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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 - 22 January 2019 @ 9:31am

Lucasfilm Steps In After FanFilm That Tried To Follow The Rules Was Claimed By Disney Over Star Wars Music

from the the-light-side dept

When it comes to Star Wars, both Lucasfilm and Disney have shown themselves to be perfectly insane when it comes to IP protectionism. Examples of this are legion, and neither company has come out of them with a stellar or fan-friendly image, generally speaking. That is probably why when Toos, the guy behind the quite popular Star Wars Theory YouTube channel, decided to put out a Darth Vader fan-film, he went out of his way to attempt to follow all the rules.

When he first began to make the Vader film, he contacted Lucasfilm who gave him their blessing to make it, as long as he made it without crowd funding and left the video un-monetized, meaning that no ads would run on it, hence there would be no revenue to collect from it.

These rules themselves don't make it easy for fan-films like this to exist. The production costs for Toos' film ran in the six-figures. Without the ability to run ads on the film himself, or crowd-fund the production costs, Lucasfilm's rules almost feel like a test of Toos' personal fandom. If so, it was a test he passed with flying colors, having completed the film and releasing it in January. It has been viewed over seven million times at this point.

Which probably makes it really annoying that Disney claimed the video on YouTube due to the inclusion of a short cover of the Imperial March being in the film and then subsequently decided to layer its own advertising all over the video.

Earlier this week, Theory posted a video saying that Disney and their partner company Warner Chappell had claimed that because the custom score used in the film used a rendition of the Imperial March score, then it was in violation of their copyright policy. They used this copyright to claim that the entire film was now their intellectual property and were now going to run ads on it and collect the revenue themselves.

Now, Toos could have appealed the claim, of course, which would have kicked off a claim/counter-claim routine that perhaps would have ended in a federal court filing. Given the money Toos already sunk into all of this, he produced a video instead saying he was just going to lay low on the whole ordeal.

Which is when, somewhat unexpectedly, Lucasfilm decided to get involved.

Yesterday, on January 16, Star Wars Theory posted another update video on his channel regarding Disney’s copyright claim, but this time it was good news. According to him, after a backlash from Star Wars fans, Lucasfilm stepped in and told Disney that Theory made the film under a certain set of rules and that they needed to release the copyright claim that they placed on the Vader fan film.

Which, yes, brings all of this back to where it was before Disney decided to claim the entire work of a fan-film over one of the most recognizable and widely available songs in any musical score on the planet. And this was, by the way, after Disney initially refused to back down at the request of Toos.

So...welcome to the light side of the force, Lucasfilm?

137 Comments | Leave a Comment..

Posted on Techdirt - 18 January 2019 @ 7:39pm

The 'Choose Your Own Adventure' People Are Suing Netflix Over 'Bandersnatch'

from the ip-adventure dept

As you may have already heard, the latest iteration of the Black Mirror franchise on Netflix, titled Bandersnatch, is an absolute hit. You likely also have heard that it allows the viewer to influence the plot by making choices within the story's many inflection points. And, hey, perhaps you even heard that Netflix is facing legal action by Chooseco LLC, the company behind the "Choose Your Own Adventure" series that were popular in the '80s and '90s.

But if you haven't dug into the details, both in terms of why Chooseco states the Netflix series violates its trademark and the damages it is asking for in court, you may not realize just how bonkers all of this is.

Chooseco LLC is suing Netflix for trademark infringement and dilution over the streaming service’s new hit, claiming that Netflix is “willfully and intentionally” using its trademark “to capitalize on viewers’ nostalgia for the original book series from the 1980s and 1990s.”

Bandersnatch is an interactive film that allows viewers to make choices that drive the plot and decide the ending. Early on, the main character informs his father that “Bandersnatch is a ‘Choose Your Own Adventure’ book” and holds up a copy by fictional author Jerome F. Davies.

Now, it should be noted that this entire claim appears to rest on two things. First, there is very brief nod to the book series at one point in the film. Second, Netflix at one point had spoken with Chooseco about officially licensing their trademark for a Choose Your Own Adventure series that doesn't appear to have anything to do with Bandersnatch. But it's important to make something clear: at no point has Netflix ever referred to its own Banderstatch as "choose your own adventure," or anything close to that. It is true that many people may have compared the two because, duh, but that's not on Netflix (one might argue it's on Chooseco for picking a name that is so easily genericized). From there, Chooseco claims that there will be public confusion about the origin and/or affiliation of Bandersnatch having something to do with Chooseco, and it claims that the film's use dilutes the positive warm-and-fuzzies people have for the book series. On that front:

Overall, Bandersnatch is a dark film and the videogame that Butler creates in it based on its fictional inspiration is equally dark. Nearly every narrative fork includes disturbing and violent imagery. The movie has a rating of TV-MA, which means the content is specifically designed to be viewed by adults. Depending on the choices the viewer makes, it can include references to and depictions of a demonic presence, violent fighting, drug use, murder, mutilation of a corpse, decapitation, and other upsetting imagery. These dark and violent themes are too mature for the target audience of Chooseco's CHOOSE YOUR OWN ADVENTURE BOOKS. Association with this grim content tarnishes Chooseco' s famous trademark.

This, as should be plainly evident, is absurd on many levels. Fans of Bandersnatch aren't going to think less of the Choose book series because Bandersnatch is dark. Dark is the whole point of Netflix's series. Aside from that, a throwaway line in the beginning of the film serving as a simple nod to the book series doesn't exactly create the lasting impression that there is any affiliation here. Bandersnatch regularly does commentary on popular culture by turning it dark. It's kind of the point.

And, again, there's nothing in here that's going to cause people to somehow think Chooseco is involved in this film at all. The trademark claims ought to fail on the lack of any real concern over public confusion. And yet...

The real legal adventure, though, could come in its request for $25 million in damages or Netflix’s profits, whichever is greater, and that the damages be tripled because of the alleged willful nature of Netflix’s conduct.

Supporting the company’s claim that it deserves treble damages is its allegation that the two parties had been in "extensive negotiations" over the use of the trademark in 2016 but that Netflix never obtained a license. Also, Chooseco claims it sent Netflix at least one cease-and-desist letter regarding its unauthorized use of the "Choose Your Own Adventure" trademark in another program.

Every piece of evidence here is weaker than the last, which makes a $25 Million price tag seem a bit too much. Perhaps this is a lawsuit fishing for a settlement to make it go away, but I would hope Netflix digs its heels in instead.

