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About Dark HelmetTechdirt Insider

I am a technology consultant, contributor here at Techdirt, and an author. I hope to someday get enough people reading the books I sell to garner a scathing review.

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

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Posted on Techdirt - 23 February 2018 @ 3:33pm

Game Studio Threatens Employees' Jobs If They Don't Write Positive Reviews Of Own Game, Then Steam Pulls Game Entirely

from the backfire dept

It's no secret that Valve's Steam platform is the dominant marketplace for PC video games. Much comes along with that status, including the strategies and metrics studios must employ to get their games noticed on Steam. One of the important metrics for recognition is Steam reviews. And it's not just the review scores themselves that are important, but actually getting reviews -- any reviews -- to begin with is a big deal.

So it's no surprise that game studios strategize on how to get their games in enough customer hands to generate reviews. Still, one studio's strategy has massively backfired. Insel Games out of Malta recently released Wild Buster, it's latest title. Sadly, in the all important initial release window, the game was not generating enough reviews to result in a general review score on the game page. Those scores are often used by consumers to quickly decide whether a title deserves their attention at all and a lack of a score can indicate that the game isn't good enough to even warrant a look. Insel's CEO, Patrick Steppel, decided to address this with a strongly-worded email to his own staff insisting that they all buy the game and review it, despite having had a hand in making the game. If employees refused to do this, Steppel warned that it could mean that they would no longer have a job at the studio.

“I had [sent] an email earlier but I was told that some of you announced to colleagues that you do not want to make a purchase of the game and/or a review. Frankly, this leaves me pretty disappointed. Of course I cannot force you to write a review (let alone tell you what to write) - but I should not have to. Neglecting the importance of reviews will ultimately cost jobs. If WB fails, Insel fails, IME fails and then we all will have no job next year. So I am asking you either of do the following: buy the game and present me the receipt until Friday night for which (together with a claim form) you will be re-imbursed within 24h or explain to me tomorrow why you do not wish to do this. I would like to discuss this individually and privately with each of you and will follow up.”

Corresponding with the timing of this email was a deluge of reviews suddenly washing over the game's Steam page, all of them glowingly positive. This, as many of you will know, is a form of astroturfing and it's plainly unethical. The point of reviews is for Steam customers to get a sense of what other Steam customers think of a game so as to inform their purchasing decisions. It is not a place for those who made the game to surreptitiously fool customers into thinking a game is better than it is by posting reviews from a clearly biased source. For the CEO of a studio to suggest employees do this at the end of a pointed employment-gun is all the more galling.

And, ultimately, ineffective, given that Valve has responded from pulling every single Insel Games product from its marketplace.

In a post last night on the Steam forums, a Valve representative wrote that as a result of this new information, the store has pulled all of Insel Games’ products. “The publisher appears to have used multiple Steam accounts to post positive reviews for their own games. This is a clear violation of our review policy and something we take very seriously. For these reasons, we are ending our business relationship with Insel Games Ltd. and removing their games from our store. If you have previously purchased this game, it will remain accessible in your Steam library.”

Laughably, Streppel has publicly admitted to sending out the email while also insisting that he will appeal Valve's decision. What the basis of that appeal could be, given his admission, is anyone's guess. Streppel also insists that he didn't mean to threaten anyone's job and that he has not punished any employee that refused to write a review or buy the game, although that kind of gaslighting likely won't find much purchase in a gaming public that doesn't look kindly upon this kind of subterfuge.

So, the lesson is that game studios should take the efforts they would spend conniving over how to fool customers and just make great games instead. Otherwise, the backlash may be more than they can handle.

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Posted on Techdirt - 23 February 2018 @ 3:23am

Game Studio Found To Install Malware DRM On Customers' Machines, Defends Itself, Then Apologizes

from the that-was-quick dept

The thin line that exists between entertainment industry DRM software and plain malware has been pointed out both recently and in the past. There are many layers to this onion, ranging from Sony's rootkit fiasco, to performance hits on machines thanks to DRM installed by video games, up to and including the insane idea that copyright holders ought to be able to use malware payloads to "hack back" against accused infringers.

What is different in more recent times is the public awareness regarding DRM, computer security, and an overall fear of malware. This is a natural kind of progression, as the public becomes more connected and reliant on computer systems and the internet, they likewise become more concerned about those systems. That may likely explain the swift public backlash to a small game-modding studio seemingly installing something akin to malware in every installation of its software, whether from a legitimate purchase or piracy.

FlightSimLabs, a studio that specialises in custom add-ons for other company’s flight sims, has been found to be secretly installing a program onto user’s computers designed to check whether they’re playing a pirated copy of their software.

The code—basically a Chrome password dumping tool— was discovered by Reddit user crankyrecursion on February 18, and as TorrentFreak reportwas designed to trigger “a process through which the company stole usernames and passwords from users’ web browsers.”

Whatever fuzzy line might exist between DRM payloads and malware, this specific deployment appears to have crossed it in a very big way. The extraction of user names and passwords for infringers would be a step too far on its own, but the real problem is that the executable that does all of this was included in every copy of the software FlightSimLabs provided, including those from legit purchases.

Lefteris Kalamaras, who runs FlightSimLabs, admitted that the installation of a file named "test.exe" was included in the software installation, but insisted that it was only weaponized when a pirated copy of the software is detected.

First of all - there are no tools used to reveal any sensitive information of any customer who has legitimately purchased our products. We all realize that you put a lot of trust in our products and this would be contrary to what we believe.

If such a specific serial number is used by a pirate (a person who has illegally obtained our software) and the installer verifies this against the pirate serial numbers stored in our server database, it takes specific measures to alert us. “Test.exe” is part of the DRM and is only targeted against specific pirate copies of copyrighted software obtained illegally. That program is only extracted temporarily and is never under any circumstances used in legitimate copies of the product. The only reason why this file would be detected after the installation completes is only if it was used with a pirate serial number (not blacklisted numbers).

This attempt at an explanation failed to assuage the gaming community for understandable reasons. To include a program capable of extracting passwords in a flight simulator mod is flatly insane. The only proper description for such software would be malware and that malware was installed on the machines of customers of FlightSimLabs that had properly paid for its products. The claim that this malware remained dormant for those purchasing the mods would be the same as claiming that each of our homes have been outfitted with bombs without our knowledge, but those bombs will only be activated if the home builder thinks we're doing something illegal. This is all wide open for mistakes, abuse, and for other bad actors to swoop in on these customers and make use of the software for nefarious reasons.

Shortly after Kalamaras' "explanation", FlightSimLabs updated the mods in question with the malware removed entirely. The company also updated its community with an apology that still somewhat misses the mark.

We have already replaced the installer in question and can only promise you that we will do everything in our power to rectify the issue with those who feel offended, as well as never use any such heavy-handed approach in the future. Once again, we humbly apologize!

This isn't about "feeling offended", it's about the company breaking the trust of its customers by installing what is clearly malware on their machines. That isn't the type of bad act a company should be able to come back from.

48 Comments | Leave a Comment..

Posted on Techdirt - 22 February 2018 @ 8:05pm

Everyone In the Cook County Criminal Court System Too Busy Pointing Fingers To Fix Its Antiquated Records System

from the carbon-paper?--seriously? dept

When you write regularly about lawsuits, you learn very quickly that not all court systems are equal when it comes to allowing modern access to public filings and records. The country is a veritable panoply of an access spectrum, with some districts offering modern e-filing systems and websites to review documents, while other districts are far more antiquated and restrictive. That said, it's hard to imagine a county court system more backwards than that of Chicago's Cook County.

