Posted on Techdirt - 1 July 2016 @ 6:18pm
It's pretty common knowledge at this point that the Chinese government spends a great deal of time and effort attempting to censor the internet at its own whim. And, while the walls of censorship erected are penetrable with enough effort, it still results in much of the population being unable to search out information that might be embarrassing to the Chinese government, such as references to the Tiananmen Square incident, for instance. But while examples like that can make some measure of sense to outside observers, even as they still decry the censorship, the fact is that the Chinese government's application of this censorship has been managed so erratically and unpredictably that the result is everyone watches where they step for fear of a takedown.
Which naturally brings us to Lady Gaga, whose meeting with the Dalai Lama recently resulted in the Chinese government attempting to wipe her off of the China-facing interwebz.
Hong Kong news outlet Apple Daily reports that China’s Ministry of Propaganda and SARFT, the regulatory body that oversees media, ordered China’s broadcast and websites to stop offering Lady Gaga songs. They also ordered media outlets not to publish anything (link in Chinese) about Lady Gaga’s meeting with the Dalai Lama, other than what prominent state-media publications have written.
“[Media outlets] must resolutely struggle against Tibetan independence, and closely follow reports from CCTV, the Global Times, People’s Daily, and other reports and commentary from central media outlets,” the directive reads, according to Apple Daily.
The Tibet issue is one that China regularly regulates in terms of coverage, of course, and the Dalai Lama is the worldwide person of focus for the cause of Tibetan indpendence. Even so, reacting to a meeting with an American pop singer by attempting to scrub the internet of news of the meeting and her music seems delightfully ham-fisted, even for Chinese censorship. And, as per usual, it isn't working particularly well.
A search on QQ Music, one of China’s most popular music streaming sites, shows there’s still plenty of Lady Gaga music available.
Which makes, as usual, the attempt at censorship come off as both petty and the wild flailings of an ineffective government agency. That, I would assume, is not the perception that the Chinese government was hoping to achieve. There will come a day when this particular government finally understands that these censorship attempts don't work in any way other than to supply a great deal of egg on its collective face, but that day is apparently not today.
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Posted on Techdirt - 1 July 2016 @ 3:38pm
A brief review of the many, many posts we've done here about the DMCA and its notice and takedown platform will reveal to even the casual reader that the whole thing is rife with complications, abuse, and inconsistencies. It can be a difficult realm to navigate, but there are times when an entity's claims of ignorance just don't ring true.
Which brings us to one independent Ford dealership that decided to simply yoink an image from a relatively new video game and use it to advertise automobiles.
A Boston-area Ford dealership is dealing with some internet blowback this afternoon after folks realized that the car-seller had swiped artwork from the indie game Firewatch to promote the “Ford Freedom” sales event.
The Consumerist link then provides a side by side comparison of the image from the game and the ad that the Ford dealership put out. As you will see, there wasn't even the barest attempt made to obscure the original image in any way.
So, yeah, they pretty much took an image from the game and slapped some copy on the front and pushed it out to potential car-buyers. That's pretty much as infringe-y as copyright infringement gets. And the use of the image is even somewhat ironic, given that Firewatch is a game that tasks you with traversing the wilderness entirely on foot and this is an ad for a car dealership.
The media began contacting Ford once folks on Twitter alerted the makers of the game to what the dealership had done. Ford washed its hands of the whole thing, stating that the dealership acted as an independent entity. The dealership, when contacted, pushed the calls off onto the dealership's advertising department. The advertising department just flat hung up on some inquirers, before emailing out its, um, "explanation."
The ad exec then wrote back to say clarify that “We always use DMCA compliant sites when getting images,” referring to the Digital Millennium Copyright Act. The ad guy claimed that the Firewatch image was obtained from a DMCA-compliant digital “wallpaper” site, but he seems to be confused about complying with the DMCA actually means.
Very confused, because obtaining an image from a site that complies with the DMCA doesn't suddenly make those images royalty-free, free to use in commerce, or even non-infringing themselves. All it means is that the site would comply with the notice and takedown procedure once alerted to an infringing work on its site. If no notice happens, the takedown might not happen either, which doesn't in any way render the image non-infringing.
The fact that we don't hear of this kind of thing happening more often is likely an indication that the actual rules within the DMCA and how copyrighted images can and can't be used in commercial ad copy is within the lexicon of most companies' advertising departments. This particular Ford dealership might want to give HR a call and get the ball rolling on some staff turnover.
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Posted on Techdirt - 30 June 2016 @ 3:42pm
It's become common game by many in America and elsewhere to crap on lawyers whenever the opportunity presents itself. This is done unfairly in many cases, with a lack of understanding of what the adversarial nature of our legal system requires of legal advocates. For instance, a lawyer that strongly advocates for a client accused of something terrible isn't himself or herself terrible. That's the duty of the job.
But for one of the lawyers on the staff of Johnny Manziel, the seemingly troubled and frequent guest of the court who was once primarily known as a football player, it appears both that proper lawyer-ing is a bit more difficult than for most and that he's a bully to boot. As you may have heard, Bob Hinton, who had been tasked with representing Manziel in his domestic abuse court case, accidentally texted the Associated Press information about his attempts to settle the case in a rather unfavorable light with respect to his client.
An attorney handling Johnny Manziel's domestic violence case expressed doubts about the Heisman Trophy-winning quarterback's ability to stay clean and said he was given a receipt that shows Manziel may have spent more than $1,000 at a drug paraphernalia store just 15 hours after he was involved in a hit-and-run crash, according to a lengthy text message accidentally sent to The Associated Press. Defense attorney Bob Hinton's text indicated Manziel's legal team was seeking a plea deal with prosecutors, but suggested that could be tricky.
"Heaven help us if one of the conditions is to pee in a bottle," the attorney wrote.
This oops-text happened after the AP had apparently sent Hinton a text message requesting comment about a hit-and-run accident that Manziel was reportedly involved in (Manziel claims to be the victim of the accident). Hinton had meant to text what he sent to the AP to co-counsel. The communication also included information about a smoke-shop receipt that may have indicated that Manziel had been purchasing synthetic marijuana, a fact not useful for the defense team of a high-profile individual with well-covered run-ins involving substance abuse. To accidentally text that information to the Associated Press has to be one of the best examples of what not to do as an attorney for such an individual.
But the really face-palm-inducing move by Hinton was to then threaten to sue the AP if it did any reporting around that text message.
When asked about the text, Hinton said he had meant to send it to co-counsel Jim Darnell and was unaware the AP had received it instead. He insisted the contents were protected by attorney-client privilege and threatened to sue if certain details were published.
I guess we'll get to take the measure of that threat, as the AP most certainly did report on not only the text, but the subsequent threat as well. Such threats are unlikely to ingratiate a lawyer to the press and, while I won't say the AP reported because of the threat, it seems like the added threat has given the story some extra flavor, propelling it Streisand-style into wider coverage.