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Posted on Techdirt - 17 January 2019 @ 2:32pm

Supermacs Beats McDonalds To Have 'Big Mac' Trademark Cancelled In Europe

from the mac-attack dept

You may be surprised to find that a search of our story archives involving fast-food giant McDonald's returns pretty scant posts here at Techdirt. Regardless, the company is known to be quite protective on trademark matters, often times using the trademarks it holds to swat at legitimate competition, pretending at potential public confusion that doesn't really exist. Given the size of the company's legal war chest, these bullying efforts are typically successful.

But not always. One victim of this bullying was Supermacs, an Irish fast-food chain with an appropriately Irish name. Supermacs has for years wanted to expand throughout Europe, but was largely unable to due to McDonald's claiming that its trademark registration for "Big Mac", the name of its famous sandwich, meant that any attempt by Supermacs to expand into Europe would cause public confusion. This is typically where the story would end. Instead, Supermacs went on the offensive and decided to try to get McDonald's "Big Mac" trademark cancelled entirely so that it could no longer be wielded as a bully-stick. And, much to this writer's surprise, Supermacs won.

McDonald's Corp has lost its rights to the trademark "Big Mac" in a landmark European Union (EU) case ruling in favour of Ireland-based fast-food chain Supermac's, according to a decision by European regulators.

The judgment revoked McDonald's registration of the trademark, saying the world's largest fast-food chain had not proven genuine use of it over the five years prior to the case being lodged in 2017.

Whoops. So, how did this happen? Well, in large part it appears that the legal team for McDonald's largely phoned its work in, likely not even considering that it had any chance of losing. When the trademark office requested that McDonald's prove it was using its "Big Mac" trademark actively in commerce, the company's legal team offered up some website printouts and got a few people to write testimonials.

The EUIPO said the affidavits from McDonald's needed to be supported by other types of evidence, and that the websites and other promotional materials did not provide that support. From the website printouts "it could not be concluded whether, or how, a purchase could be made or an order could be placed", the EUIPO said.

"Even if the websites provided such an option, there is no information of a single order being placed."

In many respects, this is all a little crazy. McDonald's does indeed sell Big Macs in Europe. Why it couldn't be bothered to put forth some evidence of this beyond printouts of websites is beyond me.

Given that this again all stems from McDonald's wanting to pretend an Irish chain called Supermacs is confusing because of its Big Mac sandwich would cause confusion, even though Supermacs doesn't sell anything called a "Big Mac", makes it hard to feel all that sorry for McDonald's. Instead, it's easy to see this as a huge company tried to play bully then got lazy when called out on it, and now suddenly doesn't have its most famous trademark on the European continent.

Of course, this ruling is so crazy that at least one publication literally thought it couldn't be real and then had to retract it's report denying that McDonald's had lost the trademark:

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Posted on Techdirt - 15 January 2019 @ 8:09pm

Infamous Pinkerton Detectives Claim Red Dead Redemption's Use Of Historically Accurate Pinkertons Is Trademark Infringement

from the seeing-red dept

Take 2 Interactive is no stranger to fighting bogus complaints about "infringement" concerning how it represents characters in its various games. Most of these fights have been over its flagship franchise, the Grand Theft Auto series, where the developer often enjoys poking fun at pop culture and society through settings and characters that are an amalgam of several stereotyped individuals. This has resulted in entitled celebrities and property owners attempting to sue over trademark and publicity rights in the past, with Take 2 typically coming out victorious by pointing out that its work is that of parody and covered by fair use.

This is now happening with a different game but the basic story remains the same. In this case we have the added insanity of a rather infamous company trying to profit off of its infamous history. Pinkerton Consulting & Investigations sent a cease and desist notice to Take 2 after Red Dead Redemption 2 was released due to the game including characters who were a part of the company during ye olde olden times. In response, Take 2 filed suit.

Pinkerton sent Take-Two Interactive a cease-and-desist letter over the characters of Andrew Milton and Edgar Ross, a pair of Pinkerton agents and major antagonists in the game. Now, Take-Two is suing to have the characters declared fair use, arguing that they’re part of Red Dead Redemption 2’s detailed historical setting.

Pinkerton Consulting & Investigations (now a subsidiary of security firm Securitas AB) delivered its cease-and-desist order in December, roughly two months after Red Dead Redemption 2’s release. It commended game development studio Rockstar’s “clear affection” for Pinkerton, but claimed it was trading on the “goodwill” associated with the company’s trademarks, creating a false impression that the game was made by or connected with Pinkerton. The order demands that Take-Two pay either a lump sum or ongoing royalties. But Take-Two contends that Red Dead Redemption 2 — which the lawsuit describes as a “gripping Wild West adventure” and “essentially an interactive film” — is protected by the First Amendment.

Okay, so a lot to get into here. First and foremost, including Pinkerton in a story about the old west absolutely is an obvious aim at being historically accurate. I didn't realize it until reading this story, but the Pinkerton operation around today is the same Pinkerton organization that has a sordid history working with both government and industry specifically to infiltrate, investigate, and ultimately stop the spread of labor unions, while encouraging strikebreaking. The infamous Pinkerton agency goes all the way back to the 1800s and was somewhat notorious for its tactics. The company also was very much involved in investigating and tracking down notorious outlaws such as Jesse James, Butch Cassidy, and the Sundance Kid. All of this, of course, makes their appearance in an old west outlaw game perfectly reasonable fodder.

Take 2 notes all of this in its declaratory judgment suit, along with mentioning all of the other cultural media that includes references to Pinkerton in stories about the old west.

Take-Two notes that the Pinkerton National Detective Agency is referenced in plenty of other Western fiction, and that the agency played a major role in real 19th- and early 20th-century American history. (It was not, however, the inspiration for the Weezer album Pinkerton.) Among other places, Pinkerton agents appear in the 2000s-era TV series Deadwood; the 1980 film The Long Riders; and the 2010 game BioShock Infinite, where the protagonist is a former Pinkerton agent.

Yet, when it comes to the wildly successful game Take 2 released, Pinkerton suddenly wants to lean on trademark law as a way to profit over a historical reality. This is absurd on many levels, including that the use by Take 2 -- much like with its GTA series -- is obviously fair use. On top of that, Pinkerton's claim in its C&D that the public is going to somehow be confused into thinking that Red Dead is the product of, affiliated with, or approved by Pinkerton is laughable at best. I would posit that most people playing the game likely won't know that Pinkerton is a real company, whereas those that do will see it as the inclusion of historical characters that are prevalent throughout the game.

