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We've been talking about the insanity occurring in the beer industry regarding trademark for quite some time now. If you haven't been following along, the short version of this is that as the craft beer revolution has exploded the number of breweries taking part in the industry, so too has it exploded the number of trademark spats within it. In some senses, we should have seen this coming. Given the number of new players in the market with the limited linguistic resources available with which those players could name their companies and products, perhaps it was somewhat inevitable that some of the companies involved would try to lean on trademark law to fend off what they saw as impeding competition with too-close brand names. That said, many of these conflicts fail to live up to the purpose of trademark law, many of them giving barely even a nod towards an actual concern over customer confusion. Instead, protectionism reigns. That seems to be the case in a spat between two Canadian breweries, with Moosehead Brewery claiming that the much smaller District Brewing Company's Müs Knuckle brew is too close in name and therefore infringing of the former's trademark. Moosehead and Müs Knuckle are two breweries in a battle over trademarks. Short version, Moosehead says that Müs Knuckle is too close to their trademark for beer. The idea is that Müs Knuckle could be confused for a Moosehead product, or at least that’s what Moosehead thinks, and that’s why they are going after the smaller, Saskatchewan-based brewery. The case is a bit of a stretch, largely due to a lot of the specific choices that Müs Knuckle has made. The packaging is not very similar outside of the glass used, the Regina company going with a predominantly blue label design in a diamond shape, whereas Moosehead is oval, green, and has a moose as part of the logo itself. The fact that Müs is also deliberately misspelled is another aesthetic choice that works to the advantage of the smaller company, it can be argued that they are trying to distance themselves from their more established competitor by stylizing their name. Left out of the analysis above is the, um, colorful connotation of the term "moose knuckle", the explanation of which I'll allow you to discover for yourself should you need to. What the above should indicate to you is that this trademark action is all about the word "moose", including variations of the word that are entirely made up, such as "müs", which isn't a real word. Beyond that word, nearly everything else to do with the packaging and trade dress is different, save for them both being in a green bottle. Which, you know, how many types of bottles can you use for a beer? So, the question to be answered here is whether customers will find themselves confused into thinking two different breweries selling beer that incorporate differently spelled versions of the word "moose" are actually the same, despite everything else to do with the packaging of the products. Looking at the trade dress of both side by side, I would say the question is easily answered. Confused? Yeah, I didn't think so. In addition to having different fonts, colors, label shapes, names, and spellings, Moosehead includes and image of a moose's head, while Müs Knuckle doesn't include any images of a moose knuckle, because that would be porn. The original post appears to agree. It’s our natural inclination to go for the underdog in cases like this, but in this case it’s the right instinct. The reason is that the Müs Knuckle brand is far enough out from the design and image of Moosehead that it’s clear this is a very flimsy case, as well as a case that is meant to push just how far the larger brand can take their trademark. It’s also a case where the intended purpose of the trademark – reducing consumer confusion – is being used to push competition in the sidelines. A smaller company, Müs Knuckle would have difficulty paying for a massive re-branding, especially as it would have to spend a great deal of effort trying to get their audience to recognize the new name and package. It could be a death blow to a brand that is quietly establishing itself, and a blow caused by a brand that is not substantially similar to the new product. Expect this dispute to meet a quick demise. If not, then good luck to the Canadian brewery industry in developing new brands. Permalink | Comments | Email This Story

