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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.




Posted on Techdirt - 25 July 2017 @ 6:31pm

Winnipeg Man Has Vanity Plate Referencing Star Trek Recalled Over Complaints Of How Racist It Is

from the resistance-is-futile dept

Here in North America, because 2016 just had to become the most infuriatingly stupid and polarizing year in the history of the multiverse, far too much oxygen was spent on debates over both how much racism was okay on one side and exactly what qualified as racist on the other. It's one of those frustrating contests with nobody to root for, as half of the population proclaimed that racism was dead and everyone was too stuck up about it while the other side managed to find racism everywhere, introducing into the popular lexicon terms like "privilege" that mostly make me want to put my head in a vice and get to rotating that lever.

Still, this isn't a debate that should be totally ignored. After all, at its heart is the matter of free speech, not just as a legal framework but also as an ideal that the West tends to claim to hold in high regard. Strangely, one of the beacons of this debate shall now be on the subject of vanity license plates, with a heavy dash of nerd culture thrown in just to make it extra fun. For this story, we go to Winnipeg, where a Star Trek fan received the following vanity plate for his car.

The plate, owned by the unfortunately named Nick Troller, will be instantly recognizable to Star Trek fans, particularly those of us that go back to The Next Generation. The Borg was an alien race that assimilated other races into its hive-mind whatsit and traveled around in big grey cubes, because, you know, aliens. They often communicated such witticisms as "Resistance is futile" and "You will be assimilated." I imagine to those that are not fans of the series, the vanity plate would probably register as a curiosity. For some in Canada, apparently, it was a racist mantra.

If you've existed at all in the modern day political climate you'll understand how some people who are—rightfully—sensitive to the rise of normalized racism, saw Troller's plate as problematic. Seeing the plate as a problem some people complained and Manitoba Public Insurance (MPI) told Troller he had to get rid of it. Troller has since relented to the pressure and gotten rid of the plate for one that says "COLECTV"—the plate still has the bracket sporting the "resistance is futile" saying.

Now, in this hyper-partisan time where everyone is either a racist or an SJW and we all hate each other with the burning passion of eight pissed off suns, it's no wonder that Troller's license plate has become an issue and that people on both sides have seized upon it. The Justice Centre for Constitutional Freedoms, which is known for taking people to court for denying anti-abortion activists a voice and other free speech issues, now—after advocating for Troller initially—may be taking the case to court.

Ok, let's just get this out of the way. The license plate isn't remotely racist and anyone apologizing for some people freaking out and complaining of its racism should stop. Stop and never do that again. For those of us that care about combating actual racism, these hypersensitive offense-magnets are getting in our way and impeding progress, acting as an example for some why real racism is dead. It's lame and it isn't to be apologized away.

But it's also worth noting that something like a vanity plate is plainly a form of speech and having a government strip a citizen of that speech simply because other people are wrong about that speech is flatly insane. Particularly when you have to work really, really hard to convince yourself that the license plate above is racist, and when the acceptable alternative -- "COLECTV" -- I could easily argue is racist as well were I so inclined. Collecting? Collecting whom, you racist! See?

We can all certainly have an argument over what the current levels of racism are and how they impact our culture or not, but it should be plain that this was a clear case of a government overstepping its bounds.

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Posted on Techdirt - 25 July 2017 @ 11:56am

Terrible Ruling Allows Untied To Keep Its Domain But Not Its Soul

from the pointless-generosity dept

Let's jump back in the wayback machine for a moment and discuss Untied, your primary source for customer and employee complaints about United Airlines. When we last wrote about the site in 2012, we first mentioned that Untied.com has been a thing since 1997 before detailing the lawsuit United Airlines filed in Canada after it found that Untied.com had redesigned its parody site to look more like United.com.

Untied, if you are not aware, is a site that started with a single person's complaint about United Airlines customer service before morphing into an aggregator of such complaints from both customers and internal airline staff and former staff. If you want a bible to be written on what United has done wrong in the realm of customer service, you need not worry because Untied.com is that bible. Had this suit been filed in America, it would face a mountain of caselaw suggesting that so-called "sucks sites" are well within the boundaries of protected nominative fair use. It's worth mentioning that Untied doesn't actively attempt to mislead visitors to the site into thinking it's affiliated with the airline. In fact, visitors are shown a popup upon visiting that alerts them to Untied's status as a parody site. Even a cursory glance at the site's contents would confirm that status, as the entire site is dedicated to taking a metaphorical dump on United Airlines' reputation.

Despite the site having existed for so long, and despite the fact that the Streisand Effect exists, United Airlines filed its lawsuit, bringing all manner of attention to Untied that it otherwise would not have had, even as the airline is and has been maligned in nearly every corner of the internet for its laughable attempts at customer service. In its filing, United Airlines insisted that Untied had infringed its trademark rights and copyright rights with the site. It requested an injunction against the site before suggesting that just to make sure the injunction was clear, maybe the court ought to just hand the site over to United Airlines to boot.

"If the Court finds in favour of United Airlines and determines that an injunction should issue, the injunction needs to be clearly understood by the parties, and in particular the Defendant. As such, the Court may need to consider ordering the Defendant to transfer ownership of the domain name and other internet presences to ensure the injunction is clear and will be respected."

Well, the court has ruled on the injunction. The good news is that the court declined to hand over the Untied.com domain to the airline. The bad news is that court does rule that the site is infringing both United's copyright and trademark rights and instead said Untied can only keep its name if it ceases to be Untied at all.

The Plaintiff is entitled to an injunction restraining the Defendant’s use of the United Marks and the copyrighted works. The Court retains jurisdiction over this matter to provide effective relief against the Defendant. The Defendant may retain the use of the domain name www.untied.com – however, this must not be in association with the same services as provided by the Plaintiff.

As the folks who run Untied explain, the entire argument that United Airlines made in this action is that it too provides consumer feedback and complaint services for its own business, which is why it declared the public would be confused by the site. Effectively, this ruling allows Untied to keep its domain, but only if it ceases to be Untied.

Keeping in mind the position argued by United, that one of its "services" is dealing with passenger complaints, this would mean that the injunction would prevent Untied.com from existing as a site hosting passenger complaints against United. I feel that I have no choice but to bring this decision to the Federal Court of Appeal. Even if the wheels of justice are stacked against me as a self-represented litigant, defending myself against a massive corporation with virtually unlimited resources, I don't want to throw in the towel in defeat.

It's nice to see someone want to fight this out, but the focus here also needs to be on what an absolutely atrocious ruling this is from the court. Parody is to be protected on matters of copyright, whereas trademark law is focused on real or potential customer confusion within the marketplace. Again, this suit was filed in Canada, so the exact American standard for fair use doesn't apply, but no serious examination of the Untied.com website would lead to the conclusion that confusion was any issue, only strengthening the stance that the parody status of the site ought to protect it from the copyright claim. To, in the face of all that, first rule otherwise and then make this meaningless concession only adds insult to injury. For United to spend half a decade doing battle with a site that echoes many others' disdain for United's customer service in the name of trying to censor that site makes zero sense from a purely business perspective.

Perhaps, rather than spending half a decade fighting a website about customer service complaints, United Airlines could have spent that time and money providing better customer service and not dragging paying passengers off their airplanes.

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Posted on Techdirt - 24 July 2017 @ 3:41pm

Alex Mauer Gets Another Game Taken Down From Steam Via DMCA As She Sends Imagos' Lawyer Death Threats

from the whoo-boy dept

Last month, we discussed a strange spate of DMCA notices going out from Alex Mauer, a video game music composer. Through her DMCA blitz, she managed to get a game removed from Steam, as well as getting several DMCA strikes against several YouTubers that had covered that game, all apparently as a result of a contract dispute she had with Imagos Softworks and her general inability to understand contractual language and copyright law. The tone of that post was justifiably critical, but some are now concerned that there is a well-being issue at hand. For starters, Mauer has now targeted a second game via DMCA takedown and has managed to get Steam to remove the game from its listings.