In response to the lawsuit, the Pinkerton folks claim that part of their complaint is that this is a historically inaccurate picture of the Pinkertons, and that it's harming their good will. Given the existing reputation of the Pinkertons from back in the day, it's difficult to see how there is much good will to harm here in the first place, and litigating the reputation of the Pinkertons from the 1800s in the old west doesn't seem like a productive use of anyone's time.

We'll see how the court decides this, but it's quite difficult to imagine works of art having to license history in the way Pinkerton has suggested Take 2 should.

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Posted on Techdirt - 14 January 2019 @ 7:27pm

Music Groups Waste No Time Using Australia's New Copyright Law To Shut Down Stream Ripping Sites

from the intended-consequence dept

Late last year, after Australia proposed amending its copyright laws, which included some subtle language changes, the country approved the amendments and we immediately warned that this would be abused, feature-creeped, and otherwise utilized by the content industries to restrict access to the internet in favor of their own bottom lines. One of the subtle language changes mentioned above consisted of going from allowing site-blocking of sites where their "primary purpose" was infringing activity to allowing blocking of sites where their "primary effect" was infringing activity. This change was an important one, because it puts the onus for whether a site can be blocked on how users use the tool, rather than how it was intended to be used. And, of course, there is simply more subjectivity in "primary effect" than there is in "primary purpose", leading us to warn that this would be abused.

And, a mere few months later, the music industry is in court citing the new law to get approval to have ISPs block stream-ripping sites.

The Federal Court action is being coordinated by Music Rights Australia, with the support of the Australasian Performing Right Association (APRA) as well as Sony Music Entertainment Australia Pty Ltd, Universal Music Australia Pty Limited and Warner Music Australia Pty Limited.

Stream-ripping sites allow users to record and save the audio streamed from a service such as Spotify or YouTube. The services have not previously been the subject of legal action in Australia. (In November, Sony Music emerged victoriousfrom a fight against stream-ripping service MusicMonster.fm in a German court, with the service being declared illegal.)

Now, as we've discussed in the past, the problem here is that there are a ton of legitimate uses for stream-ripping sites. I personally use them all the time to get audio-only for videos made public by educational institutions, by people that do how-to videos, lectures, etc. The primary purpose of stream-ripping sites is not infringement; it's to rip streams, not all of which are infringing. But the primary effect? Well, that's open to interpretation and the Australian government has bent over backwards to give the content industries the benefit of every doubt. Plenty of infringement happens with stream-ripping sites, because that's how users choose to use them. But it's not their purpose.

And yet, because of this poorly amended law, these sites are now staring down the censorship barrel.

35 Comments | Leave a Comment..

Posted on Techdirt - 11 January 2019 @ 7:39pm

Naperville, IL Development Project Forced To Drop Name To Avoid Public Confusing It With City 1.7K Miles Away

from the under-the-bridge dept

Lots of trademark disputes are stupid. Lots of trademark disputes portray a great deal of hand-wringing that is laughable at best. And lots of trademark disputes end up being settled despite not being even remotely valid. But very few trademark disputes have to do with the naming and promoting of commercial developments when the geography that separates them is over 1,700 miles.

But that's the case in the recent news that the City of Naperville in Illinois has dropped the name of its Water Street District development due to a complaint by the city of Henderson in Nevada.

It seems the city of Henderson, Nev., “owns exclusive, nationwide rights” to use the name Water Street District, and fired off a letter to Naperville officials in 2017 after learning the city and Water Street businesses were using the same name to refer to the area where the Hotel Indigo, Sparrow Cafe, Southern Tide and other stores, restaurants and a parking deck are located, according to city documents.

“The letter asserted that the use of that phrase by the city of Naperville and by the Water Street property owner is unauthorized and violates the city of Henderson Redevelopment Agency’s trademark rights protected by registration with the U.S. Patent and Trademark Office in August of 2014,” city documents said.

This is where I remind everyone yet again that trademark law stipulates that infringement only happens in cases where there is real or potential confusion in the public as to the source of a product or an affiliation between two entities. In this case, the two locations concerned are quite literally more than 1,700 miles apart. I know this because Naperville is roughly a seven-iron away from my home, whereas the Nevada dessert is most definitely not. So what possible confusion could be had in this case? None, of course.

Now, Henderson attempts to come off as something of a reasonable good guy in all of this by allowing Naperville and the developer to still name its development Water Street District, but neither can actually, you know, tell anybody that via the normal marketing means.

While Henderson does not have an issue with Naperville’s continued use of Water Street District as part of ordinances previously approved, the settlement between the two cities and the property owner specifies neither will use Water Street District when otherwise referring to the development.

That means the phrase will not appear in newsletters, directories, maps or on goods, such as hats, pullovers, shirts, mugs, beach bags or metal key chains, city documents said.

Which is a shame, honestly. It's understandable why folks roll their eyes at this type of threat and simply cave as the easier option, but it sure would be nice to see some fight from entities so unfairly and absurdly targeted.

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Posted on Techdirt - 10 January 2019 @ 1:57pm

And Now Professional Sports Teams Are Cutting The Cable Cord, Too

from the united-with-the-public dept

In all of our coverage about cord-cutting, we have mostly focused on how the public is in large swaths ditching cable for over the air and internet alternatives. Aside from that, we've also commented on stories where the networks are looking for new ways to measure viewership of their content given all the cord-cutting that has already occurred. The common theme, however, is that cord-cutting is not some fad and is a full on thing among the public.

And also, it turns out, among some relevant companies as well. I've made the point for a long time that professional sports are the last thread to which cable is clinging. Once the larger leagues out there realize that they can just stream games on their own "networks", cable is over. But perhaps it won't necessarily go at the league level. At least in the case of Major League Soccer, one team has decided to cut the cord themselves and go full streaming.

Soccer fans wanting to watch D.C. United this season will not find matches on WJLA 24/7 News, where they were shown for three years. The games won’t appear on NBC Sports Washington — the team’s platform for much of its first 20 seasons — or Mid-Atlantic Sports Network.

In fact, except for select nationally televised matches, viewers will not find Wayne Rooney and United on any standard cable or satellite channels.

That’s because, like millions of Americans, United is cutting the cord and enlisting a pay streaming service for video needs. The MLS franchise said it has signed a multiyear contract with subscription-based FloSports to carry 21 of 34 regular season matches. The remainder will appear on the league’s national TV platforms (Fox Sports, ESPN or UniMas).