And, not surprisingly, others are now reporting that Hinton has been booted from Manziel's legal staff as a result. Not a good day for the counselor, I think. The mistake was bad enough, but the attempted cover-up, as always, ends up doing more harm.
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Posted on Techdirt - 30 June 2016 @ 3:27am
It had to happen. There was no avoiding it. It's quite common for individuals, and sometimes even businesses, to surf the wave of a popular news cycle and attempt to translate some story into a trademark to exploit. A good percentage of the time, this is done as something of a short-term squatting attempt, where some word or phrase becomes suddenly popular and someone races to trademark it in order to license or sell it to another entity. Other times, it's simply done to capitalize on the sudden popularity of a word or phrase directly.
You already know where this is going. Yes, the "Brexit" trademarks are starting to pour in, almost literally in the case of Sam Adams Boston Lager maker Boston Beer.
The Boston Beer, the maker of Samuel Adams Boston Lager, is seeking to trademark “Brexit” as a name of a hard cider. A patent attorney from Houston has also filed an application to register “Texit,” a term coined as the Texas version of Brexit. That application covers hunting apparel, T-shirts and baseball caps.
Yes, as the world reacts to Britain riding a wave of false-promises and barely-disguised tribalism towards an EU exit stage-right-into-an-economic-freefall, American companies are swiftly trying to lock up the word-mash used to describe this exodus for their own stupid business purposes. And, based on the findings of Alex Montgomery, it appears these applications were filed even as the results of the vote were in doubt.
On June 24th, as the world was contemplating the consequences of the United Kingdom's "Brexit" vote to leave the European Union, others were filing applications to register the term as a trademark. One of those entities was the Boston Beer Company (the owner of the Sam Adams trademark). Applications to register BREXIT as a trademark were also filed on June 24th by an individual in Chicago in Class 025 for clothing and by a company in Colorado inClass 005 for dietary and nutritional supplements.
For Boston Beer's proposed Brexit Hard Cider, the details for the rollout of this drink appears to elude even those within the brewery.
A Boston Beer spokeswoman couldn’t say exactly what the plans were for Brexit cider. She told Law Blog that the company has worked with cider makers from the U.K. and sources some apples from the country for its “Angry Orchard” line of hard cider.
That's quite a reach to rationalize trying to trademark a suddenly popular term coming out of an international news cycle. Let's be clear on this point: this kind of trademarking is goddamned annoying. First, it makes a mockery of what for most of us are very real and serious issues. The Brexit story is one that the entire world ought to be paying very serious attention to, because the vote was not only historic, but its consequences, whatever they are, ought to be instructive to other nations that want to use nationlism to propel this sort of agenda.
But on top of that, exactly what does any of this kind of opportunistic trademarking have to do with the purpose of trademark law? To be clear, all of these trademark applications are likely entirely legal. But that doesn't change how at odds they are with the purpose of trademark to begin with. The idea behind trademarks is that they serve as a source-identifier for particular companies. The general idea would be to come up with a term for a brand or business, trademark it, then grow it into recognition as associated with the trademark holder. These attempts reverse the order, attempting to ride a wave of an already well-known word or term and then trying to force association with brands through trademark.
And that's really lame.
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Posted on Techdirt - 24 June 2016 @ 6:30pm
Weeks back, Karl Bode wrote about the curious position Oculus Rift had taken in updating its software to include system-checking DRM. VR headset technology and game development, experiencing the first serious attempt at maturity in years, needs an open ecosystem in which to develop. What this DRM essentially did was remove the ability for games designed to run on the Rift from running on any other VR headset, with a specific targeting of community-built workarounds like Revive, which allowed HTC Vive owners to get Rift games running on that headset. Oculus, it should be noted, didn't announce the DRM aspect of the update; it just spit out the update and the public suddenly learned that programs like Revive no longer worked.
The backlash, to put it mildly, was swift and severe. Oculus having been acquired by Facebook likely didn't help what were already negative perceptions, supercharging the outcry with allegations of the kind of protectionism and the lack of care for the public that Facebook has enjoyed for roughly ever. Still, many saw the whole thing as peons screaming at a feudal lord: Oculus would simply ignore the whole thing. Just weeks ago, in fact, Oculus was working journalists at E3 in defense of the DRM.
The problem, [Oculus Head of Content Jason] Rubin said, comes with the wholesale distribution of a hack like Revive to the whole community, rather than to a few individuals. "[A personal hack] is a far cry difference from an institutional tool made and distributed to a mass number of people to [support other headsets], strip out DRM, strip out platform features and the like. For an individual to do that for themselves, that would be all right. Mass distribution is an entirely different situation."
No explanation on why the level of access to the workaround makes all the difference appears to have been offered, but it seems likely that the company didn't want to appear to be going after gamers and tinkerers, only larger development outfits. If so, the attempt didn't work, because software like Revive was in high demand. This is to be expected, as VR is just now starting to sprout from the seeds laid long ago, with impressive but limited options for both hardware and games to run on that hardware. Those limitations mean that any attempt at exclusivity being tied to hardware that is relatively expensive walls off each of the gardens and limits access and interest. For a technology still in its early stages, this would only stifle growth. Hence, the anger from the public.
Anger which appears to have worked, contrary to what some had thought. As silently as Oculus rolled out the DRM, it has now spit out an update which rolls it back. The world found out about it not from Oculus itself, which curiously didn't want to capitalize on some good press for once, but from Revive's development team.
The Oculus team has reversed course on one of its most unpopular decisions since launching the Rift VR headset in April: headset-specific DRM. After weeks of playing cat-and-mouse to block the "Revive" workaround, which translated the VR calls of Oculus games to work smoothly and seamlessly inside of the rival HTC Vive, Oculus quietly updated its hardware-specific runtime on Friday and removed all traces of that controversial DRM.
What's more, Oculus didn't mention the change in its runtime update notes, which are curiously future-dated one day forward on Saturday, June 25. The news instead broke when Revive's head developer posted a note on the project's Github download page. "I've only just tested this and I'm still in disbelief," the unnamed LibreVR developer wrote. Accordingly, the Revive team has since removed the patch's DRM-disabling feature, which had later been implemented as an extreme measure to make Oculus games play on the HTC Vive.
It appears that even when Oculus chooses to listen to its fans and potential customers, it can't be bothered to do so publicly. This strips its ability to claim credit for the move, credit which it desperately needs after several negative news cycles. Still, the company's PR ineptitude aside, it's a nice lesson in what public backlash and shaming can do to pressure a company to be a little more open.
