Posted on Techdirt - 27 March 2017 @ 5:09pm
When you write enough about trademark disputes, a recurring thing that happens is you keep thinking you've seen it all, but then something insane happens. And truly, after years of writing here at Techdirt, I've come across some mind-bending trademark disputes. But I can't think of a single one that matches the Broadway version of A Bronx Tale changing its set design to appease a cafe owner who insists he is a monarch of Italian pastries.
Little Italy pastry shop owner John "Baby John" Delutro of Caffé Palermo asked Broadway's "A Bronx Tale" to remove a sign on its set that dubs another pastry joint "The Cannoli King," infringing on his trademark.
The show — a coming-of-age story about an Italian kid growing up in the Bronx during the socially segregated 1960s — is currently crediting Arthur Ave. pastry shop Gino's with the coveted cream-filled title on one of its storefront signs in the set.
The lawyer for "A Bronx Tale" refused to comment, but producers for the show said they plan to re-paint the sign.
Can you smell that? It's the scent of crazy wafting into your nostrils, because nothing about this makes any sense. First, the real-world trademark ownership of a phrase like "The Cannoli King" has zero purchase on the fictional realm of the play. A play which, by the way, is set in the 1960s, and merely included a streetside set design with a restaurant with the trademarked phrase painted on it. There's no use in commerce to talk about, nor is there any customer confusion at hand. In fact, the only reason the play points to Gino's in the Bronx at all is because the owner of that pastry shop does indeed use that moniker and it's in the Bronx, whereas Delutro's business is in Manhattan. Delutro is also going after Gino's for use of the phrase, which, you know, fine, but there is no reason to have ever pushed the Broadway play to change its set design.
Again, it's a fictional world, rendering any customer confusion null and void, thus invalidating any trademark dispute reared by the trademark owner. Just to put a bow on this, Delutro opened his business in the 70s, the decade after the setting for the play. I understand that the producers of the play likely just wanted this all to go away, but they could just as easily have laughed the threat off entirely, because it's without merit.
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Posted on Techdirt - 27 March 2017 @ 1:22pm
The very idea of major movie studios simultaneously complaining about movie piracy during the initial release of a film and instituting long release windows so that films are only in the theater for legitimate viewing has never made a bit of sense. As study after study has shown, one great way to reduce piracy for a film is to make it available for home viewing as early as possible. The reason for this should be obvious: in this case, piracy of a film is a sort of market study, one which informs the studios that a part of the public really wants to watch the movie at home as opposed to in the theater. Trying to force that part of the market into the theater by delaying home rentals or purchases no longer works, because piracy is an option. Stamping out piracy has never worked, but making the film product available the way the customer wants would, at least to decent percentages.
And it seems this decades long lesson may finally be finding purchase by its students in the film studios, as several major studios are reportedly considering slashing release windows by a third.
According to a Variety report, six of the seven biggest Hollywood studios are considering plans to allow new movies to be delivered via VOD into the living room between 30 and 45 days after launch for around $30. Fox and Warner are said to favor this structure but other plans are also floating around. Universal are reported to be pushing for a VOD release less than three weeks after launch, with Warner Bros. suggesting a shorter 17-day delay but with a larger $50 rental price.
Of course, any move to bring content to the home more quickly could have a profound effect on the many theater chains around the United States and present a serious stumbling block in negotiations. However, a proposal from Warner would see exhibitors receiving a cut of VOD revenues, if they agree to a narrowing of the theatrical release window.
Getting the theaters on board will indeed face headwinds and it's important to note that these plans are reportedly very early on in the negotiating process. Still, this only makes sense. The job of moviemakers is to give the public movies the way they want them. The job of theaters is to create an experience that makes people want to go to the theater. It can't only be the movie itself. The movie is the studio's job. It has to be the theater attracting viewers. If it isn't, that's on the theater companies, not the studios.
Still, it's frustrating that even these baby steps are facing so much pushback, because what the studios should actually do is much more severe than a 33% cut in the windows. There's a joke in atheist circles that goes like this: first there was polytheism, then there was monotheism, and they're getting closer to the right number all the time. This joke ports nicely to the case of release windows, where the best number available is zero windows at all. With that kind of innovation being too much to hope for from entrenched industries, let's at least hope that some of the more forward-thinking studios can convince the one studio that you already know is against this whole idea.
While the rest of the major studios are keen to move forward, Disney is reported to be against the proposal. For a company that came up with the artificial restrictions embodied in the Disney Vault, for example, that probably won’t come as too much of a surprise.
In which case I would kindly ask Disney to stop bitching about piracy. The other studios are at least trying something new instead of pushing the same doomsday talking points.
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Posted on Techdirt - 24 March 2017 @ 4:23pm
When it comes to trademark law, it's worth repeating that its primary function is to prevent customer confusion and to act as a benefit for consumer trust. This mission has become skewed in many ways in many countries, but one of the lessons learned via the Washington Redskins fiasco is that even well-meaning attempts to have government play obscenity cop will result in confusing inconsistency at best and language-policing at worst. When government begins attempting to apply morality to trademark law in that way, it skews the purpose of trademark entirely.
To see that on display elsewhere, we need only look to Hungary, where the government is considering stripping the trademark protection for some of the branding for Heineken beer because it resembles the ever-scary demon that is communism.
The rightist government of Prime Minister Viktor Orbán, which faces an election in April 2018, says it is a “moral obligation” to ban the commercial use of symbols such as the swastika, arrow cross, hammer and sickle, and the red star. Heineken has had a star logo on its beer for most of the years since it was first brewed in the second half of the 19th century, changing to a red one in the 1930s. The star is thought to represent a brewers symbol or the various stages of the brewing process. But the red star was also a major symbol of Soviet communism and used to appear on the crest of communist-era Hungary.
Which, frankly, is entirely besides the point. It should be immediately clear how silly this sort of thing is. Stripping trademark rights for symbols tangentially related to causes a government doesn't like is bad enough, but outright banning their use in commerce is obviously a statist act by government. It does nothing to benefit the consuming public, one which will already be quite familiar with Heineken and its branding, and instead is a move designed to play on the strain of nationalism currently weaving its way through much of the West. But it accomplishes nothing concrete. Heineken isn't communism, no matter how many red stars it puts on its labels.
But dumb ideas like this necessarily come with even more extreme consequences.
Under the new law, businesses using these symbols could be fined up to 2 billion forints (€6.48 million) and jail sentence.
The danger in allowing the government to play language police in this way should be clear. Fortunately for us, this particular case in Hungary eschews the slippery slope entirely and instead simply jumps off of the corruption cliff.
Last week Deputy Prime Minister Zsolt Semjén, who jointly submitted the bill with Orbán’s chief of staff Janos Lazar, was quoted as saying that the red star in Heineken’s logo was “obvious political content”. At the same time, Semjén did not deny that the ban was linked to Heineken’s legal battle with a small, partly locally-owned beer maker in Romania’s Transylvania — home to hundreds of thousands of ethnic Hungarians — over the use of a popular brand name there.
That's where this always will eventually lead, with government taking this sort of power and abusing it to favor one company over another. Hungary simply did us the favor of putting that on immediate display. If you're going to go full corruption, after all, why bother hiding it?
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Posted on Techdirt - 24 March 2017 @ 3:03am
It was just last week that we discussed the pleasant news that Australia's Prime Minister was backing the idea of reforming the country's safe harbor laws, which are far out of line with much of the world as the result of poor wording. The whole thing can be basically summarized thusly: in Australia, safe harbor protections only apply to commercial ISPs, as opposed to service providers like websites or institutions that offer internet access, because someone decided to use the term "carriage service providers" in the law as opposed to simply "service providers." Essentially everyone agrees this was done in error as opposed to intentionally, yet it's been decades and nobody has bothered fixing the law.