So before everyone not into soccer gets into the comments to make the point that soccer isn't the most-watched sport in the United States, yes that's true. On the other hand, the DC United is not some mom and pop sports franchise. As far as soccer goes, DC United has a decent following, as evidenced by their TV contracts. For the team to, on its own, make the decision to go all streaming means it thinks its fanbase will be able to follow the team online just fine without needing a TV screen to do so. This determination is almost certainly correct, given the broader trend in cord-cutting.

“The decision was very much based on what our options were and what was going to be best for our fans to really connect with the team,” said Sam Porter, United’s senior vice president for business and legal affairs. “What FloSports is going to offer is more in-depth coverage and story lines around the team on a year-round basis.

“When you look at all the cord-cutting that is going on, it’s really not as radical as it would have been a couple of years ago.”

The cable companies out there can play pretend that this analysis isn't soon going to fit the views of the more major sports leagues out there if they want, but there is an inevitability here that is palpable. Many have predicted the swift demise of cable television for years and they have been wrong. But sports teams cutting the cord? That's a dark cloud on cable's horizon.

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Posted on Techdirt - 9 January 2019 @ 7:32pm

Facebook Rejects GRIS Launch Trailer For Being Sexually Suggestive When It Clearly Is Not

from the this-is-stupid dept

It should be well understood at this point that attempts by internet platforms to automagically do away with sexualized content on their sites via algorithms are... imperfect, if we want to be kind. The more accurate description is to say that these filters are so laughably horrible at actually filtering out objectionable content that they seem farcical. When, for instance, Tumblr can't tell the difference between porn and pictures of Super Mario villains, and when Facebook can't do likewise between porn and bronze statues or educational breast cancer images consisting of stick figures...well, it's easy to see that there's a problem.

Notably, some of the examples above, and many others, are years old. You might have thought that in the intervening years, the most prominent sites would have gotten their shit together. You would be decidedly wrong, as evidenced by Facebook's refusal to allow Devolver Digital, the publishers of the forthcoming video game GRIS, to publish this launch trailer for the game, due to its sexual content.

Did you spot the sexual content? I know you probably think you did. Or, you at least you think you know what confused the filters, and you probably think it had something to do with the close up on the female character's face.

Well, ha ha, jokes on all of us, because it was this image for...reasons?

Yes, the outline image of a crumbling sculpture is what set off Facebook's puritanical alarms. Now, Devolver Digital appealed this with Facebook, but, amazingly, that appeal was rejected by Facebook, which argued for some reason that it "doesn't allow nudity." Except, of course, there is no damned nudity in the trailer. In fact, there isn't anything even remotely close to nudity. This is about as clean as it gets.

Let's go to the folks at Devolver Digital for a reaction to the failed appeal.

A Devolver representative tells Kotaku “this is stupid”.

I could try to add something to that, but why bother? Facebook filters: this is stupid.

30 Comments | Leave a Comment..

Posted on Techdirt - 8 January 2019 @ 7:33pm

Counterpoint: Maybe Athletes Should Rush To The Trademark Office... If They Play For Teams Like The Dallas Mavericks

from the this-isn't-what-we-meant dept

Over the past several years, we've covered the increasingly trendy practice of professional athletes rushing to the trademark office to register their nicknames and/or catchphrases. From Anthony Davis' unibrow, to Bryce Harper's flippant remarks, to Ryan Lochte channeling his inner bro-ness, up to and including Jeremy Lin's claim on his portmanteau nickname, we've raised our eyebrows at this sort of theory of ownership and protectionism that often times looks to make exclusive money over the coined phrases created by others. This sort of locking up of language was never really the point of trademark law, as we've pointed out, and we've suggested that athletes engaging in this sort of thing probably isn't the best thing for the public, the supposed beneficiary of trademark law.

But perhaps we should introduce a caveat in our stance: if you play for the Dallas Mavericks, maybe you should rush to the trademark office. It seems that Luka Doncic, the rookie star of Mark Cuban's team, has had the trademark rug pulled out from underneath him by his employer.

One person in particular, Mike Pocopio, a development coach on the Mavs' staff, referred to Doncic as 'El Matador' and it stuck.

Now, 'El Matador' and 'The Matador' have both been trademarked by the Mavs' after they registered the names with the United States Patent and Trademark Office.

According to Josh Gerben, the Mavs want the exclusive rights to the name so, should Doncic leave the Mavs one day, he would no longer be able to call himself 'El Matador'.

That seems... pretty shitty? We have a rookie athlete doing a great job for his team, building a reputation for himself that results in a nickname, and then his team goes out to lock that nickname up... for what? So that if Doncic goes elsewhere, the team can reapply that nickname to a new player? Come on. What sure seems more likely is that the Mavericks know that Doncic is a thing in basketball circles and want to be able to trade off of their newest star player's persona to the exclusion of him. Not a great look, honestly.

So, if athletes now want to claim that they are trademarking all of the things because they're afraid team ownership will undercut them in doing so, that seems valid now. Thanks to the Mavs.

12 Comments | Leave a Comment..

Posted on Techdirt - 7 January 2019 @ 3:34pm

Pooey Puitton Proactively Sues The Shit Out Of Louis Vuitton

from the doo-doo dept

All one needs to do to get a sense of how Louis Vuitton, famed maker of bags, views trademark law is do a short review of past stories it's been involved in on this site. What you will come away with is the clear sense of the company as laughably litigious, insanely aggressive in bullying others, and as being entirely devoid of having anything resembling a sense of humor or respect for parody.

And that last bit appears to be resulting in yet another dispute, this time between Louis Vuitton and MGA Entertainment Inc., which makes the Pooey Puitton toy handbag. And, yes, that toy handbag is literally shaped like a piece of poop. Apparently, Louis Vuitton has been making comments to some of MGA's commercial clients that the toy handbag infringes its trademarks, leading to MGA filing suit against LV asking for a declaratory judgement that its parody bag is not in fact infringing.

In a complaint filed on Friday in Los Angeles federal court, MGA Entertainment Inc said no reasonable consumer would mistake Pooey Puitton, which retails for $59.99, for costlier Louis Vuitton handbags.

“The use of the Pooey name and Pooey product in association with a product line of ‘magical unicorn poop’ is intended to criticize or comment upon the rich and famous, the Louis Vuitton name, the LV marks, and on their conspicuous consumption."

All of which puts the Pooey Puitton bag squarely in the category of protected parody. Beyond that, any claim that the public is going to look at the bag as anything other than a joke played on upon LV, rather than having association with the company, is pretty laughable.