A copyright claim by a composer with a tendency to attract legal drama has led Steam to remove the game River City Ransom: Underground. The developers are disputing the claim and say they expect the game to be back on Steam at some point in the future.

On Friday, July 14th, Steam removed River City Ransom: Underground due to a Digital Millennium Copyright Act (DMCA) claim filed by composer Alex Mauer. In the claim, Mauer said that music she produced for the game was being used without her permission.

Mauer goes on to note that she doesn't have any documentation of her arrangement with Conatus Creative, developers of the game, but that this actually strengthens her claim, reasoning that if her music appears in the game and there is no written permission, it's copyright infringement. That seemingly sensical stance is rebutted, however, by Conatus, who does claim to have documentation proving its side of the argument.

Let me make it absolutely clear – Alex Mauer’s claim that the game violates her copyright is false. She is a co-creator of the music, with Dino Lionetti and Rich Vreeland. Our written license agreement is with Rich, who subcontracted Alex and Dino. When Rich offered to pay Alex an equal share of the music fee for her contribution to the game soundtrack, she emailed back: “oh that's awesome man i'm all for it thanks!” Rich has shown us the documentation that Alex was paid in full.

Our lawyers advise us that there is no legal basis for Alex’s DMCA take-down claims. That’s undeniable by anyone except Alex. But being legally right is only half the story – as a practical matter, the costs of legal action would put console development plans on hold, perhaps indefinitely. We don’t have any interest in spending our time and our energy dealing with this matter further.

So, we’re swapping out the soundtrack. When it’s completed, we hope that it will delight you, and we hope that you keep taking a chance on independent games, on Kickstarter projects, and on all labors of love. They’re worth it.

If all of that is true, and only one side of this fight is claiming to have documented evidence of their position, you can once again see how reckless abuse of the DMCA system can be undertaken by a party that is blatantly in the wrong as a matter of copyright law, while at the same time forcing their targets into unwanted actions due to the costs of the legal action. This, it goes without saying, cannot be what copyright is supposed to be for. If someone can falsely file DMCA notices with this kind of ignorant alacrity, where the most charitable reading of the situation is that Mauer is flatly confused about copyright and contract law, and where the more realistic reading is that she is running a DMCA extortion program, and there are no serious consequences for that abuse, then the DMCA system is plainly broken.

But there are also more serious accusations flying around as part of this, including the legal staff for Imagos, Mauer's initial DMCA target, being on the receiving end of death threats from her.

After the publication of this story, several people pointed us to a message from Imagos Softworks’ lawyer, Leonard French, claiming that Mauer had sent him death threats. We reached out to Mauer about this and she confirmed that it was true. She said that she had been receiving her own set of threats in the wake of claims by French and other YouTubers, which she reported to the police. “The police told me it was ok for these people to make death threats to me because of freedom of speech,” she said in a private Twitter message. “So my immediate response was to issue death threats to the people who started the defamation crusade against me.”

First, making death threats is a crime, if they are truly serious death threats. I doubt a law enforcement officer told her they are simply "ok because of freedom of speech." And to then take that as a reason to send more death threats in reply is petulant at best.

Regardless, it should go without saying that through punishment or otherwise, Mauer's DMCA abuse needs to stop.

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Posted on Techdirt - 21 July 2017 @ 3:33pm

MLB Mulls Over Opposing Trademark For New Overwatch League Logo

from the swing-and-a-miss dept

It's no secret that Major League Baseball has proven themselves to be happy bullies regarding its trademarks. Between thinking it owns the letter 'W', forgetting that fair use exists, and its decision to bully amateur baseball leagues, the legal staff for MLB has shown that they can produce some really head-scratching moments.

Which brings us to the present, in which Major League Baseball has asked for an extension to decide if it wants to oppose the new logo for Overwatch League, the eSports league dedicated to playing -- you guessed it -- Overwatch.

As noted in a post on the website of law firm Morrison / Lee, the Overwatch League’s logo was approved for a trademark on March 28. Under the standard practice of the U.S. Patent and Trademark Office, this meant that any other parties with trademarks of their own had one month to respond to the logo—either to oppose it outright or to request more time to be able to oppose—before the logo’s trademark would actually be registered. Just one day before the end of that 30-day window, MLB filed for a 90-day extension to investigate the likeness of the OverwatchLeague’s logo to its own and potentially oppose it. Their request was considered valid and they were granted the extension immediately.

The extension expires in mere days, so we're all going to find out very soon if MLB thinks it should oppose the trademark for the following logo, helpfully placed next to the MLB logo so you can decide for yourself how confusing any of this is.

So, let's just get the obvious out of the way: these logos look nothing alike and will not cause any confusion. Period. Other than having a white outline of a "player" of each sport separating two colors and some words on the bottom, there's nothing even similar here. The colors are different, the outlines are different, the names of the leagues are both different and specifically descriptive. Confusion is simply not going to be a thing in this case.

But let's say you're not convinced. Fine. Please tell me if the following logo also confuses you.

Of course it doesn't. The NBA uses a logo with the same style and yet MLB is not at their throats over it. That's because this logo style for sports leagues is fairly standard and there hasn't been issues with confusion before.

Perhaps as MLB's legal staff considers whether to oppose Overwatch League's logo, they'll happen to come across this post. If they do, I have but one bit of advice: don't.

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Posted on Techdirt - 21 July 2017 @ 10:47am

Olive Garden Asks Olive Garden Reviewer Not To Refer To Olive Garden Due To Trademarks

from the penne-for-your-thoughts? dept

At some point, even the dimmest of lawyers will understand that parody and fair use are not infringement. There may be all sorts of reasons why big companies send dubious cease-and-desist letters over protected speech. Sometimes it's because lawyers are misinformed. Sometimes it's to silence criticism.

But in an odd and all around hilarious exchange between the company that owns the Olive Garden chain of restaurants and the owner of a website that reviews Olive Garden dishes, I can't think of a single reason why a sane lawyer would want to fire off the following letter to allofgarden.com.

To Whom It May Concern:

As you are likely aware, Darden is a full-service restaurant company, and owns and operates over 1,500 restaurants through subsidiaries under the Olive Garden®, LongHorn Steakhouse®, The Capital Grille®, Yard House®, Seasons 52®, Bahama Breeze®, and Eddie V's Prime Seafood® brands and has a portfolio of over 650 trademarks in over 70 countries related to the same (collectively "Trademarks”.)

In connection with Darden Corporation’s proprietary rights over its famous trademark(s) we are notifying you of the following:

Darden Corporation has recently learned that the trademark Olive Garden appears as a metatag, keyword, visible or hidden text on the web site(s) located at the below listed URL(s) without having obtained prior written authorization from Darden Corporation. This practice infringes upon the exclusive intellectual property rights of Darden Corporation.


As a trademark owner, Darden Corporation is obligated to enforce its rights by taking action to ensure that others do not use its trademarks without permission. Unauthorized use of the trademark(s) could create a likelihood of confusion with Darden Corporation’s trademark as to the source, sponsorship, affiliation, or endorsement of your web site(s), online location(s), products or services.

In light of the above, we request that you respond to this e-mail within ten (10) days, informing us that you have removed all metatags, keywords, visible or hidden texts including trademark(s) presently appearing on the above-cited website(s) and any other website(s), or draw this issue to the attention of the appropriate person(s).