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Posted on Techdirt - 24 June 2016 @ 3:22am
While we've talked in the past about how absurd design patents can get, it's worth pointing out that, hey, shit's not getting any less absurd, people. Design patents, as opposed to utility patents, function more like trademarks. The idea is that the "invention" in the case of design patents are supposed to be unique outputs of what might otherwise not be unique inventions that are then said to act as some sort of single-source invented thing. Honestly, the whole concept smells of a workaround on the actual purpose of patent law and it tends to function that way as well. How else do you explain the design patent granted on a toothpick with some lines carved into it, for instance? Or Apple's design patent on the animation of turning a page within an ebook? Rewarding exclusivity to these types of "inventions" that barely work up the sweat of an "inventor" should seem absurd to you, as should the frequency with which the public is left wondering where exactly the "invention" is in any of this.
Which brings us to General Mills and its recently granted design patent on tortilla bowls.
General Mills Inc. has received a patent for a bowl-shaped tortilla. It's just a single patent and probably not a big item for General Mills (NYSE: GIS), but the concept of a tortilla bowl seems so simple that it's interesting the Golden Valley-based food giant sought and received the patent.
No, not interesting, annoying. Annoying and frustratingly believable, as the USPTO appears to mostly be in the business of seeing just how far it can stretch the concept of invention by granting these sorts of design patents. And there doesn't appear to be much unique about this tortilla bowl. Here are some of the images from the patent:
Such a unique design. Or not.
Tortilla bowls have been around for roughly ever, as best as I can tell, appearing in stores and restaurants all over the place. I even vaguely remember a walking-talking basketball getting some attention a while back for tweeting out an image of him enjoying a tortilla bowl on Cinco de Mayo.
And, yet, the USPTO saw fit to grant General Mills this design patent for the glorious invention of a thing that's been around forever. That the company named its "invention" an "ornamental design for a shaped tortilla" only drives home the absurdity that has become the realm of design patents, where invention can mean anything and the USPTO applies zero critical thinking to the application process.
Asked to comment on this patent, a company spokesman offered up this content-less reply.
"We file patents all the time," General Mills spokesman Mike Siemienas said.
And why not, given that the approval process for those patents appears to be some kind of assembly line culminating with a mechanical tipping bird that has an "APPROVED!" stamp super-glued to its beak? Still, I somehow doubt that the founders had any intention of rewarding patents for such non-inventions as a tortilla bowl.
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Posted on Techdirt - 23 June 2016 @ 11:23pm
Nearly half a decade ago, we wondered publicly what a company like Twitter, a self-proclaimed advocate of free and open speech, would do if confronted by a government that is anything but. In that post, Mike discussed how Twitter had been used to rant against the government in Saudi Arabia, and wondered what would happen if Saudi Arabia decided to make such speech illegal. But what if it's not direct government action but that of other users that threatens such speech? While we have seen some governments routinely punish internet speech they don't like, we're now seeing signs of non-government individuals getting into the racket as well, as a way to silence the kind of barely-progressive speech a company like Twitter would likely say it wants to protect.
Late Sunday night, Twitter user @old_gaes tweeted a screenshot of one of @Pharaohoe’s tweets from February, which had replaced the word “domain” in a verse from the Quran with a slang word for vagina.
“This is the end of another atheist and we should continue exposing every Arab atheist child to their parents who do not know of their atheism,” @old_gaes wrote in Arabic above the tweet.
Several friends of @Pharaohoe on Twitter told The Daily Beast that she is 16 years old and lives in Kuwait.
@old_gaes has apparently been making a habit of this sort of thing, seeking out citizens of countries that would severely punish speech deemed to be blasphemous or in support of the LGBT community and reporting any speech like that, or encouraging followers to report it, to the authorities. That appears to be the only kind of tweeting the account does, in fact. Where this kind of harassment has very real consequences in nations like the United States, those consequences are not nearly as severe as might occur in other countries. And, lest you think that this kind of doxing nonsense would go unseen by the Islamic governments in question:
Dubai’s verified police account tweeted back to @old_gaes on Monday morning, asking him to “kindly send the details” about potential blasphemy along to a specific email address.
On Monday, @Pharaohoe tweeted “they fucking found me,” “im gonna puke,” then “i’m deactivating guys.” She then deleted her account.
In addition, there are many followers of this Twitter account and others like it, creating a network of like-minded individuals who could potentially out those using Twitter as a platform for speech. The targets mostly appear to be women in Islamic nations who make statements of atheism or of a faith other than strict Islam, or who make any noises in support of LGBT rights. And, according to those witnessing this doxing, Twitter isn't doing much about it.
“Twitter is absolutely useless. They don’t take this sort of thing seriously,” said the woman who asked to remain anonymous. “I don’t know what the solution is.”
“He’s so dangerous,” said Afra. “I don’t know how his account is still up.”
And, yet, what is Twitter to do? Certainly continued harassment can and should be addressed, but the fact is that Twitter operates internationally, including in countries where the law is not as friendly to secular values as it is in America. If the law in Dubai, for instance, is that blasphemous speech on Twitter should be reported and punished, then Twitter would be walking an interesting line in banning or blocking accounts for doing so. It could try to pull access from those countries, of course, but that would be technically challenging, wouldn't be in its business interests, and would only result in denying those people any voice at all. That doesn't seem like a likely solution. Attempts to get clarity from Twitter itself on how it would want to handle situations like this haven't resulted in much information.
When The Daily Beast reached out to Twitter to ask how accounts like @Old_gaes were allowed to remain active despite consistent reports of harassment, a spokesperson said that “we do not comment on individual accounts, for privacy and security reasons.”
When asked to “better outline how Twitter assesses threats to personal safety” after a violation of the rules that could leave its users in danger, the company did not respond to repeated requests at press time.
And so we have a speech tool co-opted by those wishing to oppress speech, with the company behind the tool seemingly paralyzed as to what to do about it. The good news is that, whatever steps backwards like these may occur, the flourishing of options for free and open speech typically also results in often unexpected change, however slow that change might occur.
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Posted on Techdirt - 22 June 2016 @ 11:23pm
We've seen plenty of strange, even laughable, trademark spats around here. What can get lost in the kind of ownership culture we've collectively created is that trademark is chiefly built around the concept of avoiding customer confusion. With that noble goal in mind, businesses are allowed to reserve the right to use specific marks that act as identifiers for their brands. One of the tests that's commonly referenced to determine whether there is the potential for customer confusion is: would a moron in a hurry be confused by a given use between two competing companies?
Except nobody ever bothers to tell us to where that moron is hurrying. Given the trademark battle between two portable toilet companies, however, the answer may be: to the bathroom.
Two portable toilet vendors are engaged in a trademark dispute over using the state's outline and Lone Star to adorn their outdoor loos. Texas Outhouse of Houston, which trademarked its version of Texas-and-star earlier this year, has sued rival Texas Waste, claiming the Alvin company's use of similar images has diluted Texas Outhouse's "iconic" brand, making it difficult for users to distinguish portable toilets and suggesting that the al fresco powder rooms are the same.