Until some members of the government revived an attempt to do so and got the Prime Minister's support. Doing so would have put Australian law on equal footing with the EU and American safe harbor provisions, meaning that service providers generally couldn't be scapegoated for the actions of a third party. You know, holding the actual people culpable of a crime accountable instead of the service provider.
Well, that sane approach was no match for lobbying dollars, it seems, as the Australian government is yanking the safe harbor reform section out of its copyright bill entirely.
The Australian government has dropped plans to extend safe harbours from a new piece of legislation that will amend the country’s copyright laws. The Australian government had planned to bring the country’s safe harbour rules more in line with those in the US and Europe. However, the local media and entertainment industries hit out at that proposal, pointing out that the wider safe harbour had proven controversial in America and the European Union, and that moves were afoot in the latter to limit safe harbour protection for user-upload platforms.
With all that in mind, lobbyists for the content owners argued, a rigorous review should be undertaken before any changes to Australian safe harbour rules are considered by lawmakers. Yet the safe harbour reform hadn’t been subject to a proper consultation like the other proposals in the Copyright Amendment Bill.
Because it's simple morality: you don't blame someone who didn't commit an illegal action. On top of that, safe harbor provisions in America have only been held as controversial by lawsuit-happy lawyers and entertainment companies that see a potential profit center in service providers. After all, suing individuals is both difficult and a PR nightmare. Suing faceless websites or schools? Not so much.
Now the lobbyist-puppets in the government are pitching the removal as a way to have "evidence-based hearings" on the safe harbor proposals, except it should go without saying that evidence isn't often the basis of anything that comes out of entertainment industry lobbyists to begin with. Between inflated piracy statistics, inflated impact of copyright on inflated industries, and inflated claims about dollars lost, who but someone with their hand out even looks to the entertainment industry for any kind of valid analysis on any of this?
Besides: the whole safe harbor question has arisen from a miswording in the law. It seems that low of a hurdle to reform ought not need public hearings to leap over it.
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Posted on Techdirt - 23 March 2017 @ 9:24am
There has been an effort underway these past few years to make tax season less stressful, less complicated, and less expensive for a large swath of Americans. These efforts have produced plans to make tax season "return free" for many, with pre-populated tax forms prepared by the government that can either be signed if accurate, or ignored if not with a separate filing then being produced by the person in question. That is, since the IRS already should have most of the details on how much you earned from the companies that paid you, it can send you a pre-filled out tax return document, rather than forcing everyone to redo the same work with the same documents hoping that you don't make some mistake that will make the IRS man mad. Again, for those who want to go a different way, they can. But for those who find the IRS's pre-filled documents to be okay, it will make tax filing significantly less of an issue. If you live outside the US, this may sound strange to you, because much of the rest of the world alread does it this way. In a recent episode of Planet Money, the analogy is made that the way we do taxes in the US would be like if credit card companies sent you a "bill" that was a blank sheet of paper, expecting you to fill out all your charges over the past month, and if you got anything wrong, you'd be punished. On taxes, most of the rest of the world the taxes are more like your credit card bill. In the US, it's more like a blank sheet of paper. And, as in years past, some are finally trying to fix things in the US.
This plan has unfortunately run into the extreme distrust of all things government currently weaving its way through America and the gobs and gobs of money from Intuit and H&R Block that is making corporate use of that fear. The lobbying efforts of the tax prep industry has been a multi-year campaign (we've been writing about it since at least 2010) in which money is given to politicians essentially to have them work directly against the interest of their constituents on the subject of paying taxes into the government. It's absolutely bonkers (and partially helped along by anti-tax groups saying that anything that makes paying taxes easier should be stopped because taxes are bad).
But since bonkers is quickly becoming SOP in our government, these lobbying efforts have only ramped up recently, with an increase in dollars spent likely correcting for how simple technology is making tax preparation for most Americans.
Intuit spent more than $2 million lobbying last year, much of it spent on legislation that would permanently bar the government from offering taxpayers prefilled returns. H&R Block spent $3 million, also directing some of their efforts towards the bill. Among the 60 co-sponsors of the bipartisan bill: then congressman and now Health and Human Services Secretary Tom Price.
The bill, called the Free File Act of 2016, looks on the surface to be consumer-friendly. It makes permanent a public-private partnership in which 13 private tax preparation companies — called the “Free File Alliance” —have offered free online tax filings to lower- and middle-income families. The Free File Alliance include both Intuit and H&R Block. But the legislation would also permanently bar the IRS from offering its own free alternative.
There's something especially cynical about a law that is dressed up as a benefit to consumers by creating corporate partnerships making free tax filings available to the constituency, but which likewise prohibit the government from making the collection of its own tax dues more efficient at the same time. This is essentially a jobs program for the tax prep industry, one which that industry has taken to lying to the public through sock puppets in lieu of showing any kind of gratitude. That the industry now has cabinet-level representatives in its bullpen likely means things aren't going to get better for millions of American any time soon.
The reason the industry wants its free filing options codified into law in this way is so that it can upsell the public into paid tax services that it would otherwise not buy and likely doesn't actually need.
In an emailed statement the Free File Alliance’s executive director, Tim Hugo, said that the alliance does not automatically push paid products to those that use the Free File program but the taxpayer does “have the option of ‘opting in’ to receive additional information and offers from the tax preparation company they have selected.”
He said that the lack of awareness of the program is “unfortunate,” and placed blame on the IRS. While the tax agency previously had a large budget to advertise the Free File program, “today that budget is $0, making it difficult to reach the general public,” he said.
While it is indeed a crying shame that the IRS budget to pimp private businesses to the public has been reduced in this manner, it's arguable more of a shame that lobbying money has kept tax season more complicated and costly than necessary. That the industry is spending money to keep a voluntary option for the public beyond reach in favor of upselling that same public is all the more so.
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Posted on Techdirt - 22 March 2017 @ 10:47pm
People tend to have a hard time discussing the two mathematical concepts of zero and infinity. It's not hard to understand why this is, of course, with reality being a material thing and both the lack of and the infinite amount of something being somewhat foreign. And this manifests itself in all sorts of disciplines, from cosmology to spirituality to physics. And, of course, economics, particularly in the digital age where many of the axioms surrounding physicality no longer apply to digitized goods. Zero and infinity play heavy roles here, both in the discussion of free content (zero) and the concept of digital and freely copyable goods as a resource (infinity). The economic nature of these concepts have long vexed established industries, even as some of us have pointed out how efficient and useful infinite digital goods can be if properly applied.
Industry rebuttals to the economics of all of this have mostly amounted to facile derision in the form of slandering younger generations who either "just want free stuff" or "want stuff they cannot afford." Neither makes much sense, with both claims easily disproven given statistics demonstrating how much more is spent by "pirates" than those who don't pirate content. The truth is that, while the average citizen likely can't speak eloquently about the economic laws at work for digital goods, they certainly can understand them intuitively. And this can be shown with piracy statistics for eBooks, which a recent study shows that eBook pirates tend to be both older and relatively affluent.
A new study, commissioned by anti-piracy company Digimarc and conducted by Nielsen, aims to shine light on eBook piracy. It was presented yesterday at The London Book Fair and aims to better understand how eBook piracy affects revenue and how publishers can prevent it.
