega has gone to some lengths to successfully craft for itself a public image more accessible and likeable than its long-time rival Nintendo.

Stories like the following will put dents in that image, however. Sega recently ported its new title Sonic Mania to the PC and released it on the Steam platform. The port also included Denuvo DRM and an always-online requirement, except that it (oops!) forgot to tell anyone about either.

I tried loading the Windows version of Sonic Mania while my Steam account was offline. That's when Sonic Mania informed me, in no uncertain terms, that "Steam user must be logged in to play this game."

Turns out, Sega has applied the much-malignedDenuvo copy-protection system to Sonic Mania's PC version—and this Denuvo implementation won't unlock the game for players so long as Steam is operating in "offline mode." Until the game receives an update, Sonic Mania fans hoping to play the PC version in an offline capacity are out of luck. (Your backup option, should you want to do something like board a plane, is to boot the game while connected to Wi-Fi, then disconnect from the Internet and leave the game running in the background until you're ready to play. It's not necessarily an ideal workaround.)

Gamers immediately began complaining both that the DRM was keeping them from playing their legitimately purchased game and that the Steam store page for Sonic Mania was devoid of any notification of Denuvo or its online requirement in the system requirements page, or anywhere else for that matter. Somewhat oddly, a Steam account with the handle of "Sega Dev" responded to the complaints, saying the omission on the store page was a mistake. That mistake has been rectified and the store page now informs buyers of the Denuvo requirement. But that same account also informed Steam users that "Sonic Mania is intended to be played offline", and has promised to investigate the issue.

Even stranger, the PR lead for the Sonic franchise went even further and practically begged for the public to complain to the company about Denuvo and the online requirement.


I simply can't recall ever having seen anything remotely like this, with the PR wing of a company soliciting complaints to corporate in what sure seems like a way to get corporate to move off of a DRM. It seems there is some infighting at Sega over this requirement, though to what level that infighting rises is unknown to me. Any Sega employees reading this are free to contact me and relay your concerns.

Regardless, this is a terrible look for Sega among the gaming community. Including a much-maligned DRM and requiring a single-player game to be online to play it can only have one sort of impact on the company's standing in the public. While Sega has not removed Denuvo from the game entirely, it has since released a patch that allows the game to be played offline. The damage, however, has likely already been done.

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Posted on Techdirt - 30 August 2017 @ 1:51pm

Developer Puts Game On The Pirate Bay Because Steam Key Resellers Are The Bigger Evil

from the gifts-for-the-poor dept

Leaving aside the AAA publishers for a moment, the video game industry is actually starting to get really good on recognizing better ways to react to copyright infringement other than pounding their fists on their tables and knee-capping their customers with DRM. This still occurs, of course, but we've also seen stories of publishers treating pirates as potential customers with whom it's worth connecting, giving away Steam keys on torrent sites, or just playfully messing with pirates instead of screaming at them. These efforts generally are done to the tune of great PR and the humanization of a content company that can only help their businesses.

And, thankfully, it's not a trend that is slowing down. Acid Wizard Studio, publishers of the game Darkwood, made some recent news by deciding to put its own game on the Pirate Bay.

On torrent site The Pirate Bay, typically the domain of illegal rips of media, one username among dozens uploading the horror game Darkwood stands out: the game’s publisher. Today, the Poland-based Acid Wizard Studio uploaded their own game for free with “no catch, no added pirate hats for characters,” their torrent description reads.

Now, why Acid Wizard Studio did this is somewhat unique in these kinds of stories. In part, the studio says it did this because it doesn't want to keep the game from those who truly cannot afford it. It aimed this message particularly at children who game at the pleasure of their parents' credit card bills. But while we've seen that sort of thing done before, the studio also did this because it believes the Steam key reselling business is the greater evil compared with piracy.

Acid Wizard saw a comment from someone who refunded the game because they didn’t want their parents to get stressed out over the bill, Acid Wizard writes on Imgur.

“If you don’t have the money and want to play the game,” they say, “we have a safe torrent on the Pirate Bay of the latest version of Darkwood.” They explain that a flood of emails asking for free Steam keys helped bolster their decision to upload a free Darkwood torrent to The Pirate Bay, and asked that those who can afford it later buy it discounted on Steam. It’s an interesting move that spits in the face of shady key-selling services like G2A, where Acid Wizard figures a lot of the free keys they’d send out would go. “This practice makes it impossible for us to do any giveaways or send keys to people who actually don’t have the money to play Darkwood,” Acid Wizard writes. “Please, don’t buy it through any key reselling site. By doing that, you’re just feeding the cancer that is leeching off this industry.”

The replies to the studio's message were almost universally positive, with many promising to try the game out via the torrent and buy it afterwards if they liked it. How many of those people ever would have tried the game out at all, illlicitly or otherwise, is impossible to determine, but it seems obvious that the amount of additional sales revenue that will be generated because of this is not zero. In other words, the publisher gets the good PR of treating people well, gets to make a point about a key-reselling industry that is genuinely pretty scummy, and picks up some indeterminate number of sales in the process.

That's the kind of nimble response to piracy the AAA publishers should recognize as a winning strategy.

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Posted on Techdirt - 29 August 2017 @ 10:45am

Mayweather V. McGregor: Showtime Got Injunctions On Pirate Stream Sites Which Didn't Work & Neither Did Their Own Stream

from the oops dept

As you will already know, a boxing match recently took place between Floyd Mayweather Jr. and Conor McGregor. The fight itself was far better than it should have been, but you may not know it if you couldn't manage to actually see it. Much as it did in the run up to the Mayweather v. Pacquiao fight of a couple of years ago, Showtime went out and got some rather questionable injunctions against 44 sites it believed would be offering up the fight via an illegitimate stream during the live pay-per-view broadcast. That effort resulted in, ahem, only three million viewers watching the fight via illegal live streams. Thousands more downloaded video of the fight illicitly after it occurred. So, Showtime got a court to agree to questionable pre-crime activities with the result being rather mixed.