This certainly conjures a strange image in the mind, one in which a person squeezing back nature rushes to a portable toilet and takes the time to concern him or herself as to which company's receptacle they are about defile. This is likely not the argument that Texas Outhouse will make in court, however. After all, the customer in this case is not the user of the mobile bathroom, but is rather whoever is contracting their use, such as event planners, municipalities or outdoor concert venues. They're the customer, not the folks with the full bladders.
It's worth noting that logos involving Texas' state outline and the star have in the past found to be not deserving of trademark protection.
Texas Outhouse v. Texas Waste is not the first tussle over the use of the Lone Star in company logos, said Jane Langdell Robinson, who handles copyright issues at Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing in Houston. In 2010, in a case involving two self-storage companies, the U.S. Court of Appeals ruled that the iconic image of Texas is not inherently distinctive and can't be legally protected as a trademark. She said she expects the courts would have a similar view of using an outline of state.
Which only makes sense. Regional companies doing business can choose to adopt the state outline and state symbols as their logos, but it would be strange to suggest that other regional companies would be prohibited from that same use. You're all Texans, after all, and the state image and star are wonderful identifiers of the region a company calls home, but are less clear in acting as identifiers for the company itself. So the question in this suit will likely come down to the actual customers' chances of being confused between the two companies and whether the logo in question should be protected by trademark at all, in the first place, with the latter potentially cancelling out the need to answer the former.
Jacqueline Lipton, a law professor and codirector of the Institute for Intellectual Property and Information Law at the University of Houston Law Center said the case will come down to two issues: Whether there a protected trademark and whether customers are likely to be confused by the similarities of the logos. As she delved into the doctrines of intellectual property law, she stopped herself for a moment: "I can't believe I'm talking about outhouses."
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Posted on Techdirt - 21 June 2016 @ 11:23pm
As you may or may not be aware, Sky TV is a European cable television network owned by Rupert Murdoch. Sky TV is also a company that has trademarked the word "sky" and enjoys bludgeoning anyone who uses the word "sky" in business into the ground. This has resulted in exceptionally silly disputes, such as Sky TV suing Skype, despite there being not a lick of competition between a messaging/calling system and television.
This past week, gaming enthusiasts learned that the much anticipated open universe space exploration game No Man's Sky had been battling with Sky TV over the inclusion of the word "sky" in its title. This case of trademark bullying can act as a wonderful barometer, because if you don't think this is ridiculous, then you are ridiculous.
Did you think that the highly anticipated, procedurally generated space exploration game No Man's Sky was in any way related to British telecommunications and broadcasting giant Sky? Of course you didn't. But it apparently took the legal system three years to come to the same conclusion.
That's according to Sean Murray, managing director of No Man's Sky maker Hello Games. Over the weekend, Murray tweeted that the company had settled a legal dispute with Sky over the game's name after "3 years of secret stupid legal nonsense." In a follow-up tweet, he added that "this is the same folks who made Microsoft change Skydrive to Onedrive... so it was pretty serious."
It is indeed serious for a number of reasons. First, that the legal system is such that a large megalith can carry on a 3 year trademark campaign against a much smaller company over the use of a common word in a game title that in no way is connected to the former's business interests serves as a wonderful example of how perverted trademark law has become from its original purpose. Second, that the USPTO could approve a trademark on this kind of common word without doing so narrowly enough that any claim from Sky TV like this would be immediately laughed out of court and result in the censure of the company's lawyers should give you some idea of the headwinds the original purpose of trademark faces at the level of the government. Keep in mind that this dispute was settled, rather than being concluded. And that's after 3 years. Over the word "sky." Come on now.
And, finally, lest you think this whole thing amounts to an annoyance, there are very real business consequences for Hello Games.
No Man's Sky was recently delayed from a planned June 21 launch to August 9, leaving many wondering what was troubling the game's development at this late stage. A legal battle that would have required a last-minute name change would certainly fit the bill for such a delay, though we can't know for sure if this was the cause at this point.
Yes, we don't know for sure, but the timing makes sense and the clearly annoyed developer tweeting this out in this way would indicate that this was an issue affecting the launch in some way. So Hello Games has its game delayed over a stupid lawsuit over a common word that somehow took three years to settle. Trademark bullying works.
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Posted on Techdirt - 17 June 2016 @ 6:15pm
While we've covered plenty of supposed copyright stories centered around some folks' misunderstanding of the idea/expression dichotomy, it isn't every day you come across one of these cases that involves Christian on Christian litigation violence. But I guess if copyright is everywhere, virtually perpetual and attached to a creation simply by being created, it was only a matter a time before it butted up against godly works.
Kelly Kullberg and Michael Landon Jr. are screenwriters who wrote an as-yet un-filmed screenplay called Rise. It was the story about a student and professor finding themselves debating the existence of god, with the student eventually winning out. And, then there's a film that was made, God's Not Dead, which is a creatively-named film about a student and professor who find themselves debating the existance of god, with the student eventually winning out. It somehow grossed about $100 million worldwide, despite starring Kevin Sorbo, best known for playing Hercules in a television show of the same name. There are obvious plot similarities between the two.
But one must keep in mind the idea/expression dichotomy. General plots are not afforded copyright. Only the specific expression of a work, and in some cases characters, are afforded copyright. According to the complaint (which was filed by Irell & Manella -- the law firm last seen pretending a monkey gets copyright), the elements over which Kullberg and Landon Jr. are suing are examples of the former:
[A] young college student who has to debate a popular and charming atheist professor over the course of three debates, who struggles in the first debate, but succeeds in the next two after support and encouragement from characters including an unmarried local pastor, a rural married couple, the atheist professor’s wife who is also the professor’s former student (a lapsed Christian doing her own soul-searching) and an international student ally, and manages to persuade many others, including the professor, that God does exist.
Those are almost perfect examples of generic plots and not copyrightable expression. The complaint goes on to note other similarities between the two works, such as the use of certain phrases, such as "God is good", and the citation in the debate scenes of similar Christian apologetic works and authors. For the phrases: come on, we're talking generic religious phrasing here. For the citations: the number of Christian apologetics out there isn't vast, so you'd expect this kind of overlap in dealing with the same subject matter. Suing over these kinds of generic elements almost never works.
In addition to the generic nature of what the complaint focuses on, there's also the matter of what it chose to ignore: all of the other plot elements that are in no way similar to Rise.
The complaint is largely confined to the main story of God's Not Dead and does not make reference to subplots featuring minor characters who either are ostracized for converting to Christianity or are dealt cruel twists of fate for being atheists. (In one such subplot, a liberal reporter who writes nasty posts about Duck Dynasty is stricken with cancer — though she converts to Christianity and is cured in the sequel.)