Thank you in advance for your anticipated cooperation in this matter.


Darden Corporation

There's much to unpack there. First, claiming trademark infringement for use of marks in metatags and simple text within a website is a highly dubious practice. But when even the most cursory glance at allofgarden.com makes it clear that it's a site dedicated to reviewing Olive Garden, it should be immediately obvious that even the most direct reference to the chain would be squarely covered by fair use. Even the name of the site, something of a homophone of the Olive Garden name, would be covered as parody, if not as part of the site's status as a review site. Even more strangely, it's not as though this is one of those so-called "sucks sites" dedicated to simply slamming Olive Garden at every turn. Some reviews, such as this one, are purely positive, devoid of snark at all.

But if Malone is a talented reviewer of chain-based "Italian" food, he's a savant in responding to frivolous legal threats, as he has happily posted his response on his website for all to see.

Mr. Forcements -- may I call you Branden? Since this an asynchronous mode of communication, I'm going to assume you are magnanimously acquiescing, and I will refer to you as Branden forthwith -- I received your email yesterday.

I am not aware of any law against reviewing food and describing it using the name of the company from which it was procured. Some might even call it Nominative Fair Use. I have helpfully included a link to Wikipedia™, The Free Encyclopedia™, for more information on this concept, in case you are new. Just click on the blue words to access the HyperLink™, and you will be transported there in great haste.

With that in mind, can you be more specific about what you would like me to do? If you want me to remove references to the Olive Garden from my blog, which, I remind you, solely consists of references to Olive Garden, I'm afraid I must decline.

If you are asking me to simply add TradeMark® Symbols™ I must also decline, as I do not know the alt keycode for writing them.

Perhaps you are asking me to take down my blog entirely. In doing so, Darden Corporation would commit its largest crime against humanity since they started charging extra for toppings. Seriously, $2.99 for two lousy meatballs? And you're saying I ripped you off?

Please respond within nine (9) days, in limerick form.

Wishing the whole Forcements family a pleasant day,

Vincent "Vino" Malone
Olive Garden Connoisseur
Age 29 and a Half

Every part of this response is pure gold, from the intentional misreading of the emailer's name to the refusal to comply with every request and link with the reasons why. Malone is being a pleasant pain in the ass in this response, yes, but it's funny. It's also now public, thanks to Malone's posting of it. And, most importantly, the request from Olive Garden is a silly one when viewed with an eye towards the law.

Still, I have to admit I'm slightly hoping that Branden Forcements replies in limerick form as requested, just to see what they come up with. If Olive Garden wants to get on the right side of this thing quickly, that limerick will be in the form of an apology.

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Posted on Techdirt - 20 July 2017 @ 1:39pm

Giganews Sues Perfect 10 For $20 Million For Trying To Play 'Hide The Assets' After Jury Award

from the perfect-20 dept

If you're not familiar with Perfect 10 by now, it is a company that billed itself as a smutty porn magazine that was actually mostly in the far more immoral business of copyright trolling. Rather than peddling skin, Perfect 10 mostly peddled laughably frivolous copyright lawsuits against roughly everyone, managing in this process to suffer legal losses to Google, CCBill, Amazon, and Visa among others. One of those others was Usenet provider Giganews, which won big in its court battle with Perfect 10 to the tune of the latter being ordered to pay over $5 million in attorney's fees to the former. Perfect 10 immediately cried poor at that point, stating it didn't have the money to cover the award, leading the court to put its assets in receivership. At the time, Mike wrote:

In the most recent Perfect 10 case, we noted that Perfect 10 lost big time earlier this year. It had sued Usenet provider Giganews, but the court found that Perfect 10's legal arguments made no sense at all, and sided completely with Giganews. Most importantly, the court upheld the multimillion fee award that the court had dumped on Perfect 10 for filing such a bogus lawsuit. It turns out that Perfect 10 doesn't seem to have that kind of money, so all of its assets are now controlled by a court-appointed receiver.

Those assets were supposed to be sold off in order to pay the court ordered award to Giganews. According to a new lawsuit filed by Giganews against Perfect 10 not a single cent has been paid, with the porn company instead choosing to play a silly game of hide-the-assets in order to avoid having them sold off.

The claims center around an alleged conspiracy in which Perfect 10 transferred its funds and assets to Zada.

“As of now (over two years since the judgment), Perfect 10 has not voluntarily paid any amount of the judgment,” the complaint begins. “Instead, Perfect 10, through the unlawful acts of Zada and in conspiracy with him, has intentionally avoided satisfaction of the judgment through a series of fraudulent transfers of Perfect 10’s corporate assets to Zada’s personal possession.”

Norman Zada would be the owner of Perfect 10. The suit seeks $20 million for fraud and punitive damages, detailing how Zada made a habit since 2014, when the lawsuits including that against Giganews began to clearly go south for Perfect 10, of selling Perfect 10 physical assets for below-market sums of money and transferring company cash into his personal bank accounts. We're talking about millions of dollars in cash and assets moving around, as a court order to pay Giganews loomed over it all. This, to be as clear as possible, is not the sort of thing that the court looks favorably upon.

Giganews says that Perfect 10 transferred at least $1.75m in cash to Zada. Then, within weeks of the court ordering Perfect 10 to pay $5.6m in attorneys fees and costs, Giganews says that Zada “fraudulently transferred substantially all of Perfect 10’s physical assets” to himself for an amount that did not represent their true value. Those assets included a car, furniture, and computer servers.

Zada, for his part, has the following defense for himself on the record.

When Zada was questioned why the transfers took place, he admitted that “it would have been totally disruptive to have those [assets] seized” in satisfaction of the judgment. Indeed, the complaint alleges that the assets never moved physical location.

That's a fairly clear admission for defrauding the court with regard to its order to pay Giganews. Giganews is asking for the $1.75 million in cash that had been transferred and interest beginning from March of 2015. The fangs are clearly out, but one can hardly blame Giganews, which had to defend itself against what was clearly a frivolous lawsuit filed on behalf of a company that can't seem to figure out how to look anything other than shady in the extreme. To that end, Giganews is asking for another $20 million in punitive and exemplary damages. Here's hoping they get it.

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Posted on Techdirt - 19 July 2017 @ 1:28pm

Moonton Responds To Copyright Infringement Suit From Riot Games By Threatening The Press With Lawsuits

from the great-strategy,-yo dept

While we often talk about oversteps regarding copyright protectionism and lawsuits in these here pages, it's not as though there aren't understandable disputes that exist. Likewise, while we often detail bad actions by aggressors on copyright issues, it's not as though those on the defending side of that coin are always virtuous in the way they handle the dispute. The issue of game and mobile application cloning serves as a good ecosystem to show plenty of examples of both, with the latest dust-up between Riot Games and Shanghai Moonton Technology offering a specific look at how a party on the defense from a copyright claim can get everything wrong.

First, some background. Riot Games recently filed a lawsuit against Moonton for copyright infringement over three Moonton games: Mobile Legends 5V5 MOBA, Mobile Legends: Bang Bang, and Magic Rush: Heroes. A cursory look at the evidence Riot Games offered up in the filing sure makes it look like Moonton was simply cloning League of Legends, from title screen to in-game design.

And there's a lot more images you can compare in the link. The point is that nobody is going to look at this lawsuit and think Riot Games is crazy for filing it. There is enough cloning going on here to make even the most sympathetic pause. By now you're probably wondering why this post is appearing on Techdirt at all, as we don't make a habit of posting about seemingly legitimate intellectual property lawsuits.

Well, you're reading this because we certainly do write posts about companies that attempt to lash out at the press and threaten them with lawsuits for covering them critically. And that's exactly what Moonton decided to do in the face of the lawsuit.