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People who have worked for the USTR tend to pretty religiously support any and all new trade agreements, so it seems somewhat noteworthy that the former USTR, and now Senator, Rob Portman, has come out against the TPP agreement, saying that he doesn't think that it's a good deal. There are, of course, a number of caveats here that potentially make this at least slightly less of a big deal than it might otherwise be. Specifically: There's a pretty good chance he's doing this purely for political reasons. He's in a tight re-election campaign for the Senate, and his opponent has been quite opposed to basically any trade deal including the TPP -- and many Ohio residents (i.e. voters) believe (rightly or wrongly) that trade deals mean fewer manufacturing jobs. Portman was also a big proponent of pushing through "Trade Promotion Authority" or fast track, which was seen as a sort of proxy vote on TPP, because it would bind Congress's hands to just an up/down vote on the TPP, without any ability to push back on particular aspects of the agreement. And, Portman also made it clear he could change his mind if the TPP was "improved." Some of the reasons he's given seem to track with those of Senator Orrin Hatch, in complaining that the TPP doesn't go far enough in expanding intellectual property rights, mainly for big pharmaceutical companies (specifically data exclusivity rules around "biologics.") So, it could certainly be argued that his speaking out against the TPP are for suspect reasons (and of suspect authenticity). Still, it is rather incredible that a former USTR would proactively say that they don't support such a major trade agreement, and highlights (at the very least) just how toxic the TPP has become with the voting public. And of course, that should raise some pretty serious questions. If the voting public doesn't support the TPP at all, why are we continuing to pursue it?Permalink | Comments | Email This Story

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The state of Maryland's defense of the Baltimore PD's warrantless use of Stingray devices continues, taking the form of a series of motions unofficially titled Things People Should Know About Their Cell Phones. The last brief it filed in this criminal prosecution claimed "everyone knows" phones generate location data, therefore there's no expectation of privacy in this information. As commenters pointed out, people may know lots of stuff about records they're generating, but that doesn't mean law enforcement should have warrantless access to those records. Everyone Knows… That my Doctors generate medical data about patients, so how about we get their medical records on public display without warrants! With no expectation of privacy, there's no need for a warrant. And with no warrant requirement, there's no chance of having evidence tossed. That's a win Maryland needs, considering the Baltimore PD alone has deployed IMSI catchers several thousand times without obtaining warrants. Everything runs through pen register orders, which both lower the burden of proof and (in many cases) obscure the technology actually being used. Now, it's back with its response to the defendant's motion to dismiss and it's again claiming People Know Stuff, therefore no expectation of privacy. (h/t Brad Heath) After dismissing the defendant's arguments about police use of location tracking devices as "dystopian fantasies," the state argues it's time for the accused (not just this one, but any others facing prosecutions predicated on warrantless cell phone tracking device usage) to stop pretending they don't know how much data their phones are coughing up. While cell phones are ubiquitous, they all come with "off" switches. If a cell phone is turned on, it is receiving signals from cell towers, and sending signals back out to cell towers. The cell site simulator used in this case took advantage of that fact in order to locate Andrews's phone. Because Andrews chose to keep his cell phone on, he was voluntarily sharing the location of his cell phone with third parties. Under the doctrine set forth by the Supreme Court in Smith, supra, he cannot claim a Fourth Amendment privacy right in this case. The "Smith" the state refers to is 1979's Smith v. Maryland, which law enforcement loves to use in cell phone surveillance cases, because: a) it's incredibly outdated, and b) it provides a very broad and favorable reading of the Third Party Doctrine as it relates to phone usage. The state says it's the defendant's own fault he was located. After all, he had a choice. And he chose badly. Andrews complains that the police "invaded" a "constitutionally protected area," and therefore this search triggered Fourth Amendment protections under United States v. Karo, 468 U.S. 705 (1984) and Kyllo v. United States, 533 US. 27 (2001). But in Karo, the suspect was unaware that he had brought a police transponder into his home, and in Kyllo, the suspect was unable to prevent grow-lights (or his body) from emitting heat. Andrews, by contrast, was quite aware that he was bringing his own cell phone into the house. And he was quite capable of turning it off The government's argument, while technically solid when used in conjunction with these precedent-setting decisions (Smith's outdated view of phones notwithstanding), but it becomes completely disingenuous when it describes the "sharing" of identifying phone data. Just as the telephone company in Smith used transmitted phone numbers in a way quite distinct from the way in which the police used them, so, too, Andrews's cell service provider used the ID