The film was followed by a sequel, God's Not Dead 2, released in April of this year. Although a few minor characters were retained from the first film, including Reverend Dave played by White, it focused on a new, unrelated story of a high school teacher being prosecuted by the ACLU for quoting scripture in a history class. Nevertheless, plaintiffs allege that the sequel is “at a minimum, a derivative work.” It is implied by a post-credits cliffhanger in GNG2 that Reverend Dave’s saga will continue in a third film. The scene shows him being arrested for refusing to comply with a subpoena to produce copies of his sermons.
If you're thinking to yourself that these sound like awful, awful films, the critics largely agree with you. But they are certainly not infringing upon Rise. Everything listed in the complaint is generic idea and not expression.
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Posted on Techdirt - 17 June 2016 @ 3:43pm
From the perspective of an American, it's perhaps too easy to assume that everyone around the world has the same amount of fatigue over surveillance and the terrorism scare that I do. After all, even a good percentage of Americans still consider the threat of international terrorism to be a major cause for concern within their own lives, regardless of how much or little it actually impacts them directly. But Europe is dealing with its own cases of terrorism and the associated concerns that arise from it. Still, it's disappointing to watch one European nation, Poland, expand surveillance powers and internet censorship in very big ways.
From Freedom House, an independent organization pushing for freedom and human rights around the world, we learn that Poland has essentially passed new laws in which the only direction pursued is in more surveillance and less civil liberty.
In response to the Polish government’s new counter-terrorism and surveillance laws, which allow authorities to block websites and telecommunications, limit the freedom of assembly, and allow secret surveillance of virtually the whole population, Freedom House issued the following statement:
“Granting open-ended powers to intelligence agencies to counter terrorism at the cost of every citizen’s privacy and freedom marks a clear abuse of power by the government,” said Daniel Calingaert, executive vice president. “The government seems determined to allow police and intelligence agencies to monitor all personal data and all communications without needing to establish the existence of any actual threat, a disturbing step toward removing checks and balances on government action."
Far from blowing the situation out of proportion, the law approved by the lower house of parliament in Poland is equal parts dangerously vague in some areas, granting government power, while unfortunately specific in others, where rights of the public are to be reduced. For instance, the law reportedly deals with granting law enforcement and government the ability to shut down communications, websites, and to monitor foreign citizens, with the only real specificity being that they can do all that for three months without even a court order. The powers during those three months are virtually unlimited, because they aren't reigned in by the language in the bill. It's almost as though they were writing the law to ensure it will be abused.
Meanwhile, the law also expands what is considered "terrorism", because when has that ever gone wrong? Included is also an extension of how long a suspect can be held without being charged to fourteen days.
And what is the public getting out of this? I suppose the answer is the warm and fuzzy feeling of safety through the watchful eyes of an overbearing government? Whatever the Polish public is getting, it certainly isn't freedom.
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Posted on Techdirt - 17 June 2016 @ 12:47pm
We talk a lot around here about stories with people trying to determine what "real journalism" is. Those stories tend to veer towards the incredibly dumb, with most centering on a misunderstanding of what journalism actually means in the digital age. For a long time, journalism was an alchemy performed by a select few wizards, horded by a few outlets, which vetted and locked up their product. Today, of course, the barriers of entry to doing any kind of journalism are lower and the ability to distribute that kind of work is virtually unlimited. And, despite what you might hear from some grumpy folks who prefer the good ol' days, it turns out that smaller websites and independent citizens can journalism really well!
But not everybody has gotten that memo, apparently. Take Eric Papenfuse, Mayor of Harrisburg, Pennsylvania. He has recently, and apparently surprisingly, decided to ban anyone working for website PennLive to the weekly meetings and briefings the rest of the press is allowed to attend.
We allowed Papenfuse to speak on his behalf. He said the ban was put in place because he does not believe PennLive is a credible news outlet, therefore it should not be held to the same standard.
“I think PennLive is the equivalent to Gawker (a self-proclaimed gossip blog), not the equivalent of the Washington Post,” Papenfuse said, “and it needs to be understood and treated as such.”
Now, I'm quite familiar with Gawker, having both read the site and our own coverage of their escapades recently. So when I went to PennLive.com to check the site out, I was expecting snark and gossip alongside some substance, which is exactly how I would describe Gawker. Instead I was greeted by headlines over a missing 11 year old girl from the area, Harrisburg crime reporting, and stories about a motorcycle accident. I can't say I'm sure that there is zero gossip on the site, but I can attest that I have yet to find even one sex-tape involving a professional wrestler. Honestly, the whole site seems like a basic local news site.
Observers appear to be equally confused.
Dave LaTorre, founder of LaTorre Communications, could not believe that a government official of a capital city could make such a public relations blunder.
“I call this breaking into jail,” LaTorre said. “You break into jail and you create a problem that wasn’t there.”
LaTorre said in full disclosure, he voted and donated to Papenfuse’s campaign. He was disappointed by Papenfuse’s decision Monday to limit access to PennLive reporters, no matter the reason.
“To pick a fight right now clearly will drown out a lot of the positive vibe that we felt here in the city,” he said.
Pressed for details, the good Mayor actually suggested that PennLive traffics in "hate speech." When bewildered questioners asked what in the world he was talking about, he said:
When asked if even hate speech should be considered hate speech, the mayor said not when it concerns an “anonymous post.” Papenfuse added that PennLive must better police its public comment sections to be considered a legitimate news source before he will release the ban.
If this ends up being all about the site allowing its community to comment, and comment anonymously, then this is completely insane. First, as LaTorre pointed out, the Mayor ran on a campaign of transparency. To begin banning sites that allow the public to comment from press briefings is the opposite of transparency. It breeds a culture within the press where, absent the rest of the press ganging up in retaliation, foists a permission-like atmosphere, where positive coverage is rewarded with more access. There's always some of that kind of thing that goes on, sure, but making it policy through banning unfavored publications? Come on.
Oh, and of course the Mayor's attempt to drive traffic away from PennLive didn't exactly go as planned.
LaTorre said that notion backfired as PennLive’s story on Papenfuse cutting off reporters has generated nearly 500 comments and thousands of page views.
“I’m looking at other comments. Twenty-six on one story,” LaTorre said. “Fifteen, 3, 5; this is Penn State story-type numbers.”
As a communications specialist, LaTorre advises Papenfuse to rescind his ban and apologize for the sake of the Office of Mayor and Harrisburg as a whole.
“Think about this decision. Reverse it,” he said, “and get back to governing.”
Papenfuse reportedly refused this advice. Banning the press for allowing comments and proclaiming a site as not being journalism? Oh, yeah, this should go well.