In previous studies, it has been younger downloaders that have grabbed much of the attention, and this one is no different. Digimarc reveals that 41% of all adult pirates are aged between 18 and 29 but perhaps surprisingly, 47% fall into the 30 to 44-year-old bracket. At this point, things tail off very quickly, as the remaining ~13% are aged 45 or up. There are also some surprises when it comes to pirates’ income. Cost is often cited as a factor when justifying downloading for free, and this study has similar findings. In this case, however, richer persons are generally more likely they are to download.
With nearly half of eBook pirates falling into their thirties or forties, and the study later showing that two-thirds of eBook pirates have household incomes of at least $30k per year, and almost a third having incomes in six figures, this simply isn't a situation that can be explained away by pointing at young poor people. So, why do older, more affluent people pirate eBooks?
I would argue it's instinctual. Most of these people may not even be able to explain the term "marginal cost", but by instinct they feel that something that costs nothing to reproduce ought not to require payment. Their brains do this calculation behind the scenes, not thinking about the sunk costs of initial production, nor the sweat-equity spent by the content creator. Marginal cost is the term used by economists to explain pricing laws that emerged organically through human instinct.
This isn't to say that unauthorized downloading is somehow acceptable when eBook publishers wish against it. But it certainly does suggest that any eBook publisher, or publisher of other digital content, has a very high hill which it must roll its old business model wagon up to make it work. Human intuition is one hell of a thing to overcome. So much so, in fact, that it's likely the better strategy is to figure out how to make that intuition and infinite digital goods a boon rather than the enemy.
Now, it's worth noting that the price of eBooks was still a factor for those responding in the study, but not nearly the factor that convenience played.
Given the majority of pirates’ ability to pay, it comes as no surprise that convenience is the number one driver for people obtaining content from torrent sites. Cost still takes the number two position but a not inconsiderable four out of ten still believe that online retailers are lacking when it comes to content availability.
In other words, a huge amount of eBook piracy could likely be done away with immediately, if the content cost closer to what the buyer instinctually believes it ought to be and the content was at least as readily available for purchase as it is through pirated means. That really can't be that hard for eBook publishers to understand.
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Posted on Techdirt - 20 March 2017 @ 5:34pm
For far too many years, the video game industry struggled to assert its place as a true artform, one deserving of the kind of respect granted to movies, music, television, and literature. This has been a source of frustration to those of us who can recognize the powerful storytelling device that video games represent, as well as the way modern games contribute to art and social commentary. But by its nature as a relatively new medium, games have also struggled to preserve the industry's history in the way more widely and permanently disseminated artforms have accomplished. And that's where the gaming industry has taken a turn against its own artistic interests, often demonizing methods for preserving gaming history over intellectual property concerns. Emulators are the chief method at hand, where games that are ancient by gaming standards can be digitized and preserved for posterity, save for the threat of legal action over copyright infringement and the industry's attempts to stave off these useful tools.
Like so many issues in the intellectual property world, it's not hard to understand the gaming industry's consternation. There's no doubt that many people use emulators simply to play games from old consoles and cabinets rather than pay for physical copies. Still, there's also no doubt that these same emulators work to preserve the artistic output in the gaming realm. This was most recently evidenced in two games that might never have seen the light of day again, save for emulators.
The first is the discovery and release of Millennium Racer: Y2K Fighters, a previously completely unknown 2001 Dreamcast port of a 1999 PC racing game. The title was recently discovered intact on a Dreamcast development kit, altered a bit to get it into a playable state, and then released as both an emulatable ROM and a burnable disc image that will work in actual Dreamcast hardware...The second emulation-fueled release making the rounds recently is Primal Rage 2, the unreleased sequel to the popular prehistoric-themed, stop-motion arcade fighting game of the mid '90s. Only two prototype cabinets for the cancelled sequel are known to exist, and one of them has been playable at Illinois' sprawling Galloping Ghost arcade complex since 2014.
The moment we agree that games like this are a form of art, we must also agree on the impetus to preserve that art. And once that's done, we can only conclude that these efforts to digitize the history of gaming in this manner have to be more important than any legal hurdles that exist in the form of copyright infringement or DMCA prohibitions on tinkering with them. The stated purpose of copyright seems to make this quite clear. What could be more important to promoting the arts than preserving art that could otherwise be at risk of total loss?
Emulators and those that use and support them play a key role in this, one that goes beyond merely copying the game digitally to be played.
While both of these games were technically accessible on their original hardware when they were discovered, it's only the ability to copy and emulate the software on other hardware (often with crucial software tweaks) that has made sure they'll be preserved and playable going forward. That kind of preservation doesn't just happen, either; remember that an estimated three-quarters of all silent films ever made have been lost to history. Thanks to emulation and a committed community of video game preservationists, that situation seems less likely to happen as the video game medium grows out of its youth.
The future will judge the history of gaming by the actions of the present. If games are art, and they are, then efforts to preserve this art must be cheered on, not demonized.
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Posted on Techdirt - 17 March 2017 @ 11:51am
The history of copyright law in Australia is somewhat tortured, with the government there far too often bending the knee to entertainment industries both local and abroad. Still, while much of this history is fraught with protectionism reared intentionally, one of the more curious aspects of Australian copyright law appears to have originated as something of an accident. That aspect is that the kind of safe harbor protections that exist in America are rather limited in Australia. Specifically limited to commercial ISPs, as opposed to websites or institutions that provide internet access generally speaking. We'll get a bit more into how this came to be in a moment. We'll start instead with news that recently offered amendments to copyright law in the country that would shore up safe harbor protections more generally have received the support of Australian Prime Minister Malcom Turnbull.
To solve this problem and put Australia on a similar footing to technology companies operating in the United States, proposed amendments to the Copyright Act will see all of the above receiving enhanced safe harbor protections while bringing the country into compliance with AUSFTA.
But for now, momentum appears to be shifting in favor of the technology platforms. A report in The Australian (paywall) indicates that Prime Minister Malcolm Turnbull has given the safe harbor amendments his support. It won’t be all plain sailing from here, however.
And that rocky road to harmonizing Australian copyright law with the EU and America is being laid by the usual entertainment industry suspects, whose objections are familiar tropes. Music and entertainment groups are complaining that offering safe harbor protections to such unworthy entities as schools and libraries, along with websites like Google and Facebook, amounts to codifying piracy. That's silly for all the reasons you should already know, but which can be best stated as it being quite dumb, and immoral, to saddle a third party with the guilt of a pirate just because it's an easier and more lucrative target. Because that's all this opposition amounts to: the desire to sue a school if a student infringes copyright. Or Google. Or a museum that provides internet access. This is what the entertainment industry wants to go to bat over.
But this gets really dumb when you consider that the lack of safe harbor protections in question was the result essentially of a poor choice of words over a decade ago.
The problem in Australian arose in the implementation of AUSFTA when the term “carriage service provider” (a technical terms for telecommunications companies and ISPs) was used rather than the wider “service provider” definition in the treaty.
“This places Australia at a competitive disadvantage” says Trish Hepworth. “Australian providers of common activities - transmitting data, caching, hosting and referring users to an online location – lack the protections and certainties enjoyed by their overseas competitors. It places schools, universities and libraries in a risky position as they go about their everyday business. ”
Reformers have been trying for ten years to correct this error, but they have been stymied at every turn by entrenched industry lobbyists. But now, with the Prime Minister throwing his weight behind expanded protections, there's a road map for a change in the law. The Australian government will be holding Senate hearings to debate the amendments, and you can be sure that the entertainment industry will be well represented within them, but a PM endorsement is a big deal. Hopefully our Aussie friends will get this right.