number broadcast by his cell phone in ways quite distinct from the way in which the police used it. The way in which the information was used does not alter the "expectation of privacy" in the information itself. Smith controls here. Andrews's addition of the adjective "exact" to the noun "location" does not alter that fact. The issue is not whether Andrews was aware that the police could find the location of his cell phone to within 20 yards. The issue is whether Andrews can claim an objectively reasonable expectation of privacy in information which he was voluntarily broadcasting to third parties at all times. Under Smith, the answer is no. There is no Fourth Amendment right to evade a valid arrest warrant. Andrews was wanted on multiple counts of attempted murder. A life "on the lam" may require some inconveniences, such as not staying in one's home, and turning one's cell phone off when not in use. There is no constitutional right to avoid being arrested for one's crimes, and nothing unreasonable about the police using the same information that Andrews was sharing with the rest of the world to apprehend him. The "rest of the world?" Really? Andrews may have been able to talk his cell phone provider into turning over a copy of all the data his phone had generated, but it's not as though the general public has access to this information, expectation of privacy or no. Just because law enforcement can access this information with warrants or (more likely) pen register orders does not make it information "shared" with "the rest of the world." It is not shared indiscriminately and it's only because cell providers are legally compelled to cooperate with law enforcement (CALEA, etc.) that cops can obtain this information with a pen register order, rather than a warrant. And, in this case, the information was not obtained with a court order. There may be a court order on record that would give the impression the BPD would approach a telco for phone records, but the actual collection of Andrews' location info was done with a Hailstorm cell tower spoofer. The state claims the request specified the use of a cell tower spoofer but there's no indication the presiding judge had any idea how much information these devices can obtain. A pen register order refers to a targeted phone number. A cell tower simulator gathers information from everyone in the area. This isn't just a fight over this particular prosecution. This is the state safeguarding its thousands of Stingray deployments. If it's going to be able to keep those prosecutions from falling apart -- now that the BPD's devices are an open secret -- it needs the court to agree there's no expectation of privacy in cell phone location data. And in order to do that, it apparently needs the court to believe everyone using a cell phone is sharing all sorts of information with "the rest of the world." Permalink | Comments | Email This Story

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More sexting stupidity, this time in Michigan. A Three Rivers, Michigan, teenager is both the victim and perpetrator of a sex crime. He might land on the sex offender registry, and face criminal charges, all because he took an inappropriate photo—of himself. The boy is unnamed in local news reporters, which note that he is under 15 years of age. He allegedly took a nude photo of himself on a girl’s cell phone. That girl sent the picture to another girl, who sent it to another. Preliminary charges are pending for all three—the boy was charged with manufacturing child porn, and the girls with distributing it. A prosecutor is still weighing whether to pursue the charges. Hopefully, the prosecutor will realize that pursuing the suggested charges could ruin a few teens' lives. The police detective working the case seems to want to destroy these kids' lives… for the good of other teens, or something. Police Detective Mike Mohney told WBST.com that sexting is a serious crime because it leads to “bullying,” and “real severe things like people committing suicide or violent crimes against others because they're so embarrassed about it.” As Reason's Robby Soave points out, Detective Mohney is a walking contradiction. Apparently, it's never occurred to him that bringing child porn charges against these young teens might result in bullying and suicide. Nothing makes the future look dim and hopeless like a long stint on the sex offender registry. Nothing destroys someone's reputation faster than being listed alongside criminals who manufactured actual child porn, rather than just took a photo of their own adolescent body. For that matter, the preliminary charges make this teen's decision to photograph his own body and send it to another teen a far worse crime than if he'd simply showed up at the girl's house, stripped off his clothes and proceeded to engage in sexual activity with her. Taking off his clothes at her house would have been nothing more than indecent exposure, a misdemeanor. More importantly, unless the person has been convicted for other sexual-related