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Posted on Techdirt - 17 June 2016 @ 8:33am
Another day, another example of Facebook's attempt at applying automated morality going poorly. For a site designed for little else beyond expressive speech, I suppose some erroneous applications of any kind of puritanism would go awry. Perhaps then you might have forgiven Facebook's mistaking a children's illustration for man-horse-fucking, or the algorithm's inability to recognize satire.
But you would think that, in the wake of the tragic shooting that occurred at a nightclub in Orlando, one member of the LGBT community's perfectly cogent and innocuous rant wouldn't be gobbled up the by censor algorithm as being offensive. Here is the author's tweet complaining about its removal (twice), including a screenshot of the text, so that you can get an idea of what was taken down.
After removing the post a second time, Facebook apparently banned the author from doing anything else on the site for three days. That notice pretty clearly implies that the author had shared some kind of child pornography. Which wasn't true. The entirety of the post was text, imploring society to start to treat the LGBT community with a greater deal of respect. And, whatever your thoughts on the text of that post might be, certainly it is not something that should have been taken down as offensive, nevermind as any kind of pornography.
Look, I poke fun at Facebook over its morality attempts because it's funny, but I don't expect the site to be perfect. Still, when the censors are gobbling up legitimate viewpoints basically devoid of anything offensive as offensive, then perhaps we're better off with no filters at all.
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Posted on Techdirt - 16 June 2016 @ 3:52pm
A while back, we wrote about the hilariously bullying cease and desist notice Vice Media, a billion dollar media company, sent to ViceVersa, an un-signed punk band. At issue, according to Vice Media, was the band's name and trademark application, both of which the media company declared would damage its own brand and confuse customers. Neither of those claims was remotely true, but they bullied in the way that only bullies can.
Which brings us to the present, where we learn the good news that Vice Media has settled with the band over the dispute.
Today, both parties reached a settlement over the trademark dispute. Reached for comment, a Vice spokesperson said: "We're glad this worked out for both parties, and we wish the band the best of luck."
This is where most of the folks reading this news will breathe a sigh of relief that sanity has been reached and everyone has walked away from this whole thing amicably and whole. Which is partly true. But not entirely. Check out the band's statement through its lawyer.
In a statement, ViceVersa's lawyer wrote: "After a few weeks of negotiations, the two parties have come to an amicable agreement. Changes have been made to the band's trademark details as registered with the USPTO, thus narrowing the scope of their services. ViceVersa will continue using their name and logo as they please and Vice Media will go about their $2.5 billion business."
If you can't hear the disdain dripping in that statement, your brain needs a tune up. And it's not difficult to understand why that disdain would be there. After all, even if we assume that there was no monetary requirement for this settlement, even if we recognize that the band will be able to continue using its name, and even if the only minor changes were needed to the band's trademark paperwork to keep it as narrow as possible...what did Vice Media give up as part of this "settlement?"
Nothing. The claim that the band's name was infringing in any way was not a valid claim, so the band's continued use of it is not a concession by Vice Media. Nothing in the band's original trademark application would have covered anything that would have confused any customers anywhere that an indie punk band was somehow also part of Vice Media. In other words: since Vice Media's claims were total bullshit, giving up on any part of those claims isn't a concession, whereas the band's concessions were minor but very real.
Bullying works, in other words. By virtue of its size, Vice Media was able to work its will on a small indie punk band just because it could. Don't be fooled by the settlement into thinking it was just.
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Posted on Techdirt - 15 June 2016 @ 3:53pm
Whenver we discuss a particularly egregious case of trademark abuse, usually centered around the trademarking of some insanely common word or phrase, there's always at least one instance of "that joke" in the comments. You know the joke I'm talking about: well, I'll just trademark X and sue everyone, where X=super-common word or phrase. For example: "I'll just trademark "trademark" and sue anyone who uses a trademark!", or, "I'll just trademark "the" and sue everyone who uses it!" These jokes play on the common problem of generic terms being granted trademarks, but of course they are examples so ridiculous that it couldn't happen for those specific words and terms. Still, to our lovely commenters, we say, "Thank you."
Or not, because it appears Citigroup has a trademark on "THANKYOU" and is currently using it to sue AT&T for using "Thanks".
Who knew? Banking giant Citigroup has trademarked "THANKYOU" and is now suing technology giant AT&T for how it says thanks to its own loyal customers. This is "unlawful conduct" amounting to wanton trademark infringement, Citigroup claims in its federal lawsuit.
You can close your calendar app on your phone down, it isnt April 1st, and this ain't no joke. The filing by Citigroup is very real and hilarious in its content and claims. First, the filing establishes just how connected "THANKYOU" is to Citigroup.
For many years, Citigroup has used trademarks consisting of and/or containing the term THANKYOU, including THANKYOU, CITI THANKYOU, CITIBUSINESS THANKYOU. THANKYOU FROM CITI, and THANKYOU YOUR WAY, in connection with a variety of customer loyalty, reward, incentive, and redemption programs (collectively, the “THANKYOU Marks”). As a result of Citigroup’s longstanding, extensive, and widespread use, marketing, and promotion of its THANKYOU Marks and services, Citigroup’s THANKYOU Marks are widely recognized by the general consuming public as a designation of source for Citigroup’s high quality financial services and customer loyalty, reward, incentive, and redemption programs.
In other words, everyone knows that when a business says "thank you" it's talking about Citigroup loyalty rewards. Duh. As per usual, the first folks to blame over this idiocy are at the USPTO, which granted a trademark on the term "THANKYOU". Why would you do that, USPTO? Have you lost complete control over your mental faculties? There was literally zero chance that this exact kind of dispute wouldn't be raised.
Which doesn't mean we can't point out that Citigroup is being an asshat here. You're probably thinking that there's no way Citigroup is actually suing AT&T for being gracious in its branding, but you'd be exactly wrong. Again, from the filing:
Despite actual knowledge of Citigroup’s substantial use of and exclusive rights in the THANKYOU Marks, Citigroup’s use of the marks in connection with AT&T co-branded credit cards, and Citigroup’s concerns regarding AT&T’s proposed trademarks, AT&T launched a customer loyalty program under the trademarks “thanks” and “AT&T thanks” on or about June 2, 2016. 4. AT&T’s use of the “thanks” and “AT&T thanks” trademarks is likely to cause consumer confusion and constitutes trademark infringement, false designation of origin, and unfair competition in violation of Citigroup’s rights. 5. Citigroup therefore seeks to enjoin AT&T’s infringing conduct and to recover damages based on the injury AT&T’s conduct has caused to Citigroup as well as AT&T’s unjust enrichment.
What. The. Hell. The notion that the use of the term "AT&T Thanks" will cause confusion for the customer is so blatantly insane that it's hard to know where to begin. I mean, it's got "AT&T" right there in the words, Citigroup. As for trademarking "THANKYOU" and suing over the use of the word "Thanks"? Hell no. There's no way that should have ever been allowed and I'd be shocked if AT&T doesn't immediately petition to have the trademarked expunged. And I'd be shocked if that petition wasn't approved with haste.