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Posted on Techdirt - 17 March 2017 @ 8:39am
While America is often portrayed as a hive of liberal debauchery, with a media environment heavy on skin and short on substance, unmentioned is a prudish strain that runs just as deep and as afoul of the mainstream. This hidden brand of puritanism rears its head in many ways, one of which is the unfortunate call to have technology companies block access to perfectly legal content in the name of protecting the gentle minds of the citizenry. Utah has attempted this in the form of calls to have phones come stock with filters to block pornography, full stop. And, while Utah is by no means alone in America in this endeavor, this sort of unconstitutional grab at the minds of the people is most often attempted in the more conservative, and religious, states. This, of course, despite all of the collateral damage to educational and otherwise useful material that comes along with this sort of thing.
Yet the march against skin marches on. In Georgia, lawmakers have introduced a bill that would mandate filters on mobile devices that allow internet access.
State representative Paulette Rakestraw has filed House Bill 509 which would require retailers to put a “digital blocking capability” on some devices to make “obscene material” inaccessible. Retailers, in this code section, would mean anyone who SELLS or LEASES a device that allows content to be accessed on the Internet. The “blocking capability” is required to make porn, child porn, revenge porn, websites about prostitution, and websites about sex trafficking all inaccessible. Retailers would be required to have a telephone line where consumers could call to report complaints and it prohibits retailers from giving consumers intel on how to deactivate the blocking program themselves.
There's a lot to say about why this sort of thing is dumb, so let's just rapid fire them off. First, the inclusion of porn generally, as opposed to the requirement to block the more illicit content discussed above, renders this unconstitutional, as I mentioned above. That pesky First Amendment tends to stand in the way of government attempts to prohibit otherwise perfectly legal content and speech, of which pornography is generally included. The rather cynical way this general block on pornography is wrapped in the cloak of attempts to block the familiar enemies, like child porn and trafficking sites, adds to how slimy this all is. And this final sentence of the paragraph is where I would typically mention how easily circumvented these types of filters tend to be, except one of the proposed law's other provisions appears to try to tackle that in a way that requires further discussion.
Here is the real humdinger: If you are 18 years of age or older, request in writing that you would like to deactivate the program, acknowledge in writing that you understand the dangers (yes, that is really the word they use) of deactivating the program, and pay a $20 fee, you can have the program removed from your device.
You read that correctly. If, as a reasonable, responsible, American adult, you wish to look at obscene material in the privacy of your own home, you have to tell the grandmother at the Wal-Mart check out line that you would like her to delete the program so you can enjoy the device to the fullest extent.
This puts the government in Georgia in the uncomfortable position of not only attempting to enact an unconstitutional law, but it also requires them to be grifters off of those that would enjoy the same material it seeks to block. Making $20 from adults who want to circumvent the filter required by the law means the state of Georgia stands to profit financially from its citizens' masturbation habits. And, while that's plainly just gross, it's the attempt to keep the public from knowing how to circumvent the filter themselves that makes this all look like a self-pleasure-tax than anything resembling an attempt to block illicit material. After all, how needed is a filter to block obscene material if the government is willing to allow it not to be blocked for the cost of a pizza?
Where the censorship of legitimate and legal speech is pretty plainly unconstitutional, specifically taxing a form of speech is painfully so.
Porn is free speech. This is a tax on free speech. A tax on people who wish to exercise and enjoy free speech. Here’s another thing: By taxing porn, the government is condoning the industry, “allowing” it to exist, if you will. If the risks are SO high for sex trafficking and child pornography, then all porn should be illegal.
The fact that there is no advocacy for eradication of porn just reiterates the point: This isn’t about protecting anyone or helping anyone. It’s about taxing a vulnerable industry that is considered immoral. There is less resistance. After all, who is going to speak out in favor of porn?
Well, I will, for starters. And I will do so unashamedly. Pornography itself has all kinds of useful and healthy applications, all of which have been documented scientifically. This isn't to say there are no downsides, or potential downsides, but there is a healthy application for pornography and the activities that tend to go with it. On top of that, giving government the power to block that which is deemed to be "obscene" or "pornographic" is rife with problems that far outweigh any potential benefits in censoring it. The public is not served living at the pleasure of a government that can decide what is good for it. And taxing it, not out of existence, but into legitimacy, is as crass and cynical a thing a local government can do.
Which is likely all besides the point. This, again, is unconstitutional, which should be the end of the discussion.
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Posted on Techdirt - 16 March 2017 @ 2:39pm
In our recent conversation about Ed Sheeran's rise to fame, we chiefly focused on his claim that music piracy helped him be discovered by the public and his generally lax views on filesharing of his music. While that modern view on how music is consumed is refreshing, we focused less on another chief part of the equation: Ed Sheeran is really good to his fans. Between engaging with them directly via social media, having a generally congenial attitude towards them, and producing music his fans love, he's built up quite a connection with his listeners.
But he appears to want to go above and beyond simply connecting with his fans, as well. He's even willing to go to bat for them with his label, Atlantic/Warner. He demonstrated this when a musician in the UK had a short video of herself covering a Sheeran song not only taken down from her Facebook account over a copyright claim, but had her account briefly suspended.
With two crowd-sourced albums under her belt, UK-based full-time busker Charlotte Campbell is regularly in touch with the public through performances on the London Underground. She also uses Facebook to keep up with fans, but a few days ago her entire experience came to an abrupt halt after she was banned from the platform. Charlotte’s crime was to post a 15-second snippet of her cover of Ed Sheeran’s song Castle On The Hill, together with a link to the full track on her YouTube channel.
“I love Ed Sheeran’s music and always cover his songs for my busking repertoire,” Charlotte informs TorrentFreak. “I find them easy to learn because I play them on repeat at home so I know all the lyrics by heart.”
Atlantic/Warner flagged the video for copyright infringement, leading to it being taken down and Campbell's account suspended for three days. She was additionally warned that if she did it again, she could be perma-banned. This all came without prior warning or communication, for reasons that she would discover once Ed Sheeran himself got wind of all of this and got involved.
After Charlotte was banned from Facebook, some of her fans took to Ed Sheeran fansites to complain that after paying tribute to the star, Charlotte’s reward was to lose her voice online. Amazingly, word reached Sheeran himself, who dropped in on Charlotte’s Facebook page to give his support.
“Just seen your video, [the ban] definitely has nothing to do with me. I bloody love seeing people cover my songs. One of the best things I get out of this job is seeing other people find enjoyment too,” Sheeran wrote. “I asked what’s gone on and apparently it’s a bot that Warner have that works on some weird algorithm (I have no idea what that means) but it’s just bad luck that it was your video,” he explained.
Sheeran went on to say that he was going to have a word with the label to get everything sorted out. This sort of thing works on so many levels. First, Sheeran is doing all of this at least in part at the behest of his dedicated fans, who discussed this on a fanboard. That's the kind of direct connection and interaction that can only serve to ingratiate Sheeran to the very people that love his music enough to support him. On top of that, being willing to go to bat with his own label in defense of a fellow musician that is covering his music is perfect in convincing the public that Sheeran is far more interested in the wider music ecosystem than he is in either being a copyright bully or milking every last dollar for his work.
The reaction from his fans and Campbell herself shows how well this works.