In case you can't see the embed, that reads:

Official Statement: Recently some media have published negative and unreal reports against Mobile Legends. Here is the statement of Moonton.

Mobile Legends is a MOBA game that is developed by Moonton independently, and its copyright has already been registered and protected in multiple countries all over the world. Moonton has independent intellectual property rights.

Mobile Legends and all the users will not be affected by these unreal reports and we will keep providing the best gameplay experience to players all over the world.

Meanwhile, for some media and competitors who have spread the unreal information and rumors against us, we reserve the right to protect ourselves and pursue legal actions.

Vague threats against the press for reporting on the lawsuit is simply not a good look. It also serves to put this into Streisand Effect territory, with much more coverage on the lawsuit due to Moonton's response than would otherwise have existed. References to "unreal information" and "rumors" seem particularly silly, given that there is a very real and concrete lawsuit currently filed against the company, one which the press is certainly going to report on, whether Moonton likes it or not.

So, feel free to debate the validity of Riot's lawsuit all you want, but this is a terrible response from Moonton.

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Posted on Techdirt - 18 July 2017 @ 6:41pm

BrewDog's Trademark Application For 'Elvis Juice' Brew Blocked By The Elvis Presley Estate

from the ain't-nothin'-but-a-brewdog dept

One point I fear doesn't get made enough when it comes to trademark law is that trademarks ought to be both unique and specific in order to fulfill the law's purpose of keeping the public from being confused as to the origins of goods and services. There's a level of nuance severely lacking in the way trademarks are both granted and enforced such that the law is used far less for the benefit of the public than it is a revenue generator for those who would lock up common names and words. A perfect example of this would be the trademark application for "Elvis Juice" by the brewery BrewDog being blocked by the Elvis Presley Estate.

Now, the last time we wrote about BrewDog, it was having its own issues with trademark enforcement. A pub in Birmingham had received a notice from the brewery's lawyers that it's planned name, The Lone Wolf, infringed on a spirit of the same name created by BrewDog. After the public backlash that ensued, BrewDog quite quickly backed off, both allowing the pub to keep its name while also publicly promising to leash the lawyers and only use them when truly warranted. This time, the shoe is on the other foot, with the Elvis Presley Estate blocking BrewDog's trademark application for "Elvis Juice", claiming that the public would associate the use of that somewhat common first name with the long-dead singer. The hearing officer for the UK Intellectual Property Office somehow agreed with this line of reasoning.

Last month the UK Intellectual Property Office found in EPE’s favour, with hearing officer Oliver Morris saying that “the average consumer will assume that the brand Elvis Juice is from the same or economically linked source as the brand Elvis”.

Noting that “the opponent has been successful”, Mr Morris refused to register the marks and ordered BrewDog to pay EPE £1,500 as a contribution towards its costs.

When this trouble first began, two of the creators of BrewDog actually went out and went through the legal process of changing their names to Elvis, attempting to make the point that it's a common enough first name that nobody should associate it with a single famous person for all alcohol products everywhere. The brewery has a reputation for fighting these kinds of fights, so it can appeal the rejection, and hopefully will. After all, the trade dress for the Elvis Juice brand has absolutely nothing to do with Elvis Presley.

Anyone looking at that can of beer and thinking of a 1950's rock star isn't so much confused as potentially suffering from brain damage. To my original point, the common name "Elvis" ought to not be trademarked on its own in the first place, as that single common name does nothing to indicate any branding or origin on its own. "Elvis Juice" is unique and creative. "Elvis Presley" is an identifiable source name or phrase. But "Elvis" all on its own? That's just a name.

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Posted on Techdirt - 18 July 2017 @ 3:24am

EU Looks To Prevent Employers From Viewing An Applicant's Publicly Available Social Media Information

from the well-that's-dumb dept

Ever since social media sites like Facebook and Twitter became household names here in America, we've occasionally had really stupid debates about just what type of access to those accounts employers should get from their employees. Some states have even passed laws that would allow employers to demand social media passwords from employees and applicants, presumably so that company reps can comb through private messages and posts shared only with the employee's or applicant's friends. If all of that seems stupid to you, that's because it totally is!

But it's not remotely as dumb as what the EU has decided to do in regulating corporations such that they are disallowed from viewing public social media information about an applicant unless it directly relates to the job for which they have applied. To be clear, this new regulation is non-binding at the moment, but it will be the basis of data protection laws set to come out in the future. Still, preventing a company from viewing publicly available information doesn't make much sense.

Employers who use Facebook, Twitter and other social media to check on potential job candidates could be breaking European law in future. An EU data protection working party has ruled that employers should require "legal grounds" before snooping. The recommendations are non-binding, but will influence forthcoming changes to data protection laws.

The guidelines from the Article 29 working party will inform a radical shake-up of European data protection laws, known as the General Data Protection Regulation (GDPR), which are due to come into force in May 2018. Their recommendations also suggest that any data collected from an internet search of potential candidates must be necessary and relevant to the performance of the job.

When it comes to privacy restrictions on matters of social media, it seems to me that there is an easy demarcation line that ought to suffice here: that which is public and that which is not. Most social media sites come with handy tools to keep some or all portions of an account private, or shareable only amongst connections within the platform. If an applicant wants something kept from the eyes of an employer, they need only hide it behind those privacy options. This regulation, however, would restrict a company from accessing public information, which should plainly be viewed as nonsensical.

The post notes that recruitment sites like CareerBuilder have seen rates of 70% or so employers that check public social media accounts of applicants they consider hiring. That's as surprising as the sun rising each morning. It's barely even considered creepy any longer to google the names of friends, never mind people you're looking to hire. Somehow I don't see any regulation curbing that across a continent.

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Posted on Techdirt - 17 July 2017 @ 3:36pm

Capcom Manually DMCAs English Translation Of Ace Attorney Game Not Available In English

from the language-as-drm dept

In gaming circles, Capcom is often seen as the company that brought you the Street Fighter and Resident Evil series of games. More recently, Capcom has become notable for its Ace Attorney series of games as well. But in intellectual property circles, Capcom will always be the game studio that pimped SOPA to the public, foisted broken DRM on its customers, and treated Resident Evil customers both to a secondary-market killing DRM that allowed only one play-through of the game and the removal of promised features and only alerted customers to it after sales had begun rolling in. I think it's fair to say, in other words, that Capcom has been known to be almost cartoonishly pernicious.

Speaking of which, Capcom also recently shut down a fan-translated play-through of an Ace Attorney game only available in Japan. Consistency!

Dai Gyakuten Saiban is an Ace Attorney spin-off starring an ancestor of Phoenix Wright in feudal Japan that has not been released in English. For O and Garbage, who run a Dai Gyakuten Saiban YouTube channel, it’s their favorite Ace Attorney game.

“Since I have an import 3DS, I bought the game just to try it out,” she said over reddit private messages. “Dai Gyakuten Saiban drew me in with it’s aesthetics, and then caught me in a death grip with Asougi [the main character’s rival].” Their shared passion for the game lead them to translate it over a period of about 8 months. Their videos consisted of footage of the game as they played it without commentary, with subtitles added using YouTube’s subtitling options. They finished just in time for the announcement of Dai Gyakuten Saiban 2. “We both loved the game a lot,” O said, “and it was a shame that not everyone would be able to experience it because it lacked a localization.”