But then again, it got approved in the first place. Than-, er, great job, USPTO.
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Posted on Techdirt - 14 June 2016 @ 11:25pm
There are a surprising number of really dumb trademark disputes involving professional sports, what with athletes jumping at the chance to trademark their nicknames and phrases, and that really dumb 12th Man thing. But even this cynical writer was taken aback at the news that Dr. Pepper had stepped in to block the Denver Broncos from trademarking the term "Orange Crush", the nickname for the team's defensive squad spanning nearly half a century.
An online record shows that the Broncos filed paperwork to trademark the phrase "Orange Crush" in September 2015 through the NFL's chief litigation officer, Anastasia Danias. Last week, lawyers for the beverage makers filed an opposition to the attempt.
If neither the Broncos nor the NFL abandon their filing, the case will be heard before judges on the Trademark Trial and Appeal Board, which will make a call as to whether the team should be allowed to register the mark.
This again leads me to wonder whether all the words we've expended here at Techdirt discussing the particulars of trademark law have been for naught. One of the basic concepts of trademark law is that marks are typically applied narrowly, usually by industry. So, for instance, if Dr. Pepper were to notice another company using the term "Orange Crush" to sell beverages, it would have absolutely every right to stop that. But all the categories for which the Broncos propose to use the term revolve around its use at sporting events and merchandise related to those sporting events. The Broncos are not, by all accounts, planning to make soda. The Denver defense has been using that nickname, however, going back to the 1970s. Given that the two industries are fairly distinct, the court should have an easy time determining whether there will be any customer confusion to consider.
We here at Techdirt have a suggestion. While the typical test for whether confusion will occur is the infamous "moron in a hurry" test, which asks if idiots on the go would be confused by the use of a trademark in commerce, the inclusion of an NFL team in this dispute opens the door to a slightly altered version of this test. We suggest that the court gather up current and ex-NFL players who have been thoroughly concussed at least twice, present them a can of Orange Crush soda along side the entirety of the Denver Broncos defensive squad, tell them to run the 100 yard dash, do a touchdown dance, and then ask them if they are confused. Because even they won't have a hard time telling the difference between soda and a 3-4 defense.
I'll also note for the record that Dr. Pepper's Orange Crush product has managed to survive Orange Crush hot sauce (Trademark 86317242) as well as Orange Crush tobacco (Trademark 77680931), both of which are arguably in more similar industries than an NFL team -- and both of which were allowed to register their trademarks. Regardless, I would expect Dr. Pepper's opposition to fizz out, as it were.
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Posted on Techdirt - 9 June 2016 @ 2:09pm
Nearly two years ago, we wrote about a bonkers lawsuit against the makers of the film American Hustle, brought by a journalist who used to make remarks about what microwaves do to the food we eat. The lawsuit was essentially over Jennifer Lawrence's character, who had been built up in the film as a complete know-nothing whack-job, misinterpreting a historical article by Paul Brodeur in the film. This kind of thing is not remotely actionable, and such portrayals are not only protected against the libel and defamation claims Brodeur made by that pesky First Amendment thing we have, but in the context of the film there was simply zero chance of Brodeur suffering any harm from an insane character's misunderstanding of his article's position. I took the time to write about it because the idea of someone suing over this is hilarious, but the court forced to listen to this insanity couldn't take the same snarky position I did.
So instead, when a California appeals court tossed the lawsuit entirely, it had to keep a straight face to explain its reasoning.
On Monday, California appeals court justice Elizabeth Grimes came to the conclusion that Brodeur's defamation complaint is unlikely to be successful and must be stricken as an impingement of producers' First Amendment rights.
Judge Grimes' opinion patiently lays out its reasoning, citing that Brodeurs' views on whether nutrition is removed by microwaving food was not actually all that clear at the time the film was produced, that this question was indeed a matter of public interest during the time of the film's setting, oh, and also the whole film is a farce and the character is crazy-pants, so why are you bringing this before the court to begin with?
"American Hustle is, after all, a farce. The stage was set at the beginning of the film. (‘Some of this actually happened,’ is the line that appears on screen to start things off, and it sets the tone perfectly.”) The character who utters the allegedly defamatory statement is portrayed throughout the movie as 'slightly unhinged' and 'a font of misinformation,' and Irving and Rosalyn both refer to the microwave oven as the 'science oven.' We doubt any audience member would perceive any of Rosalyn’s dialogue as assertions of objective fact."
Except maybe Paul Brodeur? Regardless, even in this unholy era we live in, in which anyone can sue anyone for anything, with a particularly lenient nod towards libel and publicity laws, this entire lawsuit was every bit as farcical as the film it had sued over. Free speech does matter, after all, and it may matter most in protecting art.
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Posted on Techdirt - 8 June 2016 @ 3:47pm
You may recall that a few months back we wrote about LARPing.org being sued by a company called Global Archery for trademark and patent infringement. At issue was LARPing.org, which is a hobby site for live action roleplayers, selling foam-tipped arrows acquired through a German manufacturer. Global Archery claims that those arrows infringed on a patent it owns and that LARPing.org's use of Google Ad-Words infringed on its trademarks. While both of those charges seemed destined for loserdom, as the German company would be the patent infringers and the Google Ad-Words thing almost never works, the fact that Global Archery was relatively big and LARPing.org is tiny meant that perhaps that would be enough to tip the scales. With that in mind, Newegg's Lee Cheng jumped into the fray, helping to back LARPing.org's legal efforts in defending itself.
Today we're left to wonder exactly how necessary that even was, given that the court has tossed Global Archery's suit on grounds that it has no jurisdiction.
US District Judge Joseph Van Bokkelen didn't rule on that request, or make any ruling on the case's merits. Two weeks ago, Van Bokkelen issued a 7-page opinion finding that Gwyther's ties to the state of Indiana were so minimal that his court didn't have jurisdiction over the case.
We need to take a step back for a moment. Almost immediately after Cheng jumped into all of this, Global Archery dropped the patent portion of its suit. It claims that it was then that the prior art for the arrows LARPing.org was reselling was presented to them, except that Gwyther had presented it long before. Instead, this was almost certainly a patent troll realizing its victim had a larger backing and retreating. That left the Google Ad-Words trademark portion of the suit.
For that portion, Gwyther informed the court that he runs LARPing.org out of his home in Seattle, that he had never been to Indiana (where the suit was filed), and that his sales in Indiana amounted to something like $9,000. Global Archery attempted to argue that Gwyther had not questioned the court's jurisdiction properly, but Judge Van Bokkelen wasn't buying it.