But my interest is centered around LV's apparent thinking that anyone is going to mistake a literal piece-of-shit handbag, and think that it was made by Louis Vuitton. That doesn't seem to me to be the kind of claim a luxury handbag maker would want to make, yet here we sit. Or, more likely, the Louis Vuitton folks simply can't help themselves from failing to appreciate the joke and instead have to go the bullying route.

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Posted on Techdirt - 3 January 2019 @ 7:50pm

Everybody Loses After Metal Band And Photographer Get Pissy Over Photographer's Copyright Threat

from the all-this-for-100-euro? dept

In many, if not most, of the copyright disputes we cover here, the stance we take is not typically a purely legal one. Often times, we make mention that one party or another is legally allowed to take the actions it has, but we note that those protectionist actions aren't the most optimal course to have taken. Perhaps the best example of this can be found in a dispute that arose between metal band Arch Enemy and a photographer it had allowed to take concert photos for them.

The backstory here goes like this. Arch Enemy has worked with J. Salmeron, a photographer and attorney, to take photos of the band's concerts. Salmeron then posted those photos to his Instagram account, after which they were reposted both by the band's fans and members of the band themselves. All of that was done without issue. One of the band's merchandise partners, however, used one of the photos of the lead singer to promote the band's merchandise on social media accounts. Finding out about this, Salmeron contacted the company and asked for a 100 euro "licensing fee" in the form of a payment to his choice of charity.

At this point, the issue could have been resolved without any fuss, but things quickly got out of hand. Thunderball Clothing wasn’t planning to pay and reached out to the band, accusing the photographer of making threats. The band and the singer sided with the clothing company and sponsor, arguing that a payment is not required. Apparently, the band’s management is under the impression that the band, fans, and sponsors can use the work of photographers free of charge. In return, they get exposure.

“I would like to ask why you are sending discontent emails to people sharing the photo of Alissa? Alissa’s sponsors and fan clubs are authorized to share photos of her. Thunderball Clothing is a sponsor of Alissa and Arch Enemy,” they replied. “Generally speaking, photographers appreciate having their work shown as much as possible and we are thankful for the great photos concert photographers provide,” the band’s management added.

Now, much of that is true. Photographers do get exposure through channels like this. Exposure for their work generally and, in the music space, exposure to other musical acts to use their services. On the other hand, it really isn't up to the band whether or not to authorize their partners' use of these photographs which are, unless otherwise stated in a contract somewhere, covered by copyright for the photographer. It also is the case that Salmeron's request wasn't exactly unreasonable in terms of the amount or the recipient. This, in other words, is pretty tame stuff in the world of copyright infringement. So... both sides of this equation have valid stances. And, one would imagine, something should have been easily worked out given that.

Unfortunately, it seems every side decided to go full nuclear.

After some messages back and forth, the photo was eventually removed, but the band also made it very clear that Salmeron is no longer welcome at any future gigs.

“By the way, we are sure you don’t mind that you are not welcome anymore to take pictures of Arch Enemy performances in the future, at festivals or solo performances,” the reply read. “I have copied in the label reps and booking agent who will inform promoters – no band wants to have photographers on site who later send such threatening correspondence to monetize on their images.”

And then the responses from many of the band's fans, many of whom do photography work, was to hurl snark at the band and suggest that its stance on copyright for the photographer be applied to the band's work as well. A whole bunch of people tweeted at the band, suggesting that instead of buying their latest album, they would just download it and that the band should consider that free exposure for themselves. Now, that analogy doesn't really hold, of course, but the point is clear.

And so basically everyone loses here. The band has pissed fans. The photographer isn't on the Arch Enemy beat any longer. The merch company had to take the photo down. And, again, all this over 100 euro? Come on.

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Posted on Techdirt - 2 January 2019 @ 3:18pm

Antipiracy Outfits Routinely Claim Copyright Infringement Against Sites That Simply Report When Torrents Are Released

from the just-the-facts,-man dept

Whenever we hear new or renewed calls for more ways for antipiracy outfits and copyright holders to extrajudicially get content and/or sites taken down, there always seems to be one curious omission in the discussion: that antipiracy outfits generally suck at identifying actual infringing content. This is a strange omission, considering that creating ways for content to be taken down without a court's oversight rests the entire reputation for this practice on reports of infringement being accurate. Those of us who have taken to screaming how ripe all of this is for abuse do so because of the collateral damage it causes. Claims to the contrary have to rely on reports generally being accurate.

They aren't. In fact, they aren't even close. It's not going too far to say that antipiracy groups of all entities should be well-suited in identifying piracy. And, yet, they quite often target innocent sites that simply post factual information that does not include pirated files, including sites that do factual reporting on torrent availability. One such site is SweTracker, which focuses on detailing Nordic torrent releases, when they become available, and to whom they are attributed.

While many PreDb-style sites monitor for ‘Scene’ releases using information culled from IRC, SweTracker monitors BitTorrent trackers and publishes information on who won the ‘race’ to put content online first. It does not link to any pirate content whatsoever but anti-piracy companies regularly report the site to Google.

And, yet, SweTracker has been reported to Google hundreds of times in the past year alone as hosting illegal content. These reports have largely flooded in from antipiracy outfits, despite the simple fact that SweTracker hosts no infringing files and instead only reports on factual information. The site's operator mostly shrugs his shoulders at all of this, but also points the general impression he has that antipiracy outfits don't have a clue as to what they're doing.

“My personal experience with [anti-piracy companies] is that they don’t really know how stuff works. They often state that users can download or stream movies directly from SweTracker, but that’s simply not true,” he explains. “But, I try to make life easy and do remove the releases they ask me to remove. They have contacted me via email several times.”

It almost goes without saying that SweTracker isn't some outlier in all of this. It's also worth noting that this sort of harassment doesn't typically end with a sternly worded email. Instead, Google often errs on the side of delisting the links in its search results, and antipiracy outfits often times go to site host providers and try to get the sites taken down entirely.

PreDb.org states clearly on its main page that “There are absolutely NO downloads of copyright-protected works, hyperlinks to downloads, torrent files, magnet links, nzb files or similar content on any part of this web site” but that doesn’t prevent complaints.

Google’s Transparency Report indicates that at the time of writing, PreDb.org has had 2,204 URLs reported by content and anti-piracy companies, with Google removing the links from its indexes approximately 65% of the time.