Every workday, attorneys enter criminal courtrooms across Cook County, put away their smartphones and operate in a world that their grandparents would have recognized: accordion-style Manila folders to hold paper documents, handwritten orders for judges to sign, even carbon paper to make copies of the paper filings.

“God help us all if the carbon didn’t take,” said defense attorney Alana De Leon, who had never used the outdated copying method — invented more than two centuries ago — before setting foot in a West Side branch court a few years ago.

While the Tribune article notes that these antiquated techniques result in derisive jokes from the attorneys forced to use them, the reality is that they are no laughing matter. The article tells the story of a woman looking for filing information for her boyfriend's criminal court case and was forced to travel 14 miles just to find out what charges her boyfriend was facing. And this sort of thing isn't reserved for the lay public. Criminal defense attorneys must also make a similar trek just to find out the basic case information for any clients they may take on in Cook County as well. In the surrounding counties, this information would be available via e-filings via an internet connection. In Cook County, home to the third largest city in the union, its all physical filings and carbon copies.

Circuit Court Clerk Dorothy Brown, in charge of this love letter to the days of robber barons, does not want to hear you blame her for any of this, however.

Circuit Court Clerk Dorothy Brown bristled at the suggestion that her office has been slow to adapt to the internet age, telling the Tribune in an hourlong interview last week that a complete overhaul of the criminal case management system is expected to be completed by March 2019. Brown spoke of an “interactive” system in which much of the work performed by attorneys and judges in the courtrooms could be done electronically. Brown said her ultimate goal is to end the reliance on ink and paper.

While that may all sound good, if quite late, it's worth noting that Brown is the same Clerk that has gone to court to block press access to e-filings in recent weeks.

Dorothy Brown, Chicago’s elected court clerk, filed her appeal notice this week, challenging a ruling in early January by U.S. District Judge William Kennelly. The judge found the First Amendment prohibits the clerk from withholding new efiled complaints, a regular source of news, from the press corps. He gave the clerk 30 days to provide access.

She made no move to comply and continues to argue that she must first screen the filings for confidentiality. In his 16-page opinion, Kennelly found that argument belied by a number of effective alternatives available to the clerk.

It's moves like that which create the impression that the lack of transparency that comes along with Cook County's laughably anachronistic records systems is a feature rather than a bug. Cook County has long been a place where county and city officials have played a game of subterfuge with the press and the public, hiding legal machinations as well as actions taken by the city, such as million dollar payouts to the families of victims of police shootings. Making the court system as opaque as possible for as long as possible seems to be the goal.

Brown, of course, insists otherwise and blames the state Supreme Court and Chief Judge Timothy Evans for Cook County's woes.

Brown said her hands have been tied by the Illinois Supreme Court dragging its feet in allowing e-filing statewide in criminal cases for the first time just last year. She also blamed Chief Judge Timothy Evans’ office for blocking her from making basic docket information available online for criminal cases.

In an email, however, Evans’ spokesman, Pat Milhizer, denied Brown’s claim, saying his office would consider any such proposal from the circuit clerk.

Many will say this all smells of classic Chicago machine politics. And, in many respects, it certainly comes off that way. The suburban counties all have modern e-filing systems in place, after all, including several rural counties that don't have nearly the breadth of resources afforded to Cook County. What should be kept top of mind, however, is the tax all of this puts on the public and its interest in justice in the county. Going back to defense attorney De Leon and the use of technology as outdated as carbon copy:

“To a certain extent ... the lack of transparency kind of is the ugly product of the old system,” De Leon said. “I don’t know if it’s necessarily on purpose — to keep this information away from the average citizen — but it certainly is a consequence of that.”

And no amount of CYA or finger-pointing should distract anyone from the obvious reality that the public is not being well-served by the Cook County court filing system.

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Posted on Techdirt - 22 February 2018 @ 6:07am

Right On Time: Kentucky Governor Lays The Blame For Florida School Shooting At The Feet Of Video Games

from the simple-answers-to-complex-questions dept

In the wake of the school shooting tragedy in Florida that saw 17 people slain and more injured, the following days have played out in a depressingly familiar fashion. It's somewhat stunning to see such bloodshed result in the predictable retreat by most people to the defensive or offensive ground of their cause du jour. What should be immediately obvious to anyone seriously examining something like the mass murder of school children and teachers is that the reality that surrounds such an event is messy, complicated, and influenced by detail. Yet, as is our wont, entirely too many people decide that the solution to the mass shooting puzzle is made up of one or two pieces, rather than hundreds and thousands. It's guns. It's specific types of guns. It's mental health. It's rap music, or the waltz, or comic books. It's one of these things that deserve our ire, or maybe two if we're feeling generous.

Well, it was only a matter of time, but contributing to this non-conversation is Kentucky Governor Matt Bevin, who has yet another cliched scapegoat upon which to place the sins of the shooter.

"There are video games that, yes, are listed for mature audiences, but kids play them and everybody knows it, and there's nothing to prevent the child from playing them," Bevin said in an interview on WHAS' Leland Conway show Thursday morning. "They celebrate the slaughtering of people. There are games that literally replicate and give people the ability to score points for doing the very same thing that these students are doing inside of schools, where you get extra points for finishing someone off who's lying there begging for their life."

"These are quote-unquote video games, and they're forced down our throats under the guise of protected speech," Bevin continued, seemingly referring to a 2011 Supreme Court decision that prevents content-based restrictions on games. "It's garbage. It's the same as pornography. They have desensitized people to the value of human life, to the dignity of women, to the dignity of human decency. We're reaping what we've sown here."

We are indeed, except what we've reaped has been a vibrant culture in which art and expression are both liberated and celebrated. We owe that to the very First Amendment protections at which Bevin finds it so easy to sneer. Importantly, at no point did Bevin suggest that Nikolas Cruz himself had any affinity for any particular video game or games. For Bevin, such details matter not. A campaign against video games has been the Governor's aim since long before Cruz shot up his former school and the shooting simply provided an excuse to rant against a favorite whipping post.

If that sort of co-opting of real violence doesn't outrage you, it certainly should.

As should how divorced from the facts Bevin's claims are generally.

International comparisons of per capita spending on violent games and gun-related murders show a negative correlation between the two. And meta-analyses of video game violence studies have found no real link between imaginary on-screen violence and actual aggressive behavior.

With that in mind, understand that Bevin, the head of a state in our union, is suggesting an attack on the First Amendment protections of a form of art in response to a correlation to violence that is at best unproven, and for which much evidence to the contrary exists. Whatever that is, it isn't good political leadership.

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Posted on Techdirt - 20 February 2018 @ 3:36pm

Ubisoft Perma-Bans Creator Of Cool, Non-Cheating Tool For 'The Division' Because It Was Made With Cheating Software

from the cluster-bomb-collateral-damage dept

There are lots of ways companies can deal with those who cheat in online video games. We have seen developers and publishers sue those who cheat, we have seen national governments criminalize this kind of cheating, and we even got to see Rockstar's attempt to force cheaters to only play with other cheaters. While these sorts of efforts vary wildly, the common response from game publishers is to be entirely too ham-fisted in keeping cheaters out of online games. This results in all sorts of problems, ranging from punishing players who weren't actually cheating to creating all kinds of collateral damage.

One example of the latter recently transpired when the maker of a very cool tool for Ubisoft's Tom Clancy: The Division found himself permanently banned from the game even though he hadn't participated in anything resembling cheating at all. First, let's outline what he created.

Cinematic Tools is a program developed by a Finish physics student named Matti Hietanen to help players take control of in-game cameras for the purposes of capturing interesting footage and images. He’s made the tool for 22 games, from Battlefield 1 to Dark Souls III, to Star Wars: Battlefront II. When the program is running, players can map Hotkeys to things like a free cam mode, timestop, and HUD removal as well as play around with the camera’s depth of field. This means they can unhook the camera from their player, make the sun set, change the weather and snap a great screenshot of the game from an angle that normal players would never see. It can result in beautiful work.