crimes, there's no sex offender registration tied to the charge. Even if he'd pursued sexual contact with the other teen, it still would have been a better outcome than being branded a child pornographer. Michigan has no "Romeo and Juliet" law, so any contact between teens -- no matter their closeness in age -- could trigger statutory rape charges. (Obviously, if the sexual activity was not consensual, this would be actual rape, but there's no reason to believe a [possibly] unsolicited naked photo rises to the level of aggravated sexual assault.) If the activity was consensual, the worst charge would be statutory rape, which does not require sex offender registration for teens. [P]eople who are convicted of criminal sexual conduct based on consensual sexual conduct with children over the age of 13 who are not more than four years older than their victims are not required to register. And, if the sexual contact contained no penetration, no criminal charges would be brought at all. [A] 17-year-old who engages in consensual petting with a 14-year-old could not be prosecuted for a crime. However, if the parties engaged in oral sex, the 17-year-old could face prosecution. So, this so-very-concerned detective has taken a digital photo -- taken by a teen of his own body -- and turned it into something worse than actual in-person nudity and/or sexual contact. That's a pretty fucked up way to show concern for sexting teens. Treating photos taken by minors and distributed to other minors as child porn is the worst possible way to handle a situation that, in all reality, should be left to the discretion of the teens' parents. Permalink | Comments | Email This Story

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Nothing pushes a negative review of your product out of the public eye faster than a lawsuit, am I right? That's the line of thinking Enigma Software has chosen to entertain. It recently filed a lawsuit against BleepingComputer, alleging that its 2014 "review" (actually a forum post detailing Enigma's SpyHunter history as "rogue" software and the deceptive business practices the company has deployed) is defamatory. What would seem to be a mixture of opinion and fact-based assumptions (backed by links to other sources) is portrayed by Enigma as a malicious attempt by BleepingComputer to damage its reputation so the site can push readers to affiliate partners and advertisers. Enigma Software claims in its lawsuit that BleepingComputer has the negative SpyHunter review because it takes part in an affiliate advertising program which grants BleepingComputer a commission for redirecting users to Malwarebyte’s site. The Enigma Software Group claims, “Bleeping not only has unlawfully benefited from its smear campaign to the detriment of ESG, it has damaged the reputation of ESG by refusing to take down its false and misleading statements which have been reposted numerous times on other anti-spyware related forums and websites.” Other computer security sites have already leapt to BleepingComputer's defense. Malwarebytes has donated $5,000 to the site's legal fees and points out that BleepingComputer is not some fly-by-night operation that solely acts as a funnel to preferred vendors. The content is provided by the volunteer efforts of security professionals and the more than 700,000 registered users who ask and answer all questions presented on the site. To summarize, Bleeping Computer is a valuable resource in the efforts to help users live in a malware free world. Over at CSO's Salted Hash, Steve Ragan points out the reputation Enigma claims BleepingComputer is destroying has already been severely damaged by the company's own actions over the years. [T]he lawsuit says, "Bleeping has a direct financial interest in driving traffic and sales to Malwarebytes and driving traffic and sales away from ESG." While that claim is true at face value, the affiliate programs used by Bleeping Computer help keep the website online and they use affiliate links for a number of vendors, not just Malwarebytes. Also, most of the comments that are critical of Enigma Software and SpyHunter exist because the company has gained a bad reputation over the years due to spam, as well as questionable detection rates. Ragan then runs down Enigma's history, including the high number of refunds it's had to hand out to maintain its A+ BBB rating, as well as the years it spent being blacklisted as a security risk by respected anti-virus firms. He also notes, as BleepingComputer did in its disputed forum post, that SpyHunter has never been classified as malware or targeted for removal by competing anti-virus products, but that's apparently largely due to Engima's past litigious efforts, rather than Enigma dropping the more questionable "features" of its product -- like automatic renewals, suspicious scan results and its "pay-to-clean" pricing. (The scan is free. The removal requires a six-month subscription, which will be automatically renewed by Enigma in perpetuity unless otherwise instructed.) The lawsuit is already