Ok, so a couple of things to note here. First, the videos in question are quite old. It seems they began the series in 2015, so we're talking a couple of years here. Second, O and Garbage say they purposefully made sure there were no ads or monetization on the videos. They were trying to share the game with others that didn't have access to it, not make coin. Third, I've found nothing to suggest that any English version of the game is even planned, nevermind set for release. Most references for the game suggest there is no planned release for the game anywhere outside of Japan. Given that it's already a few years old, the likelihood of translated versions is beginning to drop. So, we have a fan translation of a game play-through in a language for which there is no planned release, with an audience in a market for which there is no planned release. And Capcom took it down. Why?

I already know what you're thinking: "Probably a ContentID or bot-driven DMCA notice is to blame." Nooooooope.

Sunday, June 25th, O discovered that the entirety of their translated Dai Gyakuten Saiban videos had been taken down by Capcom. The copy of the takedown notice they showed me indicated that they were manually detected, and not a victim of the automated “Content ID” system that is sometimes overzealous in how it flags gameplay videos. I reached out to Capcom about this and they declined to comment.

So Capcom manually took down this fan translation, apparently believing that language is a form of DRM and gamers ought to have to learn Japanese and buy the only version of the game that exists in order to get any sort of peek at a play-through. Keep in mind we're talking about a play-through without ads or monetization on it. I'm struggling to come up with an explanation for why Capcom would do this other than...they're just mean, I guess? Mean to very real fans of its games that just wanted to show off how cool the game was to those that had no shot of getting it for themselves because Capcom didn't make it available to them.

While she’s not as frustrated as she was when she first found out, O and Garbage are both “bummed,” as Garbage puts it. But neither of them have very many regrets about starting the project in the first place.

“There wasn’t an earth shattering revelation or pull to me doing this,” Garbage said. “I just wanted to share a game that was inaccessible.”

8 months of work down the drain. And for what?

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Posted on Techdirt - 13 July 2017 @ 3:24am

Copyright Madness: Blurred Lines Mess Means Artists Now Afraid To Name Their Inspirations

from the cultural-losses dept

The ways in which the disastrous Blurred Lines verdict represents a complete mess for the music ecosystem are fairly legion, from chilling artistic creation for fear of unintended infringement to the absurdity of giving estates of long-dead artists license to stifle the release of new art that would benefit our culture as a whole. The awful ripple effects of the lawsuit don't end there and it's useful to keep in mind that the jury awarded the $7.3 million verdict to the Marvin Gaye estate acknowledged that there was no willful infringement on the part of Blurred Lines creators Robin Thicke and Pharrell Williams. Put another way, the jury latched onto the duo's perceived and, in the case of Pharrell, stated inspiration by Gaye's contributions to music and decided that inspiration was copyright infringement. For anyone with even a cursory understanding of how music is made and creativity sparked, this was crazy.

So crazy, in fact, that as the world waits for the appeal, it seems that some musicians and their management groups have decided that nobody ought to talk about who inspired whom publicly.

Now though, music experts have told the Victoria Derbyshire programme that artists are being advised not to mention publicly who has inspired them. This is because of a high-profile copyright infringement case in which US jurors ruled that Robin Thicke and Pharrell Williams, on their song Blurred Lines, had copied Marvin Gaye's Got To Give It Up.

According to forensic musicologist Peter Oxendale "everyone's concerned that inspiration can [now be interpreted as] a catalyst for infringement.

"All of these companies are worried that if a track is referenced on another at all, there may be a claim being brought," he explains.

If you've ever wondered what a chilling effect looks like in its chilly, chilly flesh, this is it. Since time immemorial, it has been common practice in the music industry to laud praise on one's inspirations and heroes in the music world, with no narrow eyes cast at those inspired by the greats from the past. When Bruno Mars created Uptown Funk, everyone who listened to it knew the era and genre the music was inspired by. Hell, the first time I heard that song, it made me immediately go back and listen to Morris Day and the Time, for instance. That's how music and culture works... and it's great for music and culture. Homages such as Uptown Funk or Blurred Lines, with their nods to music's past and to the great artists that built that past, are undoubtedly what keeps those past artists relevant. But now, in the wake of a terrible jury award for what everyone seems to agree wasn't even willful infringement, we get to witness copyright killing that part of the culture. Instead, apparently everyone will simply pretend publicly that all art is created in a vacuum of influence, devoid of homage and bereft of cultural context.

And the labels aren't just stopping there. There are some reports that the labels want artists to secretly disclose their influences contractually as a way to do a risk analysis on future copyright lawsuits.

Mr Oxendale says some artists are now having the requirement to name their influences written into contracts by their record labels - although he would not specify names.

"Many of the companies that I work with ask the producers and the artists to declare all of the tracks that may have been used as inspiration for their new tracks," he says.

He also confirmed that he is being sent new music to check the possibility of future copyright infringement claims.

No serious person could possibly claim this is good for music, for artists, or for our shared musical culture. And if we agree on that, then we agree that this ruling represents a perversion of copyright from its intended purpose, which is to foster more culture and creation. Much in the way certain industries absolutely hate ambiguity in their markets, so too does the music industry on matters such as these.

Nevertheless, Simon Dixon - one of the lawyers for Ed Sheeran, Sir Elton John and the Rolling Stones - says the judgement has made some people in the industry nervous.

"[The court case] wouldn't have been decided the same way over here [in the UK]," he explains. "So as a result, everyone felt they knew what the law was, they knew what the parameters were. And when you know what the laws are and the rules are you get comfortable. This injects an element of grey into the picture. So as a result people are less certain now about what they can and can't do. And as a result, everybody feels a bit nervous."

Any person who would want to state that this nervousness has no effect on artistic output would make that claim to the peril of their credibility. It has to have an impact and that impact cannot possibly be positive. If ever there were a case of copyright being used against its own purpose, this certainly must be that case. It also serves nicely as a canary in the coal mine for what our permission culture might ultimately do on our wider culture as a whole.

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Posted on Techdirt - 11 July 2017 @ 6:41pm

House Budget Proposal Includes The Creation Of The United States Space Corps.

from the knee-deep-in-the-debt dept

There has been much in the way of focus on all the different ways Congress has devised to fight with itself as of recent, with most of that revolving around stupid partisan bickering and political posturing. Still, there are real proposals on the table, and currently the 2018 defense budget is one of them. We've already talked about some recent changes in DoD recruitment strategies that seek to get with the times, as it were. But where those changes were made to stave off dwindling rosters of soldiers at CYBERCOM, the House proposal for 2018 includes the creation of a brand new military branch.

Don't get your hopes up too high about becoming a space marine quite yet. But if the House of Representatives' version of the 2018 defense budget goes through, you may soon be able to enlist in the US Space Corps.

The House Armed Services Committee (HASC) has breathed new life into those old plans by including a provision in the House version of the 2018 US defense budget that would create a separate military service dedicated to the cause of space as a warfare domain: the US Space Corps. It would also create a separate joint command, the US Space Command, breaking the role out of the US Strategic Command much in the way that was done with the US Cyber Command.

The biggest surprise in all of this might well be that it took this long, actually. Cyber Command's battleground is mere decades old, whereas we have been exploring space for more than half a century. Still, there is something unnerving about formalizing Earth's place at the cosmic table as a potential war theater. That said, the proposal does enjoy the rare consensus of bi-partisan support and it's not difficult to understand why. More than ever, we rely on assets outside of our immediate atmosphere to power all sorts of things key to our national security and power. The branch that currently oversees space defense and strategy, the Air Force, is no longer seen as capable of handling the job.

There’s been nothing shortsighted about this. We started working on it vigorously in September, and we’ve had countless meetings with a number of experts who have advised us as to how this should be construed. GAO has done three studies on this, all of which tell us that you cannot maintain the current organizational construct of the Air Force and solve the acquisition problems and the operational problems that we have. The Air Force is like any other bureaucracy. They don’t want to change.