Beautiful isn't the half of it. The tool is essentially designed to allow players to take cinematic shots in a variety of games, including The Division, which they can then share with the wider world. Put another way, the tool basically allows the fans of these games to show off the fantastic visuals within them from angles that would have otherwise been unavailable. Using the tool, you get artistic in-game shots such as this:

That's just an example; there are a ton more of these types of shots. Two things are immediately evident when you view the "photos" taken using the tool. First, there are many fans of these games that go to great lengths to add an artistic eye to setting up these shots. A great deal of care has gone into the positioning of the camera, the lighting, and the depth of field settings, all of which are enabled by Cinematic Tools. Second, the visuals in these shots are absolutely stunning and full credit for that aspect of the shots goes to the makers of these games. If these screenshots do anything at all, they highlight the dedication and effort that gamemakers like Ubisoft and the developers they partner with to create mind blowing visuals for these games. It should be seen as an advertisement for these titles, if nothing else.

So why did Hietanen get banned? Well, because of the technology he used to make his application.

Cinematic Tools isn’t designed for cheating, but it was built using things like Cheat Engine, a program that some players use to look for opponents’ information, positions, and aim angles in a multiplayer match. He said he used them in order to dig into the game’s code and find ways to take control of its third-person camera, day and night cycle, and weather effects. All of this breaches the game’s Code of Conduct. Hietanen warns potential users of Cinematic Tools on his website that bans are possible.

Hietanen thinks that its his use of Cheat Engine that got him in trouble and not for his own Cinematic Tools program. “I’ve heard of other people who have gotten banned for using Cheat Engine for screenshotting so that gives me some confidence it isn’t about the Cinematic Tools.” Using Cheat Engine to reverse engineer how a game’s camera works is currently an unavoidable part of how he builds his tools though. He added that while automated bans are expected, he hopes that appeals are at least looked at. “I don’t think that’d be too hard and staying completely silent to banned content creators, no matter how hard they try making contact, really sucks,” Hietanen said. This is the first time he’s ever been banned for life.

This serves to highlight a couple of things. To start, cluster-bomb style cheat blocking is going to create this kind of collateral damage. Period. Full stop. To be fair to Ubisoft, the company didn't start this war. Those who choose to cheat in its games did. Still, when a company's anti-piracy measures are so ham-fisted as to not only perma-ban a party that was not cheating, but also one who created a tool that is essentially a tool for advertising the visuals of the game in question, that's not a good anti-cheating strategy.

The other thing this highlights is that targeting tools and technology that can be used for cheating, but aren't limited to doing so, will end up causing collateral damage as well. In this case, it's hard to fault Ubisoft too much. I mean, the name of the program is "Cheat Engine." Still, it will hopefully be a useful bit of education for Ubisoft to have put a blanket target on that program only to see an innocent and beneficial result of that program caught up in a ban.

Hopefully Ubisoft will see the error in all of this and lift Hietanen's ban. He's essentially working for the company's advertising department for free, after all.

35 Comments | Leave a Comment..

Posted on Free Speech - 16 February 2018 @ 4:23pm

One Down: Instagram Caves To Russian Censorship As All Eyes Turn To YouTube

from the don't-be-evil dept

We had just been talking about Instagram and YouTube facing site blocks in Russia all because a billionaire didn't like his dirty laundry exposed online. For brief background, a noted Russian dissident, Alexy Navalny, had published photos of billionaire Oleg Deripaska and Deputy Prime Minister Sergey Prikhodko relaxing on a yacht with a young woman variously described as a model and escort fawning over them. Importantly, the salacious nature of the photos and videos is only half of the reason Navalny is drawing attention to them. The other reason is his accusations of corruption in government, as a massively wealthy oligarch consorts in this fashion with a high-ranking member of the federal government. Despite that, or perhaps because of it, Russian courts had handed Deripaska a legal victory and ordered sites hosting the images, including Instagram and YouTube, to take them down. Russia's notoriously corrupt site-blocking agency, Rozcomnadzor, issued an edict that the images be removed or the sites would face a potential full block in Russia.

In that post as well, we posited that American companies should not be assisting authoritarian regimes in political censorship of this sort. Well, it seems that Facebook's Instagram has decided to cave to the censors.

A spokeswoman for Facebook would not discuss the specifics of the case but confirmed that it had decided to comply with Roskomnadzor's demands.

"When governments believe that something on the internet violates their laws, they may contact companies and ask us to restrict access to that content," she said. "We review such requests carefully in light of local laws and where appropriate, we make it unavailable in the relevant country or territory. We are transparent about any content restrictions we make for government requests with local law in our Transparency Report."

Let's be clear about what happened here. A political opponent of the current Russian regime posted embarrassing photos showing both a potentially salacious act with a young woman and, more importantly, a potentially inappropriate relationship between government and a wealthy businessman. Whatever level of transparency Facebook desires to have on this matter, the simple fact is that an American company has chosen to bow to what certainly seems like pure political censorship. Whatever the privacy concerns Deripaska may have raised in court, it should be clear to anyone that similar pictures of some every-day person in Russia would not have been treated with so heavy a hand. This all looks to have been done to avoid political embarrassment above anything else.

And, so, now all eyes turn to Google.

Its response contrasts with that of Google's YouTube service. It had been ordered to block several clips before the end of Wednesday. But it has taken no such action.

Will Google cave as well? If I were to bet on the matter, that seems an outcome at least as likely as any other, but the company certainly shouldn't give into such demands. And, frankly, if any company has the power to get into a staring contest with the Russian government, it's Google. Whether it has the backbone for it remains to be seen, but I would guess there would be far too much backlash over a full block of YouTube in Russia to be worth the government blocking the site in full.

And, again, it's just not a good look to have an American company support this kind of corruption and censorship. It's a shame Facebook couldn't find its stance on the matter, but perhaps Google can do better.

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Posted on Techdirt - 15 February 2018 @ 9:44pm

Kudos To The Crock-Pot People For Handling The Online Fallout From 'This Is Us' So Well

from the what-a-crock dept

Corporate Twitter accounts typically range from the blandly uninspired to exhibiting unfortunate behavior. While you can occasionally get some good content out of these handles, they are far too often just...meh.

And, yet, let's see how the Crock-Pot brand of slow-cookers responded to a genuine freak-out on the internet that occurred after a recent episode of This Is Us. For those of you who watch the show, here's your insipid little spoiler alert. A main character on the show died in a recent episode when a slow cooker malfunctioned and burned the house down. Cool. Well, apparently that's when many viewers took to Twitter to announce that they were going to get these death machines out of their houses ASAP, with many mentioning Crock-Pots by name, even though there was no branding on the murderous slow-cooker in the show.

Fans freaked out, taking to social media with tales (and gifs) of throwing away their Crock-Pots. The Crock-Pot Brand people leapt into action, quickly creating a Twitter account (@CrockPotCares) to deal with the public relations problem that had been dropped in their lap like a delicious and family-pleasing but nevertheless painful batch of hot soup.

And they did a darn good job of handling all of this on Twitter. I'm conditioned at this point to expect for companies in these instances to mirror the online freak-out themselves, going crazy about what could be viewed as an unintentional attack on its their brand. Honestly, you half expect lawsuits to be drawn up almost immediately. Crock-Pot instead began educating the internet about the safety of its products while also drawing real connections with the viewers of the show so that it comes off as non-defensive.