To be clear, antipiracy outfits are censoring simple factual data in the name of copyright. Whether or not you find the factual data in question interesting or useful is entirely besides the point and doesn't make a lick of difference in the validity of the takedowns. Here we are, fresh into 2019, with rightsholders and antipiracy groups waging a clusterbomb war against piracy as their precision in doing so goes largely unquestioned, all while very real collateral damage is endured by innocent sites.

Keep that in mind whenever copyright maximalists ask for just a bit more power to censor the internet.

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Posted on Techdirt - 26 December 2018 @ 7:39pm

Blizzard's Sudden Shuttering Of Heroes Of The Storm Demonstrates Why eSports Needs Its Next Evolutionary Step

from the the-bit-leagues dept

We've long discussed the explosion eSports has undergone over the past few years. From a largely overseas pastime, eSports has since grown leaps and bounds, with collegiate and professional programs sponsored by educational institutions and sports leagues. Buy in from major media properties in sports has occurred at the same time, including from ESPN. The trajectory of eSports has seemingly moved in only one direction: upwards.

But it was always going to be the case that this progress would eventually hit a wall. Those of us interested in the acceleration of eSports have been looking for symptoms of this wall, unsure of where it would come from. Now we have something of an answer, with a prime example of why eSports needs to undergo its next step in evolution, as demonstrated by the chaos that was Blizzard shuttering its Heroes of the Storm league.

For those of you not in the know, the Heroes of the Storm Global Championship was a massive thing, with hundreds of players, production crews, broadcasters, commentators, and streamers building the whole thing in to a true ecosystem. Started in 2015, the game continued to be developed to support the eSport league. Until a few days ago, when Blizzard unilaterally decided to kill it off.

Last night, Blizzard announced plans to scale down Heroes of the Storm, moving its developers to other games and putting an end to its Heroes of the Storm Global Championship (HGC) esports league. The news came as a shock to hundreds of Heroes of the Storm players and broadcasters, many of whom say they now find themselves out of income streams with no warning.

“We are troubled by the way the announcement was made; namely the impolitic choice to use social media to share such a message that effectively ended the careers of hundreds of players, content creators, casters, production crews overnight - and broke the hearts of countless fans,” wrote Darrie, the general manager of an esports team called Method, on Twitter this morning, echoing the thoughts of many other former Heroes of the Storm players and managers.

Pretty much all the public comments from those involved in the league read something like the above, though many are far angrier and harsher. And you can understand why. Blizzard never gave any indication that the league was in jeopardy and then decapitated it via a blog post. This would be akin to James Naismith disbanding the NBA by literally taking his ball and going home. Such a thing wasn't possible, of course, as the NBA grew as an organic third party league built off of the game Naismith created.

eSports needs to take this next evolutionary step itself. Game publishers can't hold the keys to livelihoods like this, if eSports are to continue to grow in size and popularity. That kind of single point of failure is going to curtail investment, both of the monied and interest varieties. So what could hold this next step back?

Copyright is the likely culprit. The idea of trying to create a third party league out of a video game property, with all of the licensing that would be required, sounds inherently like a full on nightmare. But it absolutely needs to happen. Otherwise, eSports, controlled and siloed by each individual publisher, may just have seen its zenith.

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Posted on Techdirt - 21 December 2018 @ 3:34pm

Canada Outlaws Settlement Threat Letters Sent Through ISPs

from the coming-to-america? dept

Somehow, it seems things move quite quickly in the Great White North. It was only in October that we discussed Canadian ISPs making a great deal of noise over the plague that is settlement letters sent to their subscribers over supposed copyright infringement. In the Canadian system, rightsholders pass along a letter to the ISP, which is then supposed to pass those letters along to the subscriber. ISPs began complaining that its own administrative burden was being repurposed as part of the copyright trolling business model, used to extract settlements purely out of fear. In November, ISPs got their wish, with a proposed law that would amend copyright law to outlaw these letters when they include these types of extortion attempts.

And now, in December, the law has officially passed, bringing an end to threat settlement letters sent to subscribers through their ISPs.

Bill C-86, the Budget Implementation Act, has now received royal assent, so there will be some big changes in the Great White North. Section 41.‍25 of the Copyright Act is now amended with the addition of the following;

(3) A notice of claimed infringement shall not contain:

(a) an offer to settle the claimed infringement;
(b) a request or demand, made in relation to the claimed infringement, for payment or for personal information;
(c) a reference, including by way of hyperlink, to such an offer, request or demand; and
(d) any other information that may be prescribed by regulation.

The text is pretty straightforward, in that it prohibits demands for settlement in the notices themselves or on a third-party site where such a demand may also be available. This is important since some notices contain hyperlinks that not only lead to demands for cash but also undermine subscriber privacy with the use of tracking code.

Now, rightsholders can still send these letters on their own, assuming they can use the courts to unmask ISP customers. They can also include all the offers of settlement they wish. But that's nearly besides the point, since the math in the copyright trolling business model only really works if the troll can get the ISP to act as its clearinghouse. If trolls have to do all of this heavy lifting in unmasking customers and sending these letters out on an individual basis, that changes things dramatically.

It hasn't gone unnoticed, however, that ISPs are still the enforcement wing of this new law.

However, Geist also cautions that the new amendments contain no punishments for anti-piracy companies that fail to follow the rules.

“The key remaining question is whether ISPs will crackdown on non-compliant notices. Since there is no penalty associated with sending non-compliant notices, subscribers are dependent upon ISPs carefully reviewing notices to ensure that they only forward those that fully comply with the law,” Geist notes.

One expects this to be something of a selling point for Canadian ISPs. If they don't have plans to tout their plans to strictly comply with the new law in favor of their customers, they really should have their PR and Marketing folks getting on this with haste. What Canadian citizen is going to want to get internet service from a company that is too lazy to protect its customers by complying with the law?

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Posted on Techdirt - 21 December 2018 @ 3:14am

Filters Suck Out Loud: Tumblr's Porn Filters Flag Tumblr's Examples Of Allowed Content

from the tumble-in-the-sheets dept

As you'll recall, Tumblr recently decided to go the Puritan route with its platform, announcing that it would begin filtering "porn" from its platform. As we pointed out, this was bound to go hilariously wrong, with plenty of innocent content getting swept up in the auto-filters. There were already examples of this, ranging from pictures of cartoons to what looks to be accidental photos people took on their couches. You may have thought at that time that no better example could be found for how dumb auto-filters like this tend to behave.