At some level, this was inevitable. We are humans and, where we go, we fight. So don your helmets and fire up that chainsaw, future space marines, because the next battleground may be the inky blackness of the void. If so, it seems the House of Representatives, at least, wants to be prepared for it.

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Posted on Techdirt - 10 July 2017 @ 6:31pm

How One Game Developer Views Steam's Refund Policy As A Boon In The Face Of Over $4 Million In Refunds

from the the-long-game dept

It's been a little over a year since the Steam platform finally rolled out a true refund program for digital game purchases, with Microsoft quickly following suit. While gamers rejoiced at the news that every game purchase wasn't some form of a gamble, game developers reacted in a range generally between being nonplussed to vocally angry or fearful. The overall concern was that this move to shift the balance of Steam's supportive stance towards the consumer and away from the game developer would negatively impact the bottom line of developers now faced with a negative column in their sales metrics.

Yet there are still very smart people in the gaming industry. One of those people appears to be Garry Newman, the developer for Rust, a survival game available on Steam's platform. Rust has been refunded a staggering 300,000-plus times, resulting in nearly four-and-a-half million dollars in refunds. But rather than freaking out and lashing out at the Steam refund policy, Newman instead decided to publish the refund statistics for everyone to see. And then he went on to explain why he thinks the refund policy for his game is actually a good thing.

Newman believes, however, that refunds provide Steam users who might normally keep their wallets under lock and key with some leeway. “I think in the long run, people knowing the refund system is there probably gained us more sales than it lost us,” he said.

That's the sound of a man confident in his product. So confident, in fact, that he trusts that taking away some of the fear and mental cost to a transaction for his game will ultimately result in more cashflow in by gamers who keep the game than cashflow out from gamers refunding it. We make this argument all the time about digital marketplaces: taking away barriers for potential customers to enjoy a product will grow the customer-base enough to render any negatives unimportant.

There's also something to be said for the vision of being consumer friendly in this way. Anyone reading Newman's comments must certainly favor this kind of transparency and, again, the confidence in his product that he is demonstrating. More so, the flip side makes the inverse argument: game developers afraid of a refund policy are clearly afraid of it due to the anticipation that it will used. That would seem to indicate a wavering stance on how good the product is to begin with.

If nothing else, this past year has shown us that digital goods can still come packaged with consumer friendly policies while keeping the industry successful. Hopefully we'll see more of this sort of thing.

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Posted on Techdirt - 7 July 2017 @ 11:50am

Study: Dutch Piracy Rates In Free Fall Due Mostly To The Availability Of Legal Alternatives

from the you-don't-say dept

The claim that the best way to combat content piracy is to offer good legal alternatives and make them widely available isn't exactly breaking new ground. Case studies made out of several nations' piracy rates, such as in Australia and Norway, demonstrate the severe impact creating good digital marketplace alternatives to piracy can have. Techdirt's think tank arm, the Copia Institute, produced the definitive report highlighting this in multiple countries nearly two years ago.

And, yet, the copyright industries and their mouthpiece organizations typically choose to beat the punishment drum instead, going the route of litigation against pirates that ultimately ends up being a PR nightmare, or instead going the route of wholesale censorship on the internet that is equal parts ineffective and alarming to those of us that think such censorship ought to have a high bar to hurdle in order to be implemented. It's with that in mind that any new example that simply offering legal alternatives is a better route is useful to highlight.

Which brings us to the Netherlands, long assumed to be a hotspot of piracy. And, indeed, as recently as 2013 a study put out by Telecompaper indicated that 41% of the Dutch people were downloading copyrighted content for free. But that same study also suggests that this piracy rate has dropped all the way to 27% as legal alternatives have emerged.

In November 2013, when services such as Netflix and Spotify were still new, 41% of Dutch people were downloading illegal content. In January, that percentage fell to 27%. From this group, 77% say they plan to download less pirated content; the remaining 23% claim they will increase illegal usage.

Of the group that still downloads, 8% say they have reduced their activities because it is becoming harder to find what they are looking for. Of the people who have increased their pirate activities, 6% said in January that it was easier to find what they were looking for, compared to 13% in 2013.

Now, the post makes a point to note that BREIN, the anti-piracy outfit in the region, has also stepped up its efforts in this time. But if you look at the data in the respondents, it's clear that BREIN's attempts to make pirated content less available isn't much of a factor for those that have ceased pirating that content. Less than one in ten of the people still downloading content illicitly are finding it harder to do so. That's much less a factor than the piracy rate in the country dropping by a third.

Which leaves us with the wider availability of legal alternatives being the main impetus for the change. That jives well with what we've seen in other countries too. All of which leaves us to ponder once again why the content industries don't seek to ramp up the legal alternatives instead of going to war with them or, worse yet, trying to wage some unwinnable legal fight with all of piracy everywhere?

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Posted on Techdirt - 7 July 2017 @ 9:25am

There Is An Easy Answer To Whether Machines Should Get Copyright Rights And It Comes Down To Copyright's Purpose

from the promote-the-progress dept

As the march of progress of robotics and artificial intelligence continues on, it seems that questions of the effects of this progress will only increase in number and intensity. Some of these questions are very good. What effect will AI have on employment? What safeguards should be put in place to neuter AI and robotics and keep humankind the masters in this relationship? These are questions soon to break through the topsoil of science fiction and into the sunlight of reality and we should all be prepared with answers to them.

Other questions are less useful and, honestly, far easier to answer. One that continues to pop up every now and again is whether machines and AI that manage some simulacrum of creativity should be afforded copyright rights. It's a question we've answered before, but which keeps being asked aloud with far too much sincerity.

This isn't just an academic question. AI is already being used to generate works in music, journalism and gaming, and these works could in theory be deemed free of copyright because they are not created by a human author. This would mean they could be freely used and reused by anyone and that would be bad news for the companies selling them. Imagine you invest millions in a system that generates music for video games, only to find that music isn't protected by law and can be used without payment by anyone in the world.

Unlike with earlier computer-generated works of art, machine learning software generates truly creative works without human input or intervention. AI is not just a tool. While humans program the algorithms, the decision making – the creative spark – comes almost entirely from the machine.

Let's get the easy part out of the way: the culminating sentence in the quote above is not true. The creative spark is not the artistic output. Rather, the creative spark has always been known as the need to create in the first place. This isn't a trivial quibble, either, as it factors into the simple but important reasoning for why AI and machines should certainly not receive copyright rights on their output.

That reasoning is the purpose of copyright law itself. Far too many see copyright as a reward system for those that create art rather than what it actually was meant to be: a boon to an artist to compensate for that artist to create more art for the benefit of the public as a whole. Artificial intelligence, however far progressed, desires only what it is programmed to desire. In whatever hierarchy of needs an AI might have, profit via copyright would factor either laughably low or not at all into its future actions. Future actions of the artist, conversely, are the only item on the agenda for copyright's purpose. If receiving a copyright wouldn't spur AI to create more art beneficial to the public, then copyright ought not to be granted.

To be fair to the Phys.org link above, it ultimately reaches the same conclusion.

The most sensible move seems to follow those countries that grant copyright to the person who made the AI's operation possible, with the UK's model looking like the most efficient. This will ensure companies keep investing in the technology, safe in the knowledge they will reap the benefits. What happens when we start seriously debating whether computers should be given the status and rights of people is a whole other story.