It didn't end there. Apparently Crock-Pot even got the actor (hey, it's that guy from Heroes!) who plays the character who died to get in on the fun.

That's about as well as I can imagine a company handling all of this. There is also a ton more in the tweet history that shows how creative and hip whoever is managing the account has been. It would be entirely understandable for the Crock-Pot folks to be angry, irritated, or terrified of this online response to a television show. They could have easily lashed out at the show, or even at an American public who apparently has trouble telling the difference between reality and fiction. Instead, they chose to be cool and human and came off as both confident and friendly.

That's a good look all around.

52 Comments | Leave a Comment..

Posted on Techdirt - 15 February 2018 @ 3:34pm

US Piracy Lawsuits Shoot Out Of The 2018 Gates As The Malibu Media 'Coaching Tree' Spreads Its Seeds

from the more-to-write-about? dept

For those of you not interested in professional sports, allow me to educate you on the concept of the "coaching tree." This concept comes from the common decisions by losing teams to hire junior coaches out from under the head coaches of successful teams, hoping to siphon off some of the genius of more successful organizations. In football, for instance, you will often hear about the "Andy Reid coaching tree" as his assistants get head coaching jobs across the league after serving underneath him.

Sadly, a much more sinister version of this appears to be occurring in the copyright trolling space, with Malibu Media serving as a launching point for legal minds joining other organizations and replicating what they've learned from their former employer. The result has been an explosion in copyright lawsuits for the early part of 2018, with most of them coming from the porn-trolling industry.

According to Lex Machina, there were 1,019 file-sharing cases filed in the United States last year, which is an average of 85 per month. More than half of these came from adult entertainment outfit Malibu Media (X-Art), which alone was good for 550 lawsuits.

While those are decent numbers, they could easily be shattered this year. Data collected by TorrentFreak shows that during the first month of 2018, three copyright holders filed a total of 286 lawsuits against alleged pirates. That’s three times more than the monthly average for 2017.

As the TorrentFreak post goes on to note, while Malibu Media is still leading the way in these lawsuits, a company called Strike 3 Holdings is keeping pace with them, 138 lawsuits for the former and 133 for the latter. The rest of the companies that have filed suits against BitTorrent infringers are other porn-related organizations, save for Bodyguard Productions, which sues over the pirating of the Hitman: Bodyguard film. Interestingly, it seems that this significant uptick in the lawsuit rate has been driven by former Malibu Media employees finding new professional landing spots.

While Strike 3 Holdings is a relative newcomer, their cases follow a similar pattern. There are also clear links to Malibu Media, as one of the company’s former lawyers, Emilie Kennedy, now works as in-house counsel at Strike 3.

This comes at the same time that some courts are pushing back on these trolling efforts. Between some courts describing their tactics as harassing to questioning seriously the evidence that the trolls present to the court, this is the exact wrong time for the court system to suddenly be clogged with Malibu Media-trained legal minds hell bent on trolling for settlement dollars.

The only good that might come out of this, should this lawsuit pace continue, is a public recognition that these trolling operations need to be stopped.

94 Comments | Leave a Comment..

Posted on Free Speech - 15 February 2018 @ 3:27am

Instagram, YouTube Face Full Block In Russia After Billionaire Wins A Privacy Lawsuit Over Pictures With An Alleged Escort

from the real-subtle-guys dept

We've had ongoing discussions on this site about the ham-fisted website censorship policy that Russia has undertaken over the past few years. While the country was never one to embrace free and open speech and communication to the same degree as Western nations, recent times have seen a severe uptick in outright censorship with a variety of excuses rolled out for public consumption: copyright laws, stifling political opposition, and the protection of the privacy of public figures. The funnel point for all of this censorship is Russian agency Rozcomnadzor, itself the subject of corruption allegations, with a track record for racking up collateral damage numbers that would make any nation's army blush.

Through it all, there have been suggestions that entire sites with massive global followings would be blocked. YouTube and Twitter were previously found to be in the crosshairs of the Russian government, but nothing immediately came of the threat. Now, however, both YouTube and Instagram may face a very real choice: bow to the censorship demands of Rozcomnadzor or face full site-blocks in Russia. And, perhaps most strangely, this has all come to a head over a Russian billionaire's win in court to block the publication of photos and videos showing him on a yacht with what is reportedly an escort.

Russia may block access to YouTube and Instagram after billionaire Oleg Deripaska won a court injunction against videos and photographs that showed him and Deputy Prime Minister Sergey Prikhodko relaxing on a yacht with a woman described as an escort.

Deripaska won an order from the Ust-Labinsk district court in his native Krasnodar region ordering the removal of 14 Instagram posts and seven YouTube videos that breached his right to privacy, according to a spokeswoman for his Basic Element company. Anti-Kremlin campaigner Alexey Navalny said the order also threatens to block his website after he published an online film alleging that the videos and photographs posted by Anastasiya Vashukevich, who goes by the name Nastya Rybka, showed evidence of a corrupt relationship between the aluminum tycoon and the senior minister.

Following the court order, Roskomnadzor dutifully added the photo and video material to its list of things that must be censored and contacted YouTube and Instagram to order it to take the material off of its site or face being blocked throughout the country. For his part, Deripaska insists he just wants the specific photos and videos removed, not access to these entire sites. But from the point of view of the Russian censors, they don't have the ability to block access to just that material, or to the accounts posting them. Instead, this will come down to YouTube and Instagram either participating in the censorship or being blocked outright.

“It’s impossible for internet providers to block certain pages on Instagram and YouTube,” and they’ll have to block the services unless the material singled out by the watchdog is deleted, said Karen Kazaryan, chief analyst at the Russian Association for Electronic Communications, an internet lobby group. There’s also a “high chance that Navalny may need to remove this information to avoid being blocked.”

According to Navalny, Google has already informed him that he needs to remove the material in question or his account will be banned. The video is still up as of the time of this writing, but if Google indeed tried to bow to the censors in Russia, that needs to be called out. The context here is that Navalny is a member of the political opposition to the Russian government and his posts on this topic have as much to do with accusations of an improper relationship between the billionaire and the Deputy Prime Minister as it does of sordid relationships with escorts. In fact, it's quite likely that the former accusations are the real target here, while the photographs are simply the lightning rod drawing attention to them. If Google is actively seeking to participate in the censorship of political speech in that manner, that's not a good look.

Navalny, for his part, is seeking to use this attempted censorship to his political advantage via the Streisand Effect.

The action against his investigation is “a brazen act of censorship,” Navalny wrote on his website, which also remained accessible on Tuesday. “I urge everyone to spread this video wherever you can.”

And that's already occurred, with millions of views of these videos and pictures already logged and the numbers continuing to climb. Whatever the outcome of the decision to censor YouTube and Instagram entirely or not, it should be clear that American companies ought not help corrupt foreign governments silence their political opponents.

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Posted on Techdirt - 14 February 2018 @ 1:26pm

Anti-Piracy Video Masquerades As Anti-Malware Education And Is Filled With Lies

from the trust-goes-both-ways dept

As some of you may be aware, Safer Internet Day just passed. Started in the EU, the day is supposed to be used to educate the masses on some dangers that are tangentially or directly connected to the internet, such as malware awareness, cyberbullying, or abuses on social media sites. It's also heavily supported by the Industry Trust for IP Awareness, which is a UK entertainment industry group that chiefly looks to "educate" the public on how super-awesome copyright is in every respect and how piracy and copyright infringement are the work of Satan.

In a video titled... and I can't believe I'm going to actually type this... Meet the Malwares, viewers in Australia are "educated" on exactly zero specific malware threats, but they are told that filesharing sites should be avoided completely. And if you're thinking that there are a ton of other parts of the internet that are far riskier, rest assured that the video insists it's all about file sharing sites.