But Tumblr itself accidentally just provided such an example. Seeking to clarify what is and is not allowed, Tumblr posted a GIF of the kinds of images that would be allowed on the site: artwork, educational material, etc. It all went swimmingly... until others tried to post the exact same GIF to see what would happen.

When Gizmodo posted the gif to Tumblr ourselves, it was immediately flagged as a potential violation and hidden by the platform’s filter. When the images shown in the gif were uploaded individually, two of the four examples—which appeared to show a breast ultrasound and a pro-choice protest, respectively—were similarly flagged and hidden.

And that really should tell you everything you need to know about how effective these types of filters are at completely pooping the bed on their most basic function. That Tumblr did this to itself makes it all the more sweet, particularly when it did so as part of a message that would supposedly clarify things for users of its service.

And, yet, it's not as though the filters will go away. Platforms are incentivized to screw up on the side of over-blocking and collateral damage by misguided legislation that seeks to solve a non-problem but instead only makes it worse. In other words: bang up job all around, guys.

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Posted on Techdirt - 20 December 2018 @ 8:07pm

Games Workshop Likes A Guy's Warhammer Fanfilms So Much It Hires Him To Do An Official One

from the fans-of-fans dept

Being fully immersed in an era of copyright protectionism, it seems that we've become numb to the effects of it in many ways. One of those effects is how fans who create content around their favorite franchises are treated. The basic policy of the entertainment industry towards fan-films and similar creations appears to be that they can either bully those projects out of existence, sue them out of existence, or do one or the other even after confusingly giving tacit approval for such projects. Those are the options in full, as far as most entertainment companies are concerned, while the public looks at those actions and shrugs their collective shoulders. You'll even occasionally hear noises such as, "Well, what did these fans expect?" All this, keep in mind, for the crime of trying to express fandom, and free advertising for the franchise they love.

Well, if you're Games Workshop, the company behind the Warhammer 40k franchise, you react to a dedicated fan who has created great fan-films by hiring him to do his thing professionally.

Richard Boylan wowed us with both Helsreach and Guardsman, short, gripping takes on different pockets of the Warhammer 40,000 universe in both animation and live-action. And it turns out he wowed Games Workshop itself, too, because he’s now helping the company make an official Warhammer animated series.

GW has now unveiled Angels of Death, a new animated series set to release from Boylan and his team in 2019.

It's frankly sad how few media companies take this route, which sure appears to be the optimal one. This is all essentially a combination of encouraging fans to produce otherwise free promotional material for the Warhammer franchise, showing that those efforts might actually be rewarded with paid work if they're good enough, and garnering the kind of positive PR messaging that can only be cultivated organically. Meanwhile, Games Workshop isn't harmed in any way, and in fact continues to benefit. And it gets a great marketing campaign for the film, given that it's produced by a fan, for fans.

It’s cool to see Games Workshop branching out the Warhammer brand like this again—it has tried animated movies in the past, but they’ve been a bit lowkey. Hopefully, by reaching out to Boylan, who’s already proved that he can do great things with animation on a fan’s budget of...well, personal passion, something really cool can come out of Angels of Deathgetting the proper GW seal of approval.

What needs to happen is for this kind of response to become SOP, rather than some weird outlier. If more entertainment companies embraced their biggest fans, rather than trying to bully and sue them, the world would be a more entertaining place.

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Posted on Techdirt - 18 December 2018 @ 8:05pm

Monster Energy Fails Its Attempt To Claim That Its Beverages Are Indistinguishable From Industrial Paint

from the dipsticks dept

One of the things that's always coaxed a wry laugh from me is when there is some trademark dispute between two entities that results in a claim that customers will be confused between two products which, if that were true, would make the plaintiff's product sound really gross. Examples include that time Benihana suggested the public might eat a rap artist thinking it was their food, or when Makers Mark thought that people might somehow mistake its whiskey for tequila, which doesn't say much for its whiskey.

Perhaps Monster Energy saw these and other past examples of this and was all, "Hold my beer.", because it filed a trademark opposition against Monster Dip, which makes industrial paint and coatings.

Monster had filed the appeal with the EU General Court after the European Union Intellectual Property Office (EUIPO), in April 2016, dismissed its opposition to a trademark registered by German resident Marco Bösel. Bösel applied to register a figurative trademark for ‘Monster Dip’ in 2014. The classes covered by the trademark are 2, 37 and 45. These include paints, coating preparations and the painting of vehicles.

Monster opposed the registration, arguing that it would infringe its registered trademarks for ‘Monster Energy’. The Opposition Division of the EUIPO rejected Monster’s claim in April 2016, with the EUIPO also rejecting Monster’s subsequent appeal in February 2017.

As Monster Energy doesn't have trademarks for those classes, all it can really be suggesting is that there would be some confusion in the public that Monster Dip's products were associated in some way with Monster Energy's. And that suggestion sure sounds like Monster Energy suggesting that the public may not be able to tell its energy drink beverages from industrial paint. Which is amazing. I mean, I've had this exact thought for years, but getting Monster Energy to admit as much is deeply satisfying.

Fortunately for Monster Dip, Monster Energy's final appeal to the EU courts failed.

Monster’s most recent appeal was brought to the General Court in July last year, seeking a rejection of Bösel’s registration for the trademark and an order for the EUIPO to pay costs. The court ruled that there was not sufficient similarity in the goods and services covered by each company’s respective trademark to cause confusion over the provider of those goods and services. Affirming the EUIPO’s decision, the court found that the sections of the “relevant public” who would understand the words ‘monster’ and ‘energy’ would also be able to distinguish between the two brands.

The court ordered Monster Energy to pay costs.

It's the last bit of this result that has me so very confused as to why Monster Energy continues to do this to itself.

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Posted on Techdirt - 17 December 2018 @ 7:28pm

Oxford University Gets Opposition To Its Attempt To Trademark 'Oxford' For All The Things

from the before-the-cart dept

Fresh off our post discussing the EU refusing the famous St. Andrews Links golf course a trademark for "St. Andrews" due to that term being primarily a geographical location, we have a similar situation in Europe centering around Oxford University's attempt to trademark "Oxford" for a whole swath of categories. And, just to make what might seem like a banal trademark opposition a little more spicy, much of this has to do with Brexit.

The university wants to trademark the city's name on more than a hundred products from stickers and pencils to DVDs and bibles.

However the move has sparked concern that if granted, makers of maps, tickets, newspapers, journals and 122 other goods could potentially face a bill for using the word ‘Oxford’ in the wrong way.

The application to the Intellectual Property Office has so far garnered three objections.