“I’m not sure I’ve really processed it, to be honest, I still feel like I’m dreaming!” she tells TF. “I felt so relieved that it wasn’t Ed Sheeran who had personally rejected my cover! And it really restored my faith in humanity and in Ed himself.”
And now a fellow musician that could have been miffed at the actions of his label is instead a firm ally for Sheeran, while the fans that complained about all of this have all the more reason to be supportive of his work. It's hard to imagine how a musician could connect with his fans better than this.
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Posted on Techdirt - 16 March 2017 @ 9:34am
The Mormon Church has been somewhat flip-floppy when it comes to criticism against it. On the one hand, the notoriously tight-knit Church has been admirably tolerant of many attempts to parody it, including public commentary and a certain Broadway show of world renown. On the other hand, it seems the Church tends to draw a line in the sand when it comes to disseminating official church documents, even when this is done by journalists and organizations dedicated to commentary and news. In the past, the Mormon Church has attempted to utilize copyright law to have those documents removed from such sites as Wikimedia and Wikileaks, which of course resulted in the wider viewership of those same documents as news of the threats wove through the media. The Streisand Effect, it seems, offers no quarter of religious institutions.
A decade later, it seems our friends in Utah have not learned this lesson, as the Mormon Church reportedly threatened the MormonLeaks website with legal action over copyright infringement after the site hosted a PowerPoint presentation.
The site, which has generated past headlines by displaying restricted church papers on topics ranging from the salaries of Mormon apostles to rules governing calls home by missionaries, had taken down the presentation after The Church of Jesus Christ of Latter-day Saints threatened legal action March 1. Based on a copyright-violation allegation, it marked the first time that the Utah-based faith had turned to its attorneys to challenge MormonLeaks' revelations in the four months the site has been up. On Tuesday, the site reposted the material, along with a letter sent Monday to Barry Taggart, a representative of the LDS Church's Intellectual Property Office.
In the letter, MormonLeaks' Las Vegas-based attorney Marc Randazza contends the site "obtained this document lawfully and had a right to distribute it in its capacity as a journalistic resource devoted to discussing facts about the LDS Church."
Readers of this site will be familiar with Randazza and his reputation for repudiating bogus takedowns and lame uses of intellectual property in this matter. His involvement does not bode well for the Mormon Church's prospects for the continued bullying of MormonLeaks through the inappropriate application of copyright law. The site is clearly well within the boundaries of Fair Use. And, while Utah's version of an anti-SLAPP law is horribly neutered, limited only to suits involving "the process of government", Randazza's otherwise congenial notice to the Church hints that there will be consequences of it doesn't walk away from all of this.
"At this point, my client is willing to let bygones be bygones," Randazza writes. "If your client is willing to step back from the brink, and to cease efforts to censor this material, my client is willing to refrain from bringing a claim [of abusing copyright law]."
While it should be clear to the Church that the best move now is to walk away, it would have been far better had it never tried this bullying tactic to begin with. After all, the Streisand Effect has now taken over, with news of the dispute resulting in wider publicity for the site and documents that were targeted for removal.
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Posted on Techdirt - 14 March 2017 @ 3:07pm
Much of the way the movie industry looks to combat film piracy will seem familiar to readers of this site. It typically involves shakedown threat letters, games of DMCA whac-a-mole, and a paint-by-numbers approach that mostly amounts to film studios shaking their lawyers' fists at the sky. All that produces the status quo, where piracy is still a thing, films still make gobs of money, and regular observers of it all are left scratching our heads wondering how so much noise could be made over it all.
But I will give credit where credit is due as Costa Rican film distributor Romaly deserves some style and creativity points for its new anti-piracy tactic.
Romaly has employed an extremely creative tactic to reach out to would-be pirates. Their work can be seen over at LegalTorrents.net, a site that has clearly been modeled on one of the most famous torrent indexes ever. As the screenshot below shows, it is a semi-convincing KickassTorrents clone with a similar logo, color scheme and word cloud.
Here's how nice a job Romaly did in dressing the site up to look like KAT.
And the torrents on the site are actually real, except they aren't torrents for the actual movies in question. Instead, the downloads play trailers for those movies along with messaging about how piracy has a negative impact on the film industry. But the coup de grace is the inclusion of an email address where the downloader can request two free movie tickets for the film they attempted to pirate.
The cloning of a torrent site feels a little shady, but it also feels somewhat innocuous. The attempt to educate pirates that piracy is bad is also rather "meh", as that's been tried before. But attempting to build up some goodwill in the form of getting downloaders to the theaters is actually pretty smart, relying on positive actions rather than threats and tales of doom and gloom.
“With the creation of our own torrent download page we seek to approach all those who try to carry out this type of illegal action and create awareness on the subject through positive reinforcement,” says Alonso Solís, marketing manager of Romaly.
“By providing tickets we want you to remember that cinema is an experience that goes beyond a computer. In the cinema, people enjoy an entertainment space that allows them to get rid of their occupations and dedicate one or two hours to themselves.”
That's the kind of thing we've been saying for years, in fact, and it's something the movie industry should be pushing on even harder. Now, it's worth noting that the folks at TorrentFreak attempted to put this whole concept through its paces and found a lot left to be desired. It seems the seeds on these torrents are limited, resulting in failed downloads all over the place. That sort of defeats the purpose of the educational information and the free tickets.
Still, points for the effort, and for trying to forge a connection with downloaders rather than relying on the mere shaking of legal fists.
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Posted on Techdirt - 10 March 2017 @ 1:11pm
Back in 2014, much was made about piracy in Australia, specifically whether Aussies using VPN services to get the American flavor of Netflix should be more heavily combatted and how release windows for movies in Australia were pushing the public to pirate the film instead of waiting for it. While much of the conversation about Netflix was unfortunate, we did see some positive signs about release windows coming from distributors in Australia. One distributor, Village Roadshow, even had its CEO admit how badly a delayed-release window had boned them when it came to the wildly popular The Lego Movie.
Burke admitted last night that the delayed release of The Lego Movie in Australia after the release in the United States to coincide with the school holidays was a mistake.
"We made one hell of a mistake with Lego. It was an Australian film, we financed it together with Warner Brothers, it was made here in King's Cross. Because it was so important, we held it for a holiday period; it was a disaster," he said.
"It caused it to be pirated very widely, and as a consequence — no more. Our policy going forward is that all of our movies we will release day and date with the United States."
These kinds of revelations are a positive sign. Rather than shouting about piracy and copyright law, Burke realized that what spurred much of the piracy was his company's refusal to release the movie as soon as it became available. Instead, the company delayed the release to coincide with school holidays, theorizing that this would create a better opening for the film in Australia. The public, however, demonstrated that it would much rather see the film as soon as it should have been available, as it was heavily pirated in Australia.
So, lesson learned, right? Nooooooooope. Instead, Village Roadshow recently performed the exact same delayed-for-school-holidays release for a movie. The name of that movie? Lego Batman, because if you're going to do the exact opposite of what you pledged, you might as well make it as ironic a flipflop as possible.
AUSTRALIAN moviegoers were left with a bitter, yet familiar, taste in their mouth in December when the distributor of the The Lego Batman movie announced it would have a delayed release date, premiering Down Under more than six weeks after it hits US cinemas.
According to the Village Roadshow CEO, “99 per cent” of the films distributed by the company line up with the US release date. But in this instance, they believe the loss of sales due to piracy will not outweigh the boon of the school holidays when Aussie families fork out at the box office.