What really caught our eye, however, is the statement that pirate sites are the most used propagation method for malware. “Did you know, the number one way we infect your device is via illegal pirate sites,” an animated piece of malware claims in the video.

Forget about email attachments, spam links, compromised servers, or even network attacks. Pirate sites are the number one spot through which malware spreads. According to the video at least. But where do they get this knowledge?

As far as anyone can tell, the people behind the video just made this up. The Industry Trust for IP Awareness claimed that this was based on a paper from 2014, except nobody can find these figures in the paper either. The closest thing in that paper is the claim that illicit streaming websites for copyrighted content were the number one source for malware as 97% of them contain something malicious. But that claim was based on another unpublished study, and that unpublished paper's actual claim was that out of thirty pirate sites researched "90% contained malware or other potentially unwanted programmes." These unwanted programs include such everyday annoyances as popup ads. In other words, this whole response reads like a grade-schooler's made-up bibliography.

And none of that gets us even close to pirate sites being the number one way that malware spreads. The folks over at Malwarebytes, who know a thing or two on this topic, helpfully chimed in.

“These days, most common infections come from malicious spam campaigns and drive-by exploit attacks,” Adam Kujawa, Director of Malware Intelligence at Malwarebytes informs us.

“Torrent sites are still frequently used by criminals to host malware disguised as something the user wants, like an application, movie, etc. However they are really only a threat to people who use torrent sites regularly and those people have likely learned how to avoid malicious torrents,” he adds.

Kujawa goes on to summarize that the claim in the video about pirate sites is generally inaccurate. Which, you know, lies about malware aren't really a great look from an organization with the stated mission of educating the public on malware. While you may not want to learn how to avoid malware, you should learn not to bother with any nonsense coming from the Industry Trust for IP Awareness.

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Posted on Techdirt - 13 February 2018 @ 7:56pm

The Museum Of Art And Digital Entertainment Calls For Anti-Circumvention Exemptions To Be Extended To Online Game Archives

from the preserve-and-protect dept

Now that we've covered a couple of stories about game companies, notably Blizzard, bullying the fans that run antiquated versions of MMO games on their own servers to shut down, it's as good a time as any to discuss a recent call for the DMCA anti-circumvention exemptions to include the curation of abandoned MMO games. A few weeks back, during the triennial public consultation period in which the U.S. Copyright Office gathers public commentary on potential exemptions to the DMCA's anti-circumvention provisions, a bunch of public comments came in on the topic of abandoned video games. Importantly, the Librarian of Congress already has granted exemptions for the purpose of preserving the art of video games so that libraries and museums can use emulators to revive classic games for the public.

But what do you do if you're looking to preserve a massive multiplayer online game, or even single-player games, that rely on server connections with the company that made those games in order to operate? Those servers don't last forever, obviously. Hundreds of such games have been shut down in recent years, lost forever as the companies behind them no longer support the games or those that play them.

Well, one non-profit in California, The Museum of Art and Digital Entertainment, wants anti-circumvention exemptions for running servers for these games to keep them alive as well.

“Although the Current Exemption does not cover it, preservation of online video games is now critical,” MADE writes in its comment to the Copyright Office. “Online games have become ubiquitous and are only growing in popularity. For example, an estimated fifty-three percent of gamers play multiplayer games at least once a week, and spend, on average, six hours a week playing with others online.”

“Today, however, local multiplayer options are increasingly rare, and many games no longer support LAN connected multiplayer capability,” MADE counters, adding that nowadays even some single-player games require an online connection. “More troubling still to archivists, many video games rely on server connectivity to function in single-player mode and become unplayable when servers shut down.”

Due to that, MADE is asking the Copyright Office (and the Librarian of Congress) to allow libraries and museums exemptions to run their own servers to display these games as well. Frankly, it's difficult to conjure an argument against the request. If games are art, and they are, then they ought to be preserved. The Copyright Office has already agreed with this line of thinking for the category of games that don't require an online connection, so it's difficult to see how it could punt on the issue of online games.

And, yet, we have examples of fan-run servers of abandoned games, or versions of games, getting bullied by companies like Blizzard. These fan-servers are essentially filling the same role that groups like MADE would like to do: preserving old gaming content that has been made otherwise unavailable by companies that have turned down online game servers.

It's enough to make one wonder why a group of fans of a game shouldn't get the same protections afforded to a library or museum, if the end result is nearly identical.

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Posted on Techdirt - 12 February 2018 @ 7:52pm

Confluence Brewing Sues Confluence On 3rd, An Apartment Complex, For Trademark Infringement

from the i'd-like-to-rent-a-beer-please? dept

It's been a minute since we've had to cover some trademark nonsense in the beer industry. In fact, several recent stories have actually represented what might be mistaken for a clapback on aggressive trademark protectionism in the alcohol space. But, like all great things, it just couldn't last. The specific tomfoolery that has brought reality crashing down on us once again comes out of Iowa, where Confluence Brewing has filed a trademark suit against Confluence On 3rd, which is an apartment complex that does not serve or make beer.

Confluence Brewing Company on Friday filed a trademark lawsuit and motion for an injunction in Polk County District Court seeking to stop Confluence on 3rd apartments from using the name "Confluence."

John Martin, president and co-founder of Confluence Brewing, said representatives of the company have tried to have discussions with Roers Companies, the Long Lake, Minnesota-based developer of Confluence on 3rd and several other Des Moines-area properties, but felt that their complaints were "falling on deaf ears."

Those complaints appear to have centered around both companies using the word "confluence" and the potential public confusion that could cause. Which is really dumb. Because the brewery sells beer and the apartment complex rents apartments. A greater deviation in marketplaces I dare say could not be dreamed. And, yet, Confluence Brewing appears to have taken its opponent's refusal to negotiate on these invalid complaints as some sort of personal affront. After some back and forth about whether Confluence On 3rd might add the word "apartments" to the brand, it seems communication ceased. Jeff Koch, a principal at the parent company for Confluence On 3rd, had been a part of these conversations, but communication with him too was rebuffed.

Which isn't to say that Koch won't explain to the media just how ridiculous this all is.

The two companies have distinct names and operate in different business sectors, Koch said in his email to the Register. He said Confluence on 3rd has not experienced any confusion in the marketplace.

"Confluence on 3rd was named solely on the historic relevance the city was founded at the confluence of the Des Moines and Raccoon rivers," Koch said in his email to the Register. "It is unique to Des Moines history and should be celebrated, not solely owned and dictated by one brewing company."

This is essentially the localization of the aspect of trademark law that prevents a single company from locking up language globally. The whole point of trademark law is to prevent customer confusion within a given market, so that one brewer can't pass themselves off as another by having similar names and branding. That just isn't a concern here, given the disparity in the markets in which these two companies play. So, what got us to the point of having Confluence Brewing alleging true concern about public confusion?

Beer coasters, largely.

In April 2017, court documents show, Confluence Brewing called Roers Companies asking them to cease and desist their use of blue drink coasters promoting Confluence on 3rd at Des Moines bars.

"I just think the bar coasters just seem a little bit blatant," Kerndt said. "I mean, they were being distributed at establishments that serve my clients’ beer."

Emails between Kerndt and Koch show Confluence on 3rd had distributed all their coasters by the time of the April call and have not ordered any additional coasters since then.

Which is entirely besides the point. Just because a company puts out the tchotchke of its choice doesn't suddenly put it in a competitive situation with anyone who makes those tchotchkes. If that were the case, the tchotchke market as a whole wouldn't... you know... exist. The only other type of confusion mentioned in the article for Confluence Brewing is that apparently people's Google map skills occasionally send them to the wrong Confluence company for the wrong item. Still, that isn't the type of confusion trademark law is supposed to prevent and it's easily remedied by directing the customer to another address.