And that number is likely to grow, with several objectors thus far essentially running to the press in a call to arms for anyone who could be targeted by the university if this application is granted. All of the objections make the same argument: Oxford was a city before it was a university and locking down the name of a city for broad categories such as those requested in the application is a big no-no in the EU. Just like in the case of St. Andrews, this makes sense. If the application is granted, it could be used as a weapon by Oxford University to keep any shopkeeper in Oxford from selling stickers with the word "Oxford" on them. That obviously isn't the point of trademark law.

Interestingly, however, the school already has a trademark in the EU. It probably never should have been granted one. This trademark application is for the UK, as the school attempts to get its business in order in anticipation of Brexit.

Oxford University Press (OUP), a division of the university, lodged the application in October as the world-renowned institution looks to sure up protection of its 'brand' ahead of Brexit.

The university currently has a trademark in the EU, however, if the UK withdraws, as is currently planned in March, a new trademark would have to be sought for the UK.

It would be nice if the UK IPO could handle this better than the EU, actually, and recognize the problems of granting a trademark for a school that itself is named after the town in which it resides.

For its part, Oxford University is making a lot of noise about its promise not to keep people from using the term "Oxford" and to only go after other entities that are "infringing on its rights." That's the whole rub, of course, in that after the trademark is granted, legal teams far too often err on the side of protectionism, including in cases where protectionism isn't warranted.

The EU got this one right with St. Andrews. Hopefully the UK gets it right as well.

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Posted on Techdirt - 17 December 2018 @ 3:28am

South Korea Continues To Criminalize Behavior Around Online Gaming At The Behest Of Video Game Industry

from the give-me-a-boost dept

While we've spent some time here talking about the emergence of eSports and online gaming generally, it's safe to say that South Korea was one of the trailblazers in this space. This has led to a remarkable ecosystem in the country for online gaming and competitive gaming. But it's also led to South Korea introducing some fairly problematic laws at the request of the gaming industry. For instance, criminalizing cheating in online gaming is very much a thing in South Korea, though this is actually done by making it illegal to break a game's ToS, which nobody reads.

Now, however, South Korea is going a much more targeted and direct route by criminalizing "boosting", the practice of experienced players of a particular game contracting their services to help less-able gamers to climb the level ranks.

An amendment has passed in Korea’s National Assembly that could charge players found guilty of boosting with a two-year suspended prison sentence and a fine up to $18,000 (20 million won), according to Korean news site Inven.

The law, an amendment to the Game Industry Promotion Act, was first proposed in June 2017. Working with game developers in the country, the government will target boosters and boosting companies that charge for rank inflation across a number of games, including Overwatch and League of Legends.

This is yet another one of those situations where it's important to fight off the initial normal reaction, which is typically to decide that anything that negatively impacts those cheating within online games is just fine. There is such a thing as overkill, in other words, and assessing five-figure fines for the crime of playing an online game for somebody else so the game thinks he or she is better at it then they actually are should certainly fall into that category.

This isn't to say that boosting isn't a problem for these online ecosystems of course.

Boosting is a problem in games that rank players by skill; artificially inflating one’s rank disrupts the normal flow of play. The business of boosting is complex and far-reaching. A number of Overwatch League players have been punished for past boosting in the league’s first season. Philadelphia Fusion player Kim “Sado” Su-min was suspended for 30 games for the practice, while Son “OGE” Min-seok sat out four gamesfor boosting. Blizzard continues to issue large scale bans against boosters nearly every month.

The problem is that these developers are outsourcing the enforcement of their own platforms to the South Korean government, often to the tune of large sum fines and potential jail time. Does nobody else remember when we were kids and couldn't pass a level in a game, so we handed the controller to an older sibling to get past it for us? That's essentially what this is, with the big difference being that doing so effects the experience and rankings of everyone else playing as well. That's certainly annoying, and no doubt a problem.

But worthy of this kind of litigation? It's hard to make sense of that argument.

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Posted on Techdirt - 14 December 2018 @ 3:45pm

Sony Released Its Playstation Classic Console In A Way That Makes It Eminently Hackable

from the wait-sony? dept

Gamers of a certain age will be very familiar with the insanity from roughly 2010 that was Sony's reaction to having its Playstation 3 console hacked to return functionality that Sony initially advertised and then rescinded via a firmware update. While PS3 owners cheered on the hack, as many of them loved the function that Sony took away, Sony instead began a full on legal war with the Geohot, the hobbyist who gave users what they wanted. The whole thing was a complete mess that made Sony look awful and ultimately resulted in the Playstation 4 of course not having the function that users wanted, and the console being much, much more locked down at release.

I'm going to take a moment again to remind you that this all occurred only roughly 8 years ago. Why? Well, because Sony recently released its Playstation Classic retro console... and apparently made it very, very easy to hack.

The PlayStation Classic was a great idea that was disappointingly executed. Not surprisingly, hackers have been hard at work trying to crack the novelty console as they’ve done already with Nintendo’s NES Classicand SNES Classic.

The job’s been made easier, the hackers claim, thanks to Sony reportedly housing the key to decoding the PlayStation Classic’s firmware on the device itself, rather than utilizing a private key held by Sony. The underlying code that runs on game console is encrypted to prevent people from tampering with it, but in this case the tools to unlock and start changing how the console operates were available to anyone who dug through the code by copying it onto a PC. As first reported by Ars Technica, console hacker yifanlu pointed it out on Twitter late last week in-between streaming his attempts to break open the console’s digital architecture on Twitch. So far they’ve been able to play unincluded PS1 games like Spyro using a thumb drive and are currently working on getting other emulators working on it as well.

Here again we see hackers enabling what gamers wanted out of their Playstation Classic devices, but which Sony failed to provide. The biggest disappointment in the Playstation Classic has been the short game library. By screwing around with the console, tinkerers can enable playing many, many more games. And, given that this is Sony we're talking about that just went through all of this with the PS3, you have to wonder just how much of this was done on purpose, and how much is Sony not having things buttoned up on their end.

“There really isn’t any security on the device at all,” yifanlu told Kotaku in an email. “Sony managed to accidentally include their firmware update private keys on every console.”

If that's true, you have to wonder if another round of stupid of the kind we saw with the PS3 is about to happen. Sony is notoriously protective of its hardware, often leading it down a litigious path. But if the company were to once again attack tinkerers and deprive users of useful features for its product, and did so after so willfully ignoring securing its consoles from this type of thing, that would nearly smack of a honeypot rather than Sony having any true gripe.

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