But if the steady mantra from the content industries that "every infringement is a lost sale" were true, then perhaps Showtime should be thanking its lucky stars that illegal streams were available, because its own streaming service wasn't able to handle the viewership load it did have.

Showtime was hit with a federal class-action lawsuit amid reports that it delivered shoddy or non-existent $99 streams of the Floyd Mayweather-Conor McGregor fight Saturday. This is contrary to Showtime's promise of 1080p resolution at 60 frames per second.

"Instead of being a 'witness to history' as defendant had promised, the only thing plaintiff witnessed was grainy video, error screens, buffer events, and stalls," declared the lawsuit (PDF) filed in federal court on behalf of a Portland man named Zack Bartel. The suit seeks to represent "thousands of other consumers" unable to stream the Mayweather fight in HD as Showtime advertised.

By all accounts, it was bad. Really bad. The fight was delayed for paying streamers for over half an hour as Showtime's service was unable to handle all of those customers who paid for the fight. I don't want to spend any time on this class lawsuit, because these kinds of class lawsuits are generally pretty silly and the fact that Showtime failed to deliver on its own streaming product isn't in and of itself the point. The point is that if the company really wanted to go to war with streaming sites prior to the fight, it should have made sure that money and effort wouldn't have been better spent actually catering to its paying customers.

What if the content industries were right and the injunctions had worked? What if Showtime had to accommodate three million more customers with pirate streams unavailable? How bad would the streaming experience to all of those paying customers have been then? Likely it would have merely added 3 million more individuals to the class action lawsuit.

Meanwhile, of those that did pay for the fight and had their experience range from "delayed and sub-par" to "holy shit, I can't even watch this thing", how many might give this whole pirate stream thing a whirl the next time Showtime puts on a fight? All because Showtime would rather play whac-a-mole with streaming sites than make its own product function, never mind actually competitively good.

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Posted on Techdirt - 28 August 2017 @ 6:23am

Village Roadshow Promises To Mete Out Its Brand Of Justice As Inequitably As Possible

from the tipping-scales dept

Village Roadshow, an Australian film distributor, has always been something of a strange anomaly. Like many others in the copyright industries, the organization has embraced copyright trolling as a business model, even touting the kind of trolling-automation that has since seen so much backlash over its inherent collateral damage toll. On the other hand, Village Roadshow was also one of the few film distributors I've seen actually come out and state that windowed releases are really, really stupid. On the other, other hand, the distributor subsequently went ahead with windowed releases anyway.

Ambiguity appears to be somewhat in Village Roadshow's DNA. So, perhaps it isn't entirely surprising that upon announcing plans to take Australia back to the early 2000s by suing individuals for piracy, the company also made sure to inform the public that it will do so with almost perfect inequity.

Let's start with Village Roadshow's plan, which is essentially to ape the RIAA from the days of peer to peer filesharing. It was a strategy, it should be noted, that was dropped because it wasn't particularly effective. But that isn't going to stop Village Roadshow from giving it another go.

Many thousands of people were fined and the campaign raised awareness, but it did nothing to stop millions of file-sharers who continue to this day.

That’s something that Village Roadshow co-chief Graham Burke now wants to do something about. He says his company will effectively mimic the RIAA’s campaign of 14 years ago and begin suing Internet pirates Down Under. He told AFR that his company is already setting things up, ready to begin suing later in the year.

This plan will rely on ISPs to give up customer information, which will likely lead to a fight in Australian court. While the outcome of that fight is uncertain, it can be reliably claimed that what Village Roadshow actually wants is for pirates to pay fines to not go to court. This reads like classic copyright trolling, except that village Roadshow is making a great deal of noise about being prepared for actual lawsuits, while most copyright trolls avoid the courtroom at all (literal) costs. That won't win them many fans in the public, if the American experience is anything to go on.

It's perhaps in anticipation of that, however, that Village Roadshow commits its worst sin, although I am sure it thought it was going to win points with the following.

“We will identify people who are stealing our product, we will ask them do they have ill health or dire circumstances, and if they do and undertake to stop, we’ll drop the case,” Burke says.

While being upfront about such a policy has its pros and cons, Burke is also reducing his range of targets, particularly if likes to be seen as a man of his word, whenever those words were delivered. In March 2016, when he restated his intention to begin suing pirates, he also excluded some other groups from legal action.

“We don’t want to sue 16-year-olds or mums and dads,” Burke said. “It takes 18 months to go through the courts and all that does is make lawyers rich and clog the court system. It’s not effective.”

This says everything you need to know about how closely Village Roadshow's plan intersects with actual justice. The concept of real justice rarely makes full exemptions for teenagers and parents, never mind the poor or ill. In criminal cases, sentencing guidelines may take those circumstances into consideration, but Burke is essentially saying that teenagers and the poor or ill get a free pass on copyright infringement. I am sure he thinks he's going to win points of sympathy from the public with this stance, and perhaps he will, but he certainly should not. Either this plan is a valid form of combat against infringement or it isn't, full stop. If your justice can't survive the PR surrounding having it meted out against a poor teenager, then it isn't justice at all.

It's rent-seeking from those that can afford it, based, as always, on the flimsiest of evidence and predicated on the public being scared of actual lawsuits that Village Roadshow may actually want to file. That isn't justice. It's gross.

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