I will say that Confluence Brewing comes off as very earnest on the matter, so perhaps the folks there simply aren't aware of the intricacies of trademark law. Its legal team, on the other hand, certainly should be.

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Posted on Techdirt - 12 February 2018 @ 1:31pm

Facebook Takes Down Post Critical Of Indian Film For Copyright Violation, Even Though It Was An All-Text Post

from the copywrong dept

We should all know by now that Facebook's reliability to handle copyright takedown requests is... not great. Like far too many internet platforms these days, the site typically puts its thumbs heavily on the scales such that the everyday user gets far less preference than large purported rights holders. I say "purported" because, of course, many bogus takedown requests get issued all the time. It's one of the reasons that relying on these platforms, when they have shown no willingness to have any sort of spine on copyright matters, is such a mistake.

But few cases are as egregious as that of Leo Saldanha, a well-known environmental activist in India. When I tell you that Saldanha had a Facebook post taken down over a copyright notice, you must certainly be thinking that it had something to do with environmental activism. Nope! Actually, Saldanha wrote an all-text mini-review of an Indian film, Padmaavat, which was taken down after the distributor for the film claimed the post infringed on its copyrights. Here is the entirety of his post that was taken down.

“In my view, #padmaavat is a bore fest. Halfway the movie was coming to an end, I felt. But then woke up to the cruel fact there still was the other half, and it involved the horribly cruel act of mass suicide. There is something horribly wrong about a film, when a man’s voice reasserts, that this gory act was to protect ‘Bharat’s swabhimaan, or something to that effect.”

“The whole movie has one plot: of owning a woman. And all the characters conspire to subordinate women. True, this is a mythological account of times far in the past. But that one statement after the movie emphasises horrendous social mores of a medieval time and contextualises it as relevant to our times. Movies like these aren’t made with innocent intentions. Ranveer Singh is an incredible actor!”

Seriously, that text is the entire post. And I have to say that it's quite tame as far as movie reviews go, not to mention fairly relevant from a movie critique standpoint. This wasn't someone dumping on the movie for fun. Saldanha had a well thought out point, no matter of whether anyone might agree with the content of his argument. Certainly nothing in that is copyright infringement by any measure.

Yet Viacom 18 issued the takedown request and Facebook complied. Not only did it comply, in fact, but when Saldanha pushed back on Facebook trying to figure out what the hell was going on here, the only reply from the site was to warn of a perma-ban for repeated infringement and a recommendation to get Viacom 18's permission to post his review. Saldanha, to put it lightly, was not pleased with this response.

Speaking to TNM, Saldanha says that he is deeply offended by the messages he received from Facebook and the allegation that he had violated anyone’s rights on any social media platform.

“Anyone should be free to express in any form, their views about public matters. This includes the right to agree, disagree and the right to dissent. I also maintain that I have never used threatening language while offering my opinion on any issue that is public, or of any public person. The fact that Facebook pulled down my post is a serious issue. This only shows that Facebook leans towards those with financial muscle. Viacom18 clearly does not want critical views for the movie,” Saldanha says.

There are all sorts of ways this could have happened -- but none of them make either Viacom 18 or Facebook look good. The most immediate theory would be Viacom 18 abusing copyright law to take down a negative review -- and Facebook assisting without a good reason. A more charitable (though still terrible) explanation would chalk it up to (once again) horrible automated systems flagging anything mentioning Padmaavat and falsely assuming it's infringing. And, again, Facebook assisted this without good reason. No matter what it's yet another example in our increasingly long list of cases where copyright is used for censorship.

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Posted on Techdirt - 8 February 2018 @ 3:58pm

Blizzard Still Trying To Take Down WoW Vanilla Fan Servers While Refusing To Offer A Competing Product

from the no-fun-for-you dept

You will hopefully recall a post we did several years ago dealing with Blizzard's decision to shut down a fan-run "vanilla" World of Warcraft server that stripped the game's expansions out and let players play the game as it was originally released in 2004. As is so often the case in these kinds of disputes, we can at once stipulate that Blizzard was within its right to do this while still calling out whether it was the best decision it could make on the matter. The simple fact is that there were other avenues down which the company could travel other than threatening the fan-server into oblivion, such as working out a cheap licensing arrangement to make it official. The whole situation became all the more odd when you consider that Blizzard itself does not offer a competing experience with the fan-server, essentially ignoring what is clearly a desire within the fanbase for that kind of experience that Blizzard could monetize if it wanted. Instead, the fan-server shut itself down under the threat of a trademark lawsuit and Blizzard went on its merry way ignoring these customer desires.

Fast forward to today, some two years later, and it's all happening again. Another fan-operated vanilla server, this one called Light's Hope, is under attack from Blizzard for all the same reasons.

In recent years the project has captured the hearts of tens of thousands of die-hard WoW fans. At the time of writing, the most popular realm has more than 6,000 people playing from all over the world. Blizzard, however, is less excited.

The company has asked the developer platform GitHub to remove the code repository published by Light’s Hope. Blizzard’s notice targets several SQL databases stating that the layout and structure is nearly identical to the early WoW databases.

That, of course, is the entire point of the vanilla server. The very idea is to allow players to experience the roots of the massively popular online game. And it's quite popular, too, with thousands of players playing this vanilla experience. If nothing else, this again should represent free market research and the uncovering of an entirely new and potentially lucrative market for Blizzard. It would be one thing if these takedowns were going on while coupled with statements from the company about its own competing service. But that's not what's happening. The takedowns happen and Blizzard ignores the market demands.

To be clear, again, Blizzard can do this. But, no matter the game of pretend its PR reps try to play, it certainly doesn't have to do this. It could quite easily work something out with Light's Hope to make it official and either monetize it directly or at least recognize that these types of fan projects do nothing but drive more interest and dollars towards the original product.

In the end, Blizzard comes off as anti-consumer and against its own passionate fan base. That's not a good look.

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Posted on Techdirt - 7 February 2018 @ 7:34pm

Moosehead Breweries Cuts And Runs From Trademark Suit Against Hop 'N Moose Brewing

from the a-moosing dept

For the past few years, we have detailed several trademark actions brought by Moosehead Breweries Limited, the iconic Canadian brewery that makes Moosehead beer, against pretty much every other alcohol-related business that dares to use the word "moose" or any moose images. This recent trend has revealed that Moosehead is of the opinion that only it can utilize the notorious animal symbol of both Canada and the northern United States. Without any seeming care for whether actual confusion might exist in the marketplace, these actions by Moosehead have instead smacked of pure protectionism over a common word and any and all images of a common animal.

One of those actions included a suit against Hop 'N Moose Brewing, a small microbrewery out of Vermont. The filing in that case was notable in that it actually alleged detailed examples of trade dress infractions, while the images of the trade dress included in the filing appeared to be fairly distinct. Absent, of course, was any evidence of actual confusion in the marketplace. It appeared for all the world that Moosehead's legal team seemed to take past criticism of its trademark protectionism as a critique of the word and image count in its filings and simply decided to up the volume on both ends. Since late last year, despite having done all of this legal literary work to support the suit, little if anything had been litigated after the initial filing.

And now it seems this whole thing will suddenly go away. Without any real explanation from either party, Moosehead has dropped its suit entirely.

Moosehead Breweries has dropped its trademark infringement lawsuit against Rutland’s only brewpub. The notice of voluntary dismissal, filed earlier this month in federal court, gives no explanation for the Canadian brewery’s abandonment of the action. The dismissal was filed without prejudice, meaning Moosehead is free to file the lawsuit anew if it chooses.