off on the wrong foot, what with it clearly being filed solely to shut down criticism. While Enigma may find New York's lack of a universal anti-SLAPP statute useful (the current version only protects speech related to the discussion of public permits, and even then, it only protects certain people [bloggers, non-traditional journalists] from SLAPP lawsuits brought by government entities), it's now facing Marc Randazza, who has taken up BleepingComputer's defense. Adding to this is the fact that the specific statements Enigma claims are false and defamatory aren't even directly quoted from the posted review. They're rephrased to put words in the mouth of the forum moderator who posted it. This low-level deception might have made sense if Enigma hadn't included a screenshot of the post it's misquoting as an exhibit in the filing. Here are Enigma's claims, followed by the actual wording used by BleepingComputer. In these posts, Bleeping makes the following assertions falsely and without any reasonable basis to believe that the statements were true when made: That SpyHunter 4 or ESG engage in "deceptive advertising which violates several consumer protection laws in many states"; [The "quoted" statement does not actually appear in this post, or in any of the ones following it in the thread.] ES: That SpyHunter 4 or ESG has a "history of employing aggressive and deceptive advertising"; BC: SpyHunter by Enigma Software Group USA, LLC is a program that was previously listed as a rogue product on the Rogue/Suspect Anti-Spyware Products List because of the company's history of employing aggressive and deceptive advertising. [This claim is backed up by a footnote linking to an outside source that reinforces BC's claim.] ES: That SpyHunter 4 is a "rogue product"; BC: SpyHunter by Enigma Software Group USA, LLC is a program that was previously listed as a rogue product on the Rogue/Suspect Anti-Spyware Products List… BC: SpyHunter is not classified as malware or rogue security software and other antivirus and antimalware vendors do not target it for removal. ES: That SpyHunter 4 or ESG have not cooperated in submitting their program for testing "most likely due to the program's ineffectiveness and high rate of false positives?"; [Again, this "quoted" phrase does not appear in the post, or in any the moderator's posts in the same thread. The moderator notes it has not been tested by other AV firms to determine its effectiveness, but does not make any related claim about false positives or ineffectiveness. The closest thing to it is this sentence, which is clearly an opinion.] In my opinion SpyHunter is a dubious program with a high rate of false positives. [This is backed up by a link to supporting information from an outside source.] ES: That SpyHunter 4 or ESG engage in deceptive pricing; BC: While there are mixed reviews for SpyHunter, some good and some bad, my main concern is the reports by customers of deceptive pricing, continued demands for payment after requesting a refund, lack of adequate customer support, removal (uninstall) problems and various other issues with their computer as a result of using this product. For example, some users are not aware that when purchasing SpyHunter, they have agreed to a subscription service with an automatic renewal policy. [Again, these statements are supported by links to information sources. The addition of "my main concern" clearly shows the moderator is making a statement of opinion based on available information. And the connecting phrase "reports by customers" makes it clear he's making an inference based on statements by others.] ES: That most users of SpyHunter 4 "are not aware that when purchasing SpyHunter, they have agreed to a subscription service with an automatic renewal policy"; and [See the above quote and note, again, that multiple links in the review direct readers to outside sites backing up this statement, like the numerous complaints about this practice found at ComplaintsBoard and the Better Business Bureau.] ES: That SpyHunter 4 is "malware" or "rogue security software" despite not being classified as such by security vendors. BC: SpyHunter by Enigma Software Group USA, LLC is a program that was previously listed as a rogue product… BC: SpyHunter is not classified as malware or rogue security software and other antivirus and antimalware vendors do not target it for removal. [These two directly contradict the assertion being made by Enigma in its lawsuit. The author of the post never states that SpyHunter is "malware" or "rogue security software."] Enigma doesn't have much of a case. But it has just enough of one to be troublesome. It's forced others to bend to its will in the past by aggressively litigating, and it can drain BleepingComputer of time, energy and money just by forcing it to defend itself from ridiculous claims. Permalink | Comments | Email This Story