So it's the exact same theory that the exact same CEO said didn't work a mere two years ago? Come on, guys. What has changed in two years to make them think it's going to be any different this time around? And, perhaps more importantly, what can the company possibly say when Lego Batman is being heavily pirated in the exact same way as The Lego Movie? It can't scream about piracy, or the public will simply refer them back to that thing they said two years ago when they admitted it was the fault of the delayed release. It can't pledge to kill the delayed windows, because it already did that and it turns out that it was a pledge worth nothing. Instead, Village Roadshow will be able to merely stay silent and not count the money it should have been making.
The statements coming from Burke this go around are far less encouraging.
“Yes, we will lose a lot to piracy, but the other side of the coin is the film is available when the audience that goes to these sort of films wants to see it,” he said. “When certain films go out in non-holiday periods, our audiences get very cross because the kids are not available to take them.”
Aside from the fact that this line of thinking didn't work with a nearly identical movie delayed in an identical way a mere two years ago, nothing about this statement makes sense. If you're losing a lot of viewers to piracy, that's because they don't want the release delayed. It can't be both that the film is heavily pirated and the public wants the delay causing the piracy. That makes zero sense.
I can't wait to see Burke's reaction in the window between the American release and the Australian release.
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Posted on Case Studies - 10 March 2017 @ 10:47am
We all know by now the music industry's mantra that piracy kills artists. Well, not kills kills, but kills their musical careers before they could even really begin, so destructive is the dissemination of free music amongst the public. After all, if the public doesn't pay for every last instance of every last bit of music, how in the world could musical artists ever make a living? This mantra is one that tends to be applied universally to the concept of free music by the industry, with zero in the way of nuanced discussions about potential business models that might work for some, or many, artists.
Except that that's silly. It ignores the power of freely disseminated music in helping musicians to be discovered in the first place, where they can then go on and make all kinds of money through what have always been better profit-centers for artists, such as concerts, merchandise and the like. Many artists don't understand this, swallowing the industry's mantra whole. But there are exceptions, such as Ed Sheeran, who began his career sans record label, promoting himself instead.
Beyond writing the songs, Sheeran also wrote his own rules about how to sell them. Like so many others, he had set off for London as a teenager, singing on street corners and in pubs. But he didn’t knock on record company doors or wait to be discovered. Instead, he began marketing his own stuff, releasing his music himself on websites until -- inevitably -- a record label came calling. He had already earned half a million from his independent sales, putting the music out himself.
“What I didn’t have was infrastructure,” Sheeran said. “They have an American label, they have a Japanese label, they have an Australian label. So that’s what I was signing for.”
And that infrastructure is where labels can indeed provide some value. Except it's simply not the value for which labels have taken so much credit for far too long. There was no initial discovery and nurturing done by the labels in Sheeran's case. Sheeran did that himself. Instead, the labels came calling after the initial work was done and pitched even wider distribution in exchange for slapping their names on an already ascending star. This serves as a rebuttal to some of the reaction you see in cases such as Run The Jewels, with some complaining that their free music strategy chiefly worked because they were already a household name. Sheeran's case is the opposite, in which he became a household name because of his free music strategy. It's not that the strategy is easily portable to every artist in every case, but it does remind us that the blanket disgust toward piracy by the music industry is not supported by reality either.
But even after the labels were involved, Sheeran indicates a clear understanding of how and why his music supercharged his fame to the household status it now has.
Who helped him first? Fans, he says. “It was file sharing. I know that’s a bad thing to say, because I’m part of a music industry that doesn’t like illegal file sharing.”
“Code for piracy.”
“Yeah, but illegal fire sharing was what made me. It was students in England going to university, sharing my songs with each other.”
And what is his view on file sharing now? “I don’t think file sharing exists now.”
“Yeah, I think people rip off YouTube. That’s a thing. But I feel like it’s so easy to stream.”
Sheeran's case goes beyond simply giving music away, of course. His treatment of his fans creates a bond as well, one that fosters a desire among the fanbase to support him. The free music alone isn't enough, he needed his personality and talent, as well, to make it work. Still, it's easy to read shrugged shoulders into his comments on music piracy in the present, and obvious gratitude for it in his past. It's unfortunate how rare this mode of thinking is, which is why it's a bit jarring to hear a star like Sheeran say something as profound as "illegal filesharing was what made me." You can almost hear the groan from label executives as you read the words from a man far too busy counting his money and making his art to care.
And, to counter another industry claim that any gain by an artist through piracy is short-lived, it's worth noting that Sheeran's latest work is selling, and selling well. At a record breaking pace, in fact, even as the concert venues continue to sell out for Sheeran's appearances.
Not bad for a young man who credits piracy for all that glory.
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Posted on Techdirt - 9 March 2017 @ 2:49pm
Last month, we discussed the stark reversal by the Chinese government in the matter of many trademarks for President Trump's businesses. In that post, we tried to tackle the question of whether China's sudden approval for a "Trump" trademark on construction services was a violation of the emoluments clause. How you answer this question tends to fall along political fault lines, which is unfortunate. Notably, those that did not find a violation by the trademark approval often suggested that this was one trademark that had been in dispute for years, long before Trump began his campaign for the presidency. Is one single trademark being granted to a sitting President that claims to no longer control his business directly really going to amount to a constitutional violation? Many didn't think so.
But now the conversation will change drastically, as the Chinese government has given preliminary approval on thirty-eight more trademarks to the Trump business, just in the last few weeks. And these trademark applications were filed during the Trump campaign, mind you.
China has granted preliminary approval for 38 new Trump trademarks, a move that offers a potential business foothold for President Donald Trump's family company and protects his name in a country notorious for counterfeiters. Trump's lawyers in China applied for the marks in April 2016, as Trump railed against China at campaign rallies, accusing it of currency manipulation and stealing U.S. jobs. Critics maintain that Trump's swelling portfolio of China trademarks raises the possibility of conflicts of interest.
Dan Plane, a director at Simone IP Services, a Hong Kong intellectual property consultancy, said he had never seen so many applications approved so expeditiously.
Plane said he would be "very, very surprised" if officials from the ruling Communist Party were not monitoring Trump's intellectual property interests. "This is just way over your average trademark examiner's pay grade," he said.
Now, I will stipulate that it's not uncommon for American businesses to file for trademarks in China as a matter of a defensive posture. The country is notorious for the use of known marks by Chinese businesses clearly trading off of the original marks' fame. But that doesn't really matter for the purposes of an emoluments discussion. The fact is that before he was elected, Trump only lost when it came to his trademark applications in China. Now his business, from which he has not divested, and the trust for which he can disolve at any time, is winning at every turn. Given both the volume of applications and the speed with which they're being approved, it seems the famously ham-fisted Chinese government isn't really trying to bother hiding how much favor it's suddenly heaping upon President Trump's business.
And there are those on both sides of the political aisle pointing at what's going on and raising the emoluments clause again.
Richard Painter, who served as chief ethics lawyer for President George W. Bush, said the volume of new approvals raised red flags.
"A routine trademark, patent or copyright from a foreign government is likely not an unconstitutional emolument, but with so many trademarks being granted over such a short time period, the question arises as to whether there is an accommodation in at least some of them," he said.
Painter and Norman Eisen, who served as chief White House ethics lawyer for President Barack Obama, are involved in a lawsuit alleging that Trump's foreign business ties violate the U.S. Constitution. Trump has dismissed the lawsuit as "totally without merit."
In fact, spokespeople for Trump's business have claimed that as well, essentially stating that there is nothing to see here, it's business as usual, move along. But that doesn't square with history, nor how that history suddenly changed course to coincide with Trump becoming a political figure. Thirty-eight trademarks being approved in a matter of weeks when he couldn't get one approved for years. By a foreign government. Whatever your leanings, the question about whether this violates the Constitution certainly can't be called crazy any longer.