The Court concludes Defendant did not waive or forfeit his personal jurisdiction defense. As for the merits of this defense, Plaintiff bears the burden of establishing that the Court has personal jurisdiction over Defendant. Advanced Tactical Ordnance Sys.’s, LLC v. Real Action Paintball, Inc., 751 F.3d 796, 799 (7th Cir. 2014). In its personal jurisdiction briefs, Plaintiff has not presented sufficient evidence to counter Defendant’s claims, and Plaintiff’s argument regarding personal jurisdiction is limited to a footnote and the last half of the last paragraph of the last brief. In any event, Plaintiff concedes that the Court lacks personal jurisdiction over Defendant, absent waiver.
And, thus, the suit is now tossed. Gwyther has said he hopes that this will be the end of it and that Global Archery will now leave his small hobby site alone. That certainly is what it should do, rather than giving another court another opportunity to smack it around again.
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Posted on Techdirt - 8 June 2016 @ 12:46pm
I'll admit that very few things in this existence we all share give me as much pleasure at poking at the prudish censorship employed by Facebook. The overly broad puritanical guidelines, theoretically designed to save our sensitive eyes from anything as horrible as a breast or a penis, often instead results in the censorship of parody, renowned artwork, and bronze statues. That sincere but misguided attempt to keep things PG on its site is inherently funny, but nearly as inherently funny as is the fact that the following image was (rather innocently) included in one of a collection of children's books in France, entitled Images of Ponies and Horses.
Right about now you're thinking that you just witnessed a French how-to manual on having a horse be all that it can be inside of you. But it isn't! Honest! What this actually is is an attempt by the illustrator to show how similar the bone structure of human beings and horses are by aligning their respective physiology in this way. A rep from the publisher told BuzzFeed:
"Obviously, we never wanted to shock our readers with that drawing," a Fleurus spokesperson told BuzzFeed. "We publish educational books and make realistic or explanatory illustrations. In that case, our goal was to make the child visually comprehend that the bone structure of the horse and the human being are similar," they said. "Putting them in the same position makes the likening more understandable and concrete."
So, we have an unfortunately designed illustration that was supposed to be educational now going viral entirely because of the context our own dirty minds adds to the image. BuzzFeed wrote a post on the image, only to find that -- you guessed it -- Facebook had begun flagging the article as it was being shared on the site.
Well, things got even weirder with this horse thing. Facebook seems to be flagging this article — the one you're reading right now — as pornography. And then, after Facebook removes this article from your feed, it makes you go through your photos and verify that none of them are pornographic. In fact, Facebook's moderators seem to find this horse picture so inappropriate, a member of BuzzFeed's social media team received a 24-hour ban from posting on BuzzFeed's Facebook page.
And this is why Facebook should get out of the morality business to every last degree possible. An article about a hilarious, but innocent, educational illustration is being flagged, users are being hassled about their other photos on the site, and some folks are even getting banned. Because? Well, because it appears that Facebook moderators have the same perverse baseline psyche as the rest of us, resulting in an image of a man and a horse being compared physiologically becoming suspected horse-man-porn. And the article pointing out what it actually is is the one that got flagged. That's as much of a failure of this sort of thing as we could hope for.
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Posted on Techdirt - 7 June 2016 @ 11:39am
Show of hands: who remembers Axl Rose? Last we here at Techdirt checked in on him, Rose was busy suing video games and hassling music bloggers over album leaks. The younger among you may chiefly be familiar with his Axl-ness via a somewhat popular string of internet memes centered on some rather unflattering pictures of the musician taken from a concert in 2010.
There are, like, tons of these. And, as you can surely understand, Rose isn't pleased that these memes are going around. Hell, we all have photos taken of us that we probably don't find flattering, and Father Time ends up foisting pounds and wrinkles on all of us that we'd rather not have. What most of us don't do, however, is cook up a copyright claim on a photograph we didn't take and try to get Google to remove every use of the picture from the internet. Rose has done that. And you'll never guess who he employed to help him do so!
“Copyright image of Axl Rose. Please be advised that no permission has been granted to publish the copyright image so we cannot direct you to an authorized example of it,” the notices sent by Web Sheriff on behalf of the singer read.
Hi there, Web Sheriff! In between money-laundering, abusing human rights, and generally breaking roughly all the laws over here at Techdirt, we had just enough time to notice you have a strange view on how copyright law works! This comes as only a mild shock to us, given how confused you folks appear to be on all the other laws you routinely talk about, but let's give this a go, shall we?
The DMCA notices all revolve around photos taken in 2010 at a concert. Those photos were taken by Boris Minkevich and published by the Winnipeg Free Press.
TorrentFreak tracked down the photographer who captured this moment to see if he was aware of these takedown efforts. We eventually found Boris Minkevich at the Winnipeg Free Press where his fine work is published in all its glory. During our initial discussions a few things became clear. Firstly, Minkevich definitely took the photo. Second, Minkevich had no idea that Rose was trying to “cleanse the web” of his photo. Perhaps the first reaction here is that Rose has no right to take down Minkevich’s photo. Since Minkevich was the one who took it, he must own the copyright, right? Web Sheriff doesn’t seem to think so.
“We can gladly confirm that all official / accredited photographers at [Axl Rose] shows sign-off on ‘Photography Permission’ contracts / ‘Photographic Release’ agreements which A. specify and limit the manner in which the photos can be exploited and B. transfer copyright ownership in such photos to AR’s relevant service company,” the company told TF in a statement.
Now, TorrentFreak reached out to Minkevich, who had no idea this takedown blitz was underway. He confirmed that some concerts do indeed make photographers sign these types of agreements, but couldn't recall if this concert included one or not. Web Sheriff, who certainly should be able to produce the agreement, having taken the lead on the copyright claims, isn't doing so. When asked, Web Sheriff's response was instead to insist that even if the photographer had not signed an agreement -- leading me to believe he probably didn't --, that Rose would still be able to claim ownership over the photo.
“[If a photographer] was there and taking shots without permission or authority, then other considerations / factors would come-into-play as to what such individuals can and cannot do in terms of attempting to commercially exploit the resultant images of someone else’s show,” TF was informed.
I would politely ask Web Sheriff what the sweet child of mine it is talking about here. Unless the photographer transferred copyright of the photo over to Axl Rose, the photographer retains copyright ownership over it. One would think that if any transfer had actually taken place, Web Sheriff would simply produce it, but it hasn't. If no transfer ever occurred, Web Sheriff is simply wrong in claiming copyright over the image. Indeed, Minkevich even mentioned to TorrentFreak that the photos are infringing, but that they are infringing on his and/or the Winnipeg Free Press' copyrights. And even that may not be true, given the room that Fair Use carves for using copyright images.
And the best part of this is that Axl Rose employed Web Sheriff to do all of this to keep the unflattering images out of the public sphere. How is that working out for him?
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