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Learn all about the art of penetration testing and hacking with the pay-what-you-want White Hat Hacker Bundle. The first two courses in the bundle include tutorials on pentesting Node.js and how to prevent XSS attacks. If you beat the average price ($20.06 at the time of writing), you gain access to five more courses covering WiFi security, ethical hacking, Windows exploits, and more. Ten percent of the profits from your purchase will go towards charity to help make the world a better place. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.Permalink | Comments | Email This Story

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Amid the steady stream of "hot takes" the past few weeks on the legacy of the late great David Bowie, The Washington Post's Robert Gebelhoff dug up some of the rock legend's contrarian views on copyright, if only to rebuke them thoroughly. Gebelhoff's piece cited a 2002 interview Bowie gave to The New York Times in which he prophesied: "I'm fully confident that copyright...will no longer exist in 10 years, and authorship and intellectual property is in for such a bashing…It's terribly exciting." Exciting though it may have been, Bowie's prediction obviously has not come to pass, for which Gebelhoff says we should be thankful. In his piece, he notes that strong copyright laws "play an essential role in our creative economy – and have done so for centuries." He cites as evidence a recent Stanford University/NBER study on how differing laws in Italian city-states led to more operas being produced where copyright was protected. Bowie has long been an innovator and music visionary, experimenting with early ways to use the Internet to "cybercast" concerts and connect with fans. But it's important that Bowie wasn't necessarily seeking the death of copyright (after all, he used it to make a living). Instead, he was paying heed to what digital media already had done to revolutionize copyright-centered industries. What he got right was detecting traditional copyright industry's anxiety – the same anxiety that has led them to push successfully for copyright terms to be extended by nearly 580 percent over the last 200 years. Mickey Mouse famously has enjoyed several retroactive copyright term extensions since Walt Disney's death, though Walt has yet to take advantage of this added incentive. So why would Bowie, whose fortune and fame owed so much to the music industry, be excited about the end of copyright? The answer is straightforward: as a working, successful musician and producer, he knew as well as anyone that unlimited copyright protection could hinder creation, as well as remunerate it. If you're a fan of Bowie's "Young Americans," you know that part of its power as a song derives directly from its unembarrassed quotation of the Beatles song "A Day in the Life." While copyright didn't disappear in the decade since Bowie's interview, Bowie was in many ways right about the impending shakeup of the industry. More and more consumers, particularly millennials, are listening to their music on demand through a streaming subscription, rather than purchasing copies a la carte. Remix has become a central technique for new creativity. And heavy-handed copyright can get in its way. Look, for instance, at what future presidential candidate Kanye West did with Ray Charles' "I Got a Woman." Bowie's vision that "music itself is going to become like running water or electricity" turned out to be pretty accurate. This trend has led to sharply declining revenues from physical sales (except for vinyl, which is doing fine, thanks to hipsters) and a steadily increasing share for streaming. Digital downloads are still popular and continue to represent a major revenue source for now. As physical formats have fallen out of favor, as Bowie perhaps foresaw, the industry experienced a period of sharp disruption. The result has been not just depressed global revenues, but also a whole apparatus of production, distribution and retail falling away. As a 2015 study by Midia observed, the narrative of "music industry decline is a label phenomenon." Which echoes what Bowie saw coming in 2002: "I don't even know why I would want to be on a label in a few years, because I don't think it's going to work by labels and by distribution systems in the same way." Of course, the role of our copyright system is not to protect established industries from disruption. Policymakers shouldn't protect the record store from Apple or the bookstore from Amazon. Our nation's founders gave Congress a mandate to use copyright to "promote the Progress of Science and useful Arts." That is, to provide the carrot to spur artistic creation. If we take copyright "incentives" too far, they can undermine artistic freedom by imposing limits on other forms of creative expression and uses of tangible property. Even the opera study Gebelhoff cites in his piece acknowledges this, as its authors write that "there is no clear evidence" that copyright extension beyond the author's life span creates meaningful incentives. In fact, they suggest it has little effect "beyond the first five years." In an article about the study, New