As the article goes on to note, pretty much nobody on either side is offering any explanation for any of this. Moosehead itself, along with its attorneys, are remaining silent on the matter. Hop 'N Moose, for its part, has acknowledged that it has been communicating with Moosehead, but only to reiterate that it doesn't feel any potential for confusion exists. Often times when there is a settlement, either the court or one of the parties mentions its existence, even if the details of the settlement are confidential. That tends to be the case more often in trademark cases compared with copyright cases, as well. Yet here, nobody is talking about a settlement of any kind. Instead, this seems to be Moosehead simply packing its bags and heading back across the border, although we cannot be certain no settlement was reached.

And, while that's a better outcome for a small entity like Hop 'N Moose than a long, drawn out trial, it's worth remembering that it still had the burden of having to deal with even this truncated legal action, all because Moosehead filed a trademark suit that wasn't worth carrying through in the first place. Whatever that means for the exploding craft beer industry, it isn't good for growth and innovation.

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Posted on Techdirt - 7 February 2018 @ 3:33pm

Director Of Thor: Ragnarok Pirated Clips For His Sizzle Reel

from the everyone's-doing-it! dept

With the constant drumbeat of the evils of copyright infringement and internet piracy being issued from those leading the movie industry, you might have been under the impression everyone within the industry held the same beliefs. Between the cries of lost profits, the constant calls for the censorship of websites, and even the requests to roll back safe harbor protections that have helped foster what must be considered a far larger audience for the industry, perhaps you pictured the rank and file of the movie business as white-clad monk-like figures that served as paragons of copyright virtue.

Yet that's often not the case. While many artists, actors, and directors do indeed toe the industry line on matters of piracy, you will occasionally get glimpses of what has to be considered normalcy in how people engage with copyright issues among members of the industry. We should keep in mind our argument that essentially everyone will infringe on intellectual property at some point, often times without knowing or intending it, because engaging in said behavior just seems to make sense. During a radio interview Taiki Waititi did to promote Thor: Ragnarok, which he directed, he admitted to doing it himself.

Speaking with broadcaster Tom Power, Waititi revealed that when putting together his promotional showreel for Thor: Ragnarok, he obtained its source material from illegal sources. Explaining the process used to acquire clips to create his ‘sizzle reel’ (a short video highlighting a director’s vision and tone for a proposed movie), Waititi revealed his less-than-official approach.

“I cut together little clips and shots – I basically illegally torrented and, erm, you know, ripped clips from the Internet,” Waititi said.

“Of a bunch of different things?” Power asked.

“I don’t mind saying that…erm…on the radio,” Waititi added, unconvincingly.

Almost immediately afterwards, Waititi seemed to realize that he was admitting to copyright infringement on a recording and asked for that part of the interview to be cut out, which of course it wasn't.

So what are sizzle reels? When a director pitches a movie to a studio, they will often include a short reel of movie clips that demonstrate what they feel to be their overall vision as a director and tie that in with whatever film is being pitched. Producing a sizzle reel, particularly on short notice, can be a harrowing experience. You have to get the movies from which to pull clips. You have to make sure those movies are in a format easily editable to make the clips. You have to then splice them together in a coherent way to demonstrate your vision and themes for the movie pitch.

Of course, the internet provides an easier avenue for much of that effort, which is why a director like Waititi would naturally go to this massive resource to build his sizzle reel. It's as innocuous a thing as could be. Also, it's definitely copyright infringement.

Now, Waititi almost certainly will face zero repercussions for this confession, but only because he's a protected industry insider with great movies on his resume. But if this were an up and coming director? Or just some kids having fun? It doesn't take much imagination to conjure up images of threat letters demanding settlements, or even protracted legal proceedings over this kind of "piracy."

Whatever this discrepancy says about how copyright is selectively enforced, it should be obvious that nothing in this is promoting the progress of the arts.

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Posted on Techdirt - 6 February 2018 @ 7:27pm

BrewDog Beats Back Trademark Action From The Elvis Presley Estate

from the the-juice-is-loose dept

In the middle of summer last year, we discussed a somewhat strange trademark fight between BrewDog, a Scottish Brewery that has been featured in our pages for less than stellar reasons, and the Elvis Presley Estate. At issue was BrewDog's attempt to trademark the name of one of its beers, a grapefruit IPA called "Elvis Juice." With no other explanation beyond essentially claiming that any use of Elvis everywhere will only be associated in the public's mind as being affiliated by the 1950s rock legend, the Estate opposed the trademark application. Initially, the UK Intellectual Property Office sided with the Estate, despite the owners of BrewDog both pointing out that they were simply using a common first name and that they were actually taking the legal course of changing their first names to Elvis to prove their point. Not to mention that the trade dress for the beer has absolutely nothing to do with Elvis Presley. We wondered, and hoped, at the time if BrewDog would appeal the decision.

Well, it did, and it has won, which means Elvis Juice is free to exist and the order that BrewDog pay the Elvis Estate costs for its opposition be vacated.

Now, after a three-year battle the firm has overturned a ruling banning them from using the name and and order to pay Presley's estate £1,500 in costs has been scrapped. The ruling means BrewDog will no longer have to change the name or apply to the Elvis estate for official permission to use it.

It's the right end-state for all of this, but you have to wonder why it took an appeal process to get here. Again, you can see the trade dress for the beer in our original post and you will see that there is absolutely nothing in the way of a call-back to Elvis Presley. In other words, the opposition from the Estate rested solely on the claim that virtually any use of a common first name would be associated with the long-dead Elvis Presley. Arguably, Presley may not even by the first singer to leap to mind in the European market, where Elvis Costello is still, you know, alive. This whole thing smacked of pure audacity on the part of the Estate.

But let's remember that BrewDog has had to deal with this mess for the better part of a year. To those that would claim that trademark bullying isn't all that big a problem, tell that to the two Elvises (Elvisi?) that own BrewDog.

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Posted on Techdirt - 5 February 2018 @ 7:44pm

Two Years Later, Bell's Brewery Finally Fails To Bully A Tiny Brewery Out Of Its Legitimate Trademark

from the it-tolls-for-thee dept

Nearly three years ago, Bell's Brewery, whose products I used to buy greedily, decided to oppose a trademark for Innovation Brewing, a tiny operation out of North Carolina. The reasons for the opposition are truly difficult to comprehend. First, Bell's stated that it uses the slogan "Bottling innovation since 1985" on some merchandise. This was only barely true. The slogan does appear on some bumper stickers that Bell sells and that's pretty much it. It appears nowhere in any of the brewery's beer labels or packaging. Also, Bell's never registered the slogan as a trademark. Bell's also says it uses the slogan "Inspired brewing" and argues that Innovation's name could create confusion in the marketplace because it's somehow similar to that slogan.

This is a good lesson in why trademark bullying of this nature is a pox on any industry derived largely of small players, because it's only in the past weeks that the Trademark Trials and Appeals Board in Virginia has ruled essentially that Bell's is full of crap.

The federal Trademark Trials and Appeals Board in Virginia says there is little chance of confusion by consumers and dismissed Bell’s action on Dec. 20.

Bell’s says it is moving on. “We respect the Trademark Office’s decision and look forward to doing business as usual,” the brewery said in an emailed statement to Xpress.

That's simply not good enough. Innovation is roughly one-sixtieth the size of Bell's, producing 500 barrels a year, and representing a zero threat to the much larger company. And, yet, for three years Innovation has been tied up in this federal action trying to simply register the name of the brand upon which it built its small business. Also, and I cannot stress this enough, the claims that Bell's was making were plainly absurd. Those claims included stating that the words "innovation" and "inspired" had the same or similar meanings to the degree the public would be confused. They don't. It attempted to block a trademark over a slogan it barely uses and never registered. There was never any reason to do any of this.