Except for two things. First, seriously debating the rights of computers compared with people is exactly what the post is doing by giving oxygen to the question of whether computers ought to get one of those rights in copyright benefits. Second, the EU's method isn't without flaw, either. Again, we're talking about the purpose being the ultimate benefit to the public in the form of more artistic output, but the EU's way of doing things divorces artistic creation from copyright. Instead, it awards copyright to the creator of the creator, which might spur more output of more AI creators, but how diverse of an artistic output is the public going to receive from an army of AI? We might be able to have a legitimate argument here, but there is a far simpler solution.

Machines don't get copyright, nor do their creators. Art made by enslaved AI is art to be enjoyed by all.

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Posted on Techdirt - 6 July 2017 @ 6:36pm

Two Wangs Of Ireland Battle Over Trademarks Nobody Will Confuse

from the surfs-down dept

It's frankly sort of ridiculous, but the state of trademark protectionism that exists today has rendered the trademarking of a person's own last name somewhat unwise. Given the low bar that has unfortunately been set in terms of judging real or potential customer confusion in the marketplace, simply using one's own name for a commercial brand rife with danger where trademarks are concerned. Something of an example of this is currently taking place between a small New York clothing designer named Thaddeus O'Neil and famed surf wear manufacturer O'Neill. The latter has been blocking a trademark application by O'Neil for over a year now.

In May of 2016, O'Neil the person filed a trademark for the name of his company, Thaddeus O'Neil, as well as his T.O. logo, which looks like an upside down Venus symbol. O'Neill the company, filed a motion in the U.S. Patent and Trademark Office asking the court to block the trademark, claiming it was "likely to cause confusion." In June, the USPTO stated that the motion was not sufficient to grant the motion, however O'Neill the company appealed and the decision is now pending. The game of legal ping pong continues.

Let's get this out of the way: the two brands have little in common other than both selling clothing -- very different kinds of clothing -- and having a variation of a common last name. The branding for each company is wildly different and poses no threat to even the most moronic and hurried among us.

Those brands are nothing alike and they don't sell to similar marketplaces. Thaddeus O'Neil's branding includes his entire name. The lengths O'Neill is going to to block his trademark application seem rather heavy-handed given that, but it adds to the strangeness of it all that Thaddeus O'Neill can't name his brand after himself. And that strangeness birthed one of the best quotes I've ever been able to include in a Techdirt post.

"I'm a designer, and this is my work," O'Neill said in an email to The Hollywood Reporter. "Why can't the clothing I create bear my own name? We have Alexander Wang and Vera Wang coexisting unproblematically in same space. Wang is like Smith in China. They get along just fine and so do their customers. O'Neil is the Wang of Ireland."

O'Neil is the Wang of Ireland is something of a gem, but he's also plainly correct. Ownership over so common a last name at best should be wielded with care, if such a trademark ought to have been granted at all. Similar to how high the bars for infringement trademarks utilizing geographical areas are, so too should trademarks utilizing common last names be forced to reserve protectionism for when real confusion is likely or evident.

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Posted on Techdirt - 5 July 2017 @ 6:30pm

Indie Developer Finds Game On Torrent Site, Gives Away Free Keys Instead Of Freaking Out

from the super-chill dept

When game developers find their products available for download on torrent sites and the like, it's understandable if their reaction isn't exactly positive. Many gamemakers pour their hearts into developing their art and finding it available for free, fully cracked of any DRM that they might have included, can be understandably frustrating. It's typically that frustration that launches into DMCA takedowns, complaints about piracy harming the gaming business, and talk of site-blocking and legal threats.

But not every game developer falls into that category. While it doesn't happen enough, some developers try to understand what piracy is and isn't, and where inroads with the gaming community can be made, even amongst those dastardly pirates. A recent example of this would be Jacob Janerka, who created the indie game Paradigm, only to find the game available on torrent sites across the internet.

But, instead of being filled with anger and rage while running to the nearest anti-piracy outfit, Janerka decided to reach out to the pirates. Not to school or scold them, but to offer a few free keys.

“Hey everyone, I’m Jacob the creator of Paradigm. I know some of you legitimately can’t afford the game and I’m glad you get to still play it :D,” Janerka’s comment on TPB reads. “If you like the game, please tell your friends and maybe even consider buying it later,” he added.

Rather than playing whac-a-mole or, even worse, spending many calories and minutes complaining about the reality of video game piracy existing, Janerka decided to engage this community, give away a few free game keys, and include a request to spread the word about the game if those on the torrent site truly enjoy it. That's about as congenial as it gets, especially when we keep this within the frame of this group being one downloading Janerka's game for free when he's attempting to make a business out of his work product.

In the aftermath of this, someone posted the exchange on Reddit, leading to a chorus of approval from the internet community, to further coverage of the story and his game by proxy, and to news coverage of Janerka. In those interviews, Janerka revealed that this isn't some marketing ploy that went well, but rather that he has personal experience with pirating games.

“I did it because I understand that in some cases, some people legitimately cannot afford the game and would like to play it. So maybe HOPEFULLY for a lucky few, they got the official keys and got to play it and enjoy it. I know for sure that when I was a young kid, I was unable to buy all the games I wanted and played pirated games. And when I actually got that disposable income, I ended up buying sequels/merch/extra copies,” Janerka adds.

The developer doesn’t think that piracy hurts him much, as many people who pirate his games don’t have the money to buy them anyway. In addition, having non-paying fans of the game is more valuable than having no fans at all.

Janerka's approach is the polar opposite of most of the larger studios that tend to see game pirates as vermin fit for the judicial system. To see news of the game spread like this, simply because the developer decided to be awesome and human rather than heavy-handed or litigious, should be a signal to creators big and small how to handle having their games show up on torrent sites.

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Posted on Techdirt - 28 June 2017 @ 1:39pm

As Predicted, Cox's Latest Appeal Points To SCOTUS' Refusal To Disconnect Sex Offenders From Social Media

from the which-is-worse? dept

Last week the Supreme Court managed to hold its nose long enough to properly assert that banning convicted sex offenders from social media was plainly an infringement on their First Amendment rights. While much of the media coverage focused on the question of sex offenders having access to these well-trafficked websites, the real implications of the ruling were always likely to be far more reaching. We specifically pointed to the reasonable question: if sex offenders can't be blocked from internet sites due to their First Amendment rights, how can we possibly require ISPs to disconnect those accused of piracy from the internet under even the most tortured reading of 512(i) of the DMCA? In that original post, Mike wrote:

I expect that to be quoted in many other cases -- and a big one may be the ongoing attempts right now by the legacy entertainment industry to force ISPs to kick people off of their service based on accusations (not convictions) of infringement. Those cases, like this Packingham case, involve using a law to claim that people should be blocked from using the internet. And based on the quotes above, it seems quite likely that parts of the DMCA are clearly unconstitutional. The lawsuits -- mainly the BMG v. Cox ruling which is currently on appeal, and the more recent UMG v. Grande Communications (which follows the same basic outlines of the Cox case) -- involve arguing that 512(i) of the DMCA requires ISPs to kick users off their service entirely based on accusations of infringement. As we've explained, this already appears to be a twisted interpretation of 512(i), but now it appears there's a very reasonable chance that the Supreme Court could find 512(i) outright unconstitutional under the First Amendment for broadly blocking internet access in a way that harms free speech rights.

It appears we're starting down the road of finding out exactly what the court's answer to this question will be, as Cox recently filed an appeal and has now referenced the SCOTUS decision in its written arguments.

Packingham is directly relevant to what constitute ‘appropriate circumstances’ to terminate Internet access to Cox’s customers. The decision emphatically establishes the centrality of Internet access to protected First Amendment activity.

As the Court recognized, Internet sources are often ‘the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge’.