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Posted on Techdirt - 9 March 2017 @ 11:52am
There has been a great deal of conversation recently about the news media and its ability to do both its job and rebuild trust amongst the public. Trust is the key word there, as that's really all a news organization has to sell its readers. If there is no trust, deserved or otherwise, then the news has no product to sell the public.
With that in mind, I can't even begin to imagine why several Gothamist websites began purging stories about the Ricketts family after, or just before, the Ricketts-owned DNAinfo organization acquired it.
DNAinfo, the local-news organization owned by right-wing billionaire Joe Ricketts, announced today that it has purchased Gothamist LLC, a network of web sites covering cities from New York to Los Angeles. (In advance of the acquisition, DNAinfo laid off a slew of experienced editors and reporters.) At some point either before or after the acquisition, Jezebel has learned, Gothamist deleted critical coverage of Ricketts from its New York and Chicago sites.
As the tally currently stands, at least five posts about the Ricketts' have disappeared from Gothamist sites, all of them fairly scathing about the family's political and business interests. Much of the early conversation centered on whether DNAinfo had demanded those posts be taken down after the acquisition, but the Jezebel post includes an update with a response from Gothamist co-founder Jake Dobkin.
Dobkin responded to a follow-up question from Jezebel about when they deleted the Ricketts posts: “Jen and I made the decision when our discussions with Mr. Ricketts were starting to get more serious; about a month ago.”
That indicates the site proactively purged the stories during the acquisition negotiations. Dobkin has previously commented on the reason for the takedowns.
“Just as Bloomberg doesn’t cover Bloomberg, we don’t plan to cover Joe Ricketts and so we decided to take down our coverage of him. No one asked us to do it,” Gothamist co-founder Jake Dobkin told Jezebel. “It was a decision made solely by Jen [Chung] and me.” (In fact, Bloomberg frequently covers Bloomberg.)
Put together, here's what we're left with: Gothamist proactively took down posts critical of the family that owns the company in discussions about acquiring it and attempted to explain it by stating something that isn't true. How is that not worse than if Joe Ricketts himself had demanded the takedown of the articles?
This all puts Gothamist readers in the unfortunate position of having a site they like show its business belly for money at the detriment of any trust it had built up with its readers. And that's dumb. Not just dumb for Gothamist, but you'd have to think that someone with the business acumen of Joe Ricketts would be furious that the property he's acquiring would make itself less valuable in this way. If Gothamist sites nakedly make editorial decisions based on business interests in this way, what good are they?
And, of course, the deleted articles are still available in the Internet Archive. Much of the coverage of this includes links to those archived stories. So Gothamist torpedoed its trust bank to accomplish little, if anything.
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Posted on Techdirt - 8 March 2017 @ 5:16pm
For as long as I've spent time screaming about trademark issues in the alcohol industry in these here pages, I've repeatedly made the point that trademark laws the world over should be more nuanced when it comes to defining competitive marketplaces. The alcohol industries are perfect examples of this, with a fairly discerning customer base that is quite capable of knowing the difference between a beer and a single-malt whisky, or a bottle of wine, or the horror upon humanity that is sangria. But too many governing IP offices and courts take the lazy route of lumping these micro-markets into a macro-market for the purposes of claiming competition in trademark disputes.
But the courts don't always get this question wrong. Some, in fact, do bother to take the time to weigh the sophistication of the likely buyers of products within a marketplace when rendering a decision on a trademark dispute. And that seems to have been at least in part at play in a recent decision to allow a trademark to proceed for a whisky brand despite the objection raised by a beer brewer.
Jim McEwan, 68, was stunned when the beer giant threatened to derail his plans for a self-titled whisky business on the Isle of Islay where he lives. Brewer Charles Wells, which owns the McEwan’s range of Scots beers, objected to Mr McEwan registering his own name as a trademark.
The brand’s trademark agents said the application overlapped with their registered trademark “McEwan’s” and people could confuse the two businesses. They said Mr McEwan could benefit from this confusion, and called for his application to be blocked.
Now, Jim McEwan was helped in this dispute at least somewhat by the fact that he's basically Whisky Jesus in Europe. In the circles of the whisky industry, McEwan is a well-known name, having worked in the industry for decades, and having even been named to Whisky Magazine's Hall of Fame. Those of us who drink real whisky aren't any more likely to confuse a whisky with his name on it with a beer than we would confuse it with a gym shoe. That his trademark application was for branding consisting of his own surname made the dispute slightly more laughable, but it doesn't appear that was the court's focus in dismissing Charles Wells' objection to the trademark application.
Now the UK Intellectual Property Office (IPO), which rules on trademark disputes, has found in Mr McEwan’s favour after rejecting suggestions the two brands were likely to be mistaken for each other. In a written ruling, trademark hearing officer George Salthouse said: “The average consumer is well versed in discriminating between individual’s names, particularly a surname and a forename and surname. I accept the mark in suit may bring the opponent’s mark to mind, but I do not believe it will form a link that would affect the consumers’ economic behaviour or damage the opponents’ mark by tarnishing or blurring.”
The only way that statement makes sense is if the court has faith that the buying public for whisky will differentiate it from beer. Which, you know, of course they will. People who are regular buyers of whisky are complete snobs about it. I know this, because I am one. It's quite refreshing to see a court take the actual lack of confusion into account in a trademark dispute, rather than falling back on facile declarations of overly-broad marketplaces.
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Posted on Techdirt - 7 March 2017 @ 5:39pm
Update: The original story incorrectly suggested that the USPTO had allowed a trademark on "the Kitchen" when that's not the case. We've edited the article to correct that impression, and apologize for the error.
Generic terms that are allowed trademark protection are the bane of those that still believe trademark law serves a useful function. For the law to work as intended, to protect the public's ability to know what they're buying and from whom they are buying it, trademarks need to be both unique and identifying.
Take one current trademark dispute, for instance, which happily includes such big names as Wolfgang Puck and the brother of Elon Musk, Kimbal Musk. Those two are currently battling over whether or not the term "the kitchen" ought to be trademarked for the restaurant industry. Puck is opening new digs in Chicago with the name "The Kitchen by Wolfgang Puck." Musk is one of the founders of The Kitchen Cafe out of Colorado. Musk filed a lawsuit against Puck in Colorado over the trademark issue, with Puck's lawyers filing a motion to dismiss while also filing suit in Illinois to have the Chicago area be the venue for the litigation.
The Colorado complaint filed by Musk's company makes the following claim.
Puck's "use of The Kitchen immediately caused confusion in the restaurant industry and marketplace," according to the Colorado compliant, which The Kitchen Cafe filed against a different Puck entity, Wolfgang Puck Licensing.
The claim is fairly laughable for any number of reasons. There is the generic nature of the term in the restaurant industry, the fact that the term does nothing to identify the source of the restaurant ownership, and, most importantly, the wide swath of restaurants that incorporate the term into their names. And that's the reason for Puck's desire to move the venue to Chicago. Puck's lawyer, Steve Mick, explains it nicely.
Both parties have restaurants in Chicago, Mick said. "And we like the fact that within a mile radius of The Kitchen's location in Chicago, there are five or six other restaurants using the phrase 'kitchen.'"
In River North, there's Lyfe Kitchen, Travelle Kitchen + Bar and Doc B's Fresh Kitchen, according to the Illinois complaint. One North Kitchen & Bar is also nearby in the Loop.