Yet, we have three years of bullying action. At the end of that bullying, Bell's gets to waltz away and say it is "moving on", with the legal costs representing a decimal point on its ledger, whereas Innovation has no such war chest and was almost certainly impeded in its business having to deal with all of this. If that isn't the kind of thing the legal system should be better designed to handle, I cannot imagine what would be.

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Posted on Techdirt - 5 February 2018 @ 11:53am

Study Suggests Shutting Down Filesharing Sites Would Hurt Music Industry, New Artists

from the you-don't-say dept

The evolution of the music industry's response to the fact that copyright infringement exists on the internet has been both plodding and frustrating. The industry, which has gone through stages including a focus on high-profile and punitive lawsuits against individual "pirates", its own flavors of copyright trolling, and misguided attempts to "educate" the masses as to why their natural inclinations are the worst behavior ever, have since settled into a mantra that site-blocking censorship of the internet is the only real way to keep the music industry profitable. All of this stems from a myopic view on piracy held by the industry that it is always bad for every artist any time a music file is downloaded for free as opposed to purchased off of iTunes or wherever. We have argued for years that this view is plainly wrong and far too simplistic, and that there is actually plenty of evidence that, for a large portion of the music industry, piracy may actually be a good thing.

Well, there has been an update to a study first publicized as a work in progress several years ago run by the Information Economics and Policy Journal out of Queen's University. Based on that study, it looks like attempts to shut down filesharing sites would not just be ineffectual, but disastrous for both the music industry as a whole and especially new and smaller-ticket artists. The most popular artists, on the other hand, tend to be more hurt by piracy than helped. That isn't to be ignored, but we must keep in mind that the purpose of copyright law is to get more art created for the benefit of the public and it seems obvious that the public most benefits from a larger successful music ecosystem as opposed to simply getting more albums from the largest audiences.

The methodology in the study isn't small peanuts, either. It considered 250,000 albums across five million downloads and looked to match up the pirating of those works and what effect that piracy had in the market for that music.

“I now find that top artists are harmed and mid-tier artists may be helped in both markets, but that these effects are larger for digital sales,” Lee tells TorrentFreak. “This is consistent with the idea that people are more willing to switch between digital piracy and digital sales than between digital piracy and physical CDs.”

The findings lead to the conclusion that there is no ideal ‘one-size-fits-all’ response to piracy. In fact, some unauthorized sharing may be a good thing.

This is in line with observations from musicians themselves over the past years. Several top artists have admitted the positive effects of piracy, including Ed Sheeran, who recently said that he owes his career to it.

None of this is to argue that piracy is always a net benefit, obviously. Such an argument would be the counterargument to the music industry's description of piracy as always bad, all the time, for everyone. And it would be equally fallacious. What this study chiefly points out is exactly what the conclusion above states: there is no one-size fits all truth on the effect of piracy for artists. It helps some, it hurts others.

While we shouldn't take the negative impact on artists it may hurt lightly, remember that this is all framed by a music industry regularly calling for the blocking of filesharing sites. That really is a one size fits all "solution" to piracy and, based on this study, it would hurt many, many musical acts.

According to the researcher, the music industry should realize that shutting down pirate sites may not always be the best option. On the contrary, file-sharing sites may be useful as promotional platforms in some cases.

“Following above, a policy of total shutdown of private file sharing networks seems excessively costly (compared with their relatively small impact on sales) and unwise (as a one-size-fits-all policy). It would be better to make legal consumption more convenient, reducing the demand for piracy as an alternative to purchasing,” Lee tells us. “It would also be smart to experiment with releasing music onto piracy networks themselves, especially for up-and-coming artists, similar to the free promotion afforded by commercial radio.”

The pain here is in how obvious it all is. We've been saying exactly this for years, except the proposed solutions from the music industry have only grown more drastic in that same time. Flat censorship is something of a nuclear option and it's being used against sites that actually help some percentage of artists.

How in the world is that the best plan for a thriving music ecosystem?

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Posted on Techdirt - 2 February 2018 @ 3:32pm

Come Witness The Commentators That Help The NFL Fool The Public About Its 'Super Bowl' Trademark Rights

from the shame-on-you dept

The Super Bowl is here and this Sunday many of us will bear witness to the spectacle that is million dollar advertising spots mashed together over four hours with a little bit of football thrown in for intermissions. As we've discussed before, this orgy of revenue for the NFL is, in some part, propagated by the NFL's never ending lies about just how much protection the trademark it holds on the term "Super Bowl" provides. While the league obviously does have some rights due to the trademark, it often enjoys playing make believe that its rights extend to essential control over the phrase on all mediums and by all persons for all commercial or private interests. This, of course, is not true, and yet a good percentage of the public believes these lies.

Why? The NFL, pantheon of sports power though it may be, is not so strong as to be able to single handedly confuse millions of people into thinking they can't talk about a real life event whenever they want. No, the NFL has been helped along in this by members of the media who repeat these lies, often in very subtle ways. Ron Coleman of the Likelihood Of Confusion site has a nice write up publicly shaming a number of these media members, including Lexology's Mitchell Stabbe.

At Lexology, Mitchell Stabbe writes a post about why the SUPER BOWL® is the specialest trademark ever, laying out a thorough analysis of “activities that create a significant risk of an objection by the NFL.” He soberly notes that while the NFL failed in its effort to register THE BIG GAME, “The NFL also has federal trademark protection for 'Super Sunday', 'Gameday', 'Back to Football', '1st and GOAL' and over a hundred other marks.”

Except that Stabbe's analysis of how to avoid the ire of the NFL includes such advice as suggesting that businesses not wish teams or players good luck, for newspapers not to have any special sections covering the Super Bowl be sponsored by any companies, and for restaurants and bars not to use the term in any watch parties they have for the game. In case it isn't clear, none of those are matters of actual trademark infringement necessarily. Stabbe doesn't bother to point out that there's no likelihood of confusion in the marketplace here, and that basic nominative fair use (i.e., naming the thing you're talking about) is not going to dilute a trademark either. These types of advice columns, seemingly from experts on the subject, undermine the public's awareness of its own rights when it comes to using language.

Another example has media members acting as though there is special space carved out just for them, or certain members of the public, to use the phrase "Super Bowl."

In a post at a website called “SB Nation” owned by Vox Media, Jeanna Thomas noted a year ago, quite correctly, that “The NFL keeps firm control over its trademark on the words ‘Super Bowl,’ and that control makes the league a whole lot of money.” Unfortunately, the next sentence starts, “The Super Bowl (we can say it, because here at SB Nation we write about sports,” which would be bad enough without being topped by the double-barreled whopper to the effect that “Private citizens are fine to use the phrase without consequence, as long as there’s no financial consideration involved.”

It should be clear that all of these "we're barely safe to use this term and avoid the NFL's team of lawyers if we follow these very strict rules" creates the impression that the majority of the rights to use the term belong to the NFL, with a tiny bit leftover for the public. This is not how trademark law works. Trademark rights are limited in scope and infringement is reserved for particular circumstances. Just because the NFL pretends otherwise does not make it so, except it can become effectively so with people who should know better repeating these lies.

So have fun watching the Super Bowl. I can say that because I'm a blogger, I submitted six forms of identification and a urine sample to Roger Goodell's office (unsolicited, by the way), and I have created a totem to pray to my lord and savior Tom Brady, made out of a combination of salami, sharp cheddar cheese wedges, and pickle slices. If I hadn't... well, let's just say I'm happy to still be alive.

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