York University law professor Christopher Jon Sprigman notes that: "[this] conclusion is particularly important because our contemporary debate is usually not whether to have copyright at all, but rather whether to extend already very long copyright terms." Bowie was wrong that copyright would end, but he was right that copyright as we know it is under threat. Its foundation, built for an analog age, increasingly struggles to function in the digital one. And its market, warped by decades of heavy-handed government intervention and industry carve-outs, doesn't know how to operate freely anymore. That's why substantial reforms will be inevitable. As Congress slowly moves in that direction, it should be mindful of this lesson: stronger copyright laws don't automatically incentivize more creative freedom. In fact, they often come at its expense. Permalink | Comments | Email This Story

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Earlier this week, we wrote about a legislative attempt in France to outlaw hyperlinking without a license (really), but would you believe that whether or not you can link without a license is still an unsettled matter of law in the EU? As is described in great detail over at the Disruptive Competition Project blog, just this week the Court of Justice of the EU heard a case concerning whether or not linking is legal. We wrote about this case last year, but the court has finally heard the case, with an Advocate General recommendation in early April, and a final ruling in the summer. There was a similar earlier case, the Svensson case, which the EU Court of Justice got right, but there's some concern about this new case. In Svensson, the CJEU concluded that a link is a communication within the meaning of “communication to the public.” But it let the defendant off the hook on the theory that the communication was not “to the public,” because the hyperlinks provided by Retriever Sverige did not communicate the articles to a “new public.” Simply put, the court reasoned that once the copyright holder makes the work available on the web without technical restrictions (i.e., no paywall), then posting a link to the material doesn’t communicate it to any audience that wasn’t already intended by the copyright holder. Thus, it’s fine to link to something publicly posted online, provided it was posted with the copyright holder’s authorization. No further licensing is required. So, common sense prevailed and crisis averted, right? Not so fast. Svensson left a crucial question unanswered, and perhaps that question is already clear: What about a link to something that the copyright holder didn’t authorize? For example, what if you post a link on social media to a Buzzfeed article where one of the images that appears in the story wasn’t properly licensed from a photographer, or you link to a leaked document? And where does that leave search engines and other information location tools, which can’t very well determine whether every image, video clip, or article on the websites to which they link has been authorized by the relevant copyright holders before providing you a search result? This is the question that is before the CJEU in tomorrow’s GS Media case. The defendant is a popular Dutch blog that posted links to photos meant for publication in the Dutch version of Playboy magazine, but which were leaked on an Australian server. No one knows who posted the photos to the Australian server, but everyone agrees that the blog only posted links to them. But, of course, if the ruling says that such links are infringing, it could create a huge mess. Any link to unauthorized work could be deemed, by itself, to be infringing. And, the rule would apply to any link accessible in Europe, meaning it would impact people around the globe. If the CJEU rules that every web user, in Europe and beyond, is expected to verify the copyright status of every item on a page before linking to that page, it could effectively destroy the web as we know it today. Would you have to repeatedly check back on the sites you link to, in case the content on the site you linked to has changed? Would you need to confirm that their licenses are all paid in full? Would you also have to verify the copyright status of links on the pages that you’re linking to? If any of this were the case, social media, search, blogs, comment sections, online journalism could be faced with unmanageable legal liability. Hopefully, the EU Court of Justice recognizes the ridiculousness that would result from such a ruling, but until this summer, we just won't know.Permalink | Comments | Email This Story

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According to a recently-filed lawsuit, the media is apparently every bit as "helpful" as law enforcement when it comes to the responsible, logical handling of teens and sexting. Confusing "hurting" with "helping," Colorado's KOAA allegedly exposed not only the name of a teen involved in a sexting incident, but also the part that puts the "sex" in "sexting." The station, KOAA