"That just sort of underscores our whole point," Mick said. "They don't get to elbow out everybody."
And the fact that they haven't even tried is going to be a problem in the suit. If Puck's restaurants are infringing on Musk's trademarks, why aren't all of these other, longer-standing restaurants likewise infringing? The attorney for The Kitchen Cafe has an answer for this, but it's not a good answer.
"The Kitchen has no issue with descriptive uses of 'kitchen' that do not cause confusion, which is the case in these other instances," said Timothy Getzoff, the attorney representing The Kitchen Cafe. "In contrast, Puck's competing restaurant uses the exact same name, The Kitchen, which already has caused confusion in the market."
Which means that Musk's company essentially filed a trademark suit over the word "the." That word is the hangup here, even as the overtly generic term "kitchen" is utilized all over the restaurant industry. If Musk's suit isn't a loser, then I don't know what would be.
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Posted on Techdirt - 7 March 2017 @ 2:45pm
It's been more than a bit perplexing to watch ESPN, sports television giant though it may be, shrug its shoulders at the cord-cutting trend that has refused to bend to the network's pleasure. With streaming being a thing, and that super-charging the cord-cutting revolution, we've made the point for some time that the sports broadcast industry was eventually going to feel the grip of fewer subscribers, as has been the case with much of the rest of the television medium. Yet ESPN barely reacted at all to cord-cutting, other than to insist that established ratings systems are crap and that its loss of millions of subscribers over the past few years was of no concern, mostly because those subscribers were poor. ESPN President John Skipper said just last year:
People trading down to lighter cable packages. That impact hasn't leaked into ad revenue, nor has it leaked into ratings. The people who’ve traded down have tended to not be sports fans, and have tended to be older and less affluent. We still see people coming into pay TV. It remains the widest spread household service in the country after heat and electricity.
Yet those comments came almost immediately after a huge round of layoffs at the network in 2015, trimming the behind-the-camera staff to what is essentially a skeleton crew. Still, stock prices stalled for Disney, with much of the blame being placed upon ESPN's subscriber loss. Some market experts have made some rather bold predictions that the subscriber woe for ESPN is over-hyped, even going so far as to predict massive market gains for Disney this year. That optimism seems to be largely built on the recent investment ESPN has made into digital distribution and streaming options. But if anyone out there is buying such optimism, the executives at ESPN do not seem to be among them.
Richard Deitsch at Sports Illustrated has a detailed write-up of ESPN's plans for its on-air talent in 2017 and it certainly looks like that talent is going to have reason for concern about cord-cutting that the executives lack.
SI has learned that ESPN will have significant cost-cutting over the next four months on its talent side (people in front of the camera or audio/digital screen). Multiple sources said ESPN has been tasked with paring tens of millions of staff salary from its payroll, including staffers many viewers and readers will recognize. Those with contracts coming up would be particularly vulnerable, sources said. The company is also expected to buyout some existing contracts, which is something rare for ESPN historically beyond a few NFL talents. The cuts are expected to be completed by June. Sources within ESPN say that there is no set list of names yet and stressed that behind-the-scenes people will likely (key word) not be impacted by these cuts.
Last month Reuters reported Disney had a lower-than-expected quarterly revenue, hurt by the drop in advertising revenue at ESPN. In addition, ESPN continues to shed subscribers at an enhanced rate, down to 88.4 million households in Dec. 2016. That number was 100.002 million in Feb. 2011.
It had to happen eventually. A network can't drop subscribers at rates in the double-digits without eventually taking a hit on the ad-revenue. Couple that with the sports licensing landscape in which partnering with teams and leagues has never been more expensive and it becomes difficult to see a way out this wilderness for ESPN. And, if this seems like a terrible trend for a business generally, it's particularly bad for a brand like ESPN, whose on-air talent has always been a key part of its success. The network likes to argue that it makes the talent popular and not the other way around, and it has some recent examples that demonstrate this to some degree, but the truth is that the talent and the network are more symbiotic than that. There's a reason why the retirement of Chris Berman, annoying slogan peddler though he may be, is such a big deal. He's been a titan for the network. Replacing that while cutting pay for the on-air talent is a unenviable task, to say the least.
And, just to be clear, this is mostly to do with cord-cutting and the numbers we're talking about are enormous.
The most immediate causes of the layoffs are clear. Over the last several years rights fees have skyrocketed, with ESPN now paying over $3.3 billion annually just to broadcast the NFL and NBA. Simultaneously, ESPN’s subscriber count and viewership—the fabled dual revenue stream that has made it the most envied television company in the country—have tumbled. While the loss of 12 million subscribers over five years is mostly due to generalized cord cutting, and not subscribers specifically dropping ESPN, it doesn’t really matter: It still amounts to losing almost a billion dollars annually. The status quo is unsustainable, and with rights fees already locked in for several years, salaries are one of the biggest areas available to cut expenses.
This how media giants die. Not quickly, or with mercy, but rather by being slowly bled to death by the reality of new times and un-adopted innovation. Sources from inside the company suggest ESPN execs weren't even discussing the cord-cutting trend until 2015. It seems that may prove to have been too late to right the ship in Bristol.
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Posted on Techdirt - 6 March 2017 @ 11:48am
There's been something of a trend recently in which the digital realm of video games have begun penetrating reality. This has taken several forms, from many countries attempting to dress up their real world military capabilities using video game footage, to infractions within the gaming realm resulting in real world criminal charges. This has come to be in part because gaming has become a dominant form of entertainment for so much of the population and in part because of how realistic games have become.
But neither seems to be much of a factor in what I think is a first: Bolivia has filed a dipolomatic complaint with France in response to the country's fictionalized portrayal in Tom Clancy's Ghost Recon Wildlands.
The Bolivian government has filed a formal complaint with the French embassy about a video game produced by a French company that portrays the South American country as an area controlled by drug traffickers, authorities said. Speaking to reporters on Wednesday, Interior Minister Carlos Romero said Bolivia had delivered a letter to the French ambassador and asked that the French government intervene, adding that Bolivia reserved the right to take legal action.
"We have the standing to do it (take legal action), but at first we prefer to go the route of diplomatic negotiation," Romero said.
Now, the setting for the game is a fictionalized version of Bolivia where, contrary to reality, large swaths of the country are controlled by Mexican drug cartels that are wreaking all manner of havoc over the land. The key part of that would be that it's fictional. As in not mirroring reality. You know, such as pretty much every other work of fictional art that has ever been created.
Oh, also, Ubisoft chose Bolivia for the setting specifically because of how much it appreciated the beauty of the country.
In a statement to Reuters on Thursday, Ubisoft said the game is "a work of fiction" and that Bolivia was chosen as the background for the game because of its "magnificent landscapes and rich culture."
"While the game's premise imagines a different reality than the one that exists in Bolivia today, we do hope that the in-game world comes close to representing the country's beautiful topography," Ubisoft said.
I don't know what the workload of the Bolivian diplomatic corps looks like, and I frankly don't care. There simply must be more relevant work to do than shaking a diplomatic fist against the home country of a video game company over an artistic work of fiction. I have no idea what Bolivia's end-game was in trying to get France to intervene in Ubisoft's work, but I'm sure it wasn't the actual outcome, which is to have Bolivia look both petty and silly, as well as hostile to art and free speech.
I'm not sure what standing Bolivia thinks it actually has to do anything about this, but I'm fairly certain that such standing is every bit as fictional as the Bolivia from the game.
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