The filing goes on to note that the government is not allowed to infringe on free speech in order to prohibit unlawful speech. If ever there were an example of that very thing, it certainly would be accused pirates being disconnected from what has now been cited as a speech medium in the internet. I'm genuinely looking forward to hearing oral arguments from the legal staff of the movie and record labels that those accused of piracy, typically on flimsy at best evidence, ought to be afforded less rights than convicted sex offenders. We've seen much demonizing of the internet in general and piracy in particular, but I'm having a hard time conjuring up the images of those lawyers managing to go that far. That's an argument that's going to need to be made, however, given the contention of Cox's latest filing.

And if it offends the Constitution to cut off a portion of Internet access to convicted criminals, then the district court’s erroneous interpretation of Section 512(i) of the DMCA — which effectively invokes the state’s coercive power to require ISPs to terminate all Internet access to merely accused infringers — cannot stand.

A win for Cox would mean much for the free speech rights of everyone in regards to internet access. A loss would mean this country's court system has some seriously skewed priorities for who should and should not be allowed access to the web.

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Posted on Techdirt - 28 June 2017 @ 3:23am

Court Orders Man Who Sued News Orgs For Clipping His Facebook Video To Pay Everyone's Attorney's Fees

from the good dept

Earlier this year, we brought to you the story of one man's quest to sue all of the news organizations for using a clip of his Facebook video in which his partner is giving birth to his child. Kali Kanongataa sued ABC, NBC, Yahoo, CBS, Microsoft, Rodale and COED Media Group for reporting on the video and showing a clip of it, claiming copyright infringement. It was an odd claim for many reasons, not the least of which being that Kanongataa made the stream public and available on his Facebook page, not to mention the obvious Fair Use case to be made by the news groups reporting on the matter. The suits didn't work, of course, with most or all of them having now been dismissed.

But that wasn't the end of the story for Kanongataa and his crack legal team that saw fit to entertain this frivolity. The judge in the case, Lewis Kaplan, decided to verbally light his lawyers on fire when assessing Kanongataa to pay legal fees to the defendants.

No reasonable lawyer with any familiarity with the law of copyright could have thought that the fleeting and minimal uses, in the context of news reporting and social commentary, that these defendants made of tiny portions of the 45-minute video was anything but fair.

That's a fairly damning statement on the court records for the legal staff of Kanongataa, though it stopped short of sanctioning them. Instead, Kanongataa's lawyers will have managed to get him saddled with these court fees by entertaining this litigious nonsense. Judge Kaplan goes on to state that the case was frivolous and that these fee assessments should serve as a good deterrent in order to "better serve the purposes of the Copyright Act." That purpose is not to reward people who see a payday in the form of plainly Fair Use reporting. And we're not talking about pennies in legal fees, either.

Hence, the media outlets that were on the receiving end of the lawsuit are entitled to recover what may amount to hundreds of thousands of dollars in legal costs. Kanongataa's lawyers from New York—Yekaterina Tsyvkin and Richard Liebowitz—did not immediately respond for comment. The judge gave the media companies three weeks to say how much they think they should be awarded in costs associated with defending the lawsuit.

Big dollars, yes, but that's warranted to keep this sort of thing from regularly mucking up the court docket. Copyright's purpose isn't a get rich quick scheme.

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Posted on Techdirt - 27 June 2017 @ 9:24am

Game Music Composer Goes On DMCA Blitz Against Innocent YouTubers Over Contract Dispute With Game Publisher

from the hostage-negotiations dept

Stories about both the abuse of the DMCA process and the peril YouTubers regularly find themselves subject to by way of intellectual property laws are both legion, but to see the truely egregious nature of the abuse of this sort of thing, it takes a story about them intersecting. We appear to have such a story on our hands in the form of a music composer hired to work on a video game that then began sending DMCA notices to YouTubers over a contractual dispute with the game publisher. This story weaves a strange path, so let's dig in.

Alex Mauer is a digital composer. She was hired to do contract work by Imagos Softworks, the developers of Starr Mazer: DSP. That game had been available for early access on Steam, but is still down at the time of this writing. The reason for that is that Mauer sent Steam a DMCA notice for the game, claiming that it used her music without proper payment. Mauer and Imagos are in the middle of a fairly heated contract dispute, one which Imagos has been taking public with explanations of what happened and why the claim is not true.

When you have dug into enough of these sorts of things, you begin to have a good sense for what's going on based on everyone's responses. Imagos' response is solely from its perspective, so it is not to be taken as the final word on the matter, but claims this detailed tend to be more common from those on the right side of things. Despite having been paid roughly $35,000 for her work on the game as a contract for hire, Mauer is currently claiming that Imagos owes her another $10,000. Even if that were true, the rights for the music in the contract were transferred to Imagos, making the DMCA claim against the game inappropriate. Through it all, Imagos claims to have attempted to resolve this with Mauer on several occasions only to be refused, while also going so far as to strip her music from the game and replacing it with temporary placeholder music.

But Mauer is apparently still unsatisfied. As I mentioned above, you can often get a sense of which side of an issue is on the firmest ground by how they behave. Well, Mauer's behavior in the past week has amounted to levying DMCA claims against every YouTuber showing off Starr Mazer: DSP footage that included her music. Even with the obvious Fair Use defense these YouTubers would have, that isn't even the most infuriating aspect of the tactic. No, that title belongs to Mauer suggesting to the YouTubers that she was launching the DMCA claims to raise awareness of the contract dispute and would rescind them if the YouTubers would give some hell to Imagos instead.

According to Ms. Mauer, Imagos Softworks owes her US$ 10,000 “for unpaid music work” (on Starr Mazer: DSP) and she is trying to use the DMCA strikes as a way to generate awareness about her situation. Sadly, this isn’t the intended purpose of the copyright strikes system, and innocent content creators are being punished when their only involvement in the matter has been that they published videos covering the independent roguelike shooter.

Well-known YouTuber SidAlpha even reached out to Mauer on behalf of his smaller peers to try to figure out what the hell was going on and received the following reply.

The fact that TemmieNeko is directing her complaints to me instead of the developer is a problem. This seems to be the general response of those who were hit with DMCA strikes. I did suggest to some who complained to me that I would reverse their DMCA strikes if they were willing to redirect their complaints to the developer/complaints about the developer. No one was willing to do so, and I no longer want to offer anyone the possibility of having their DMCA strikes reversed. Thank you.

It's worth repeating that none of this serves the purpose of the DMCA. In fact, there is a ton of potential harm to the YouTubers in question, who, in receiving these abusive DMCA notices, are at risk of having their channels pulled by YouTube. They can file a counter-claim, and should be successful with them, but there is still a risk. There is also risk for Mauer herself, as the DMCA process does have a perjury provision for fraudulent claims.

SidAlpha also explained that once the affected YouTubers process a successful counterclaim, they would be able to file a civic lawsuit against Mauer. This is because filing a fraudulent DMCA claim is considered perjury and she would be tried in the state the Youtubers live in. In addition, because the videos are transformative, they are protected by the Fair Use Doctrine which renders the DMCA strike spurious. Also, she doesn’t own the music in the first place because it was made as part of a for-hire contract with Imagos. Imagos owns all content related to Starr Mazer and Starr Mazer: DSP.

Mauer has since gone on to send out DMCA notices for a couple other games in which her music is featured, including one put out by Adult Swim. As part of this, Mauer has gone so far as to send a DMCA notice to Turner Broadcasting. Meanwhile, she put the music she created for Imagos under her contract on her own website, selling it as part of an album for $1,000.

This is as clear an abuse of the DMCA process as I've seen to date and there is no excuse for imperiling innocent YouTubers over a contract dispute with a game publisher. If ever there were a case begging for punishment over abuse of the DMCA system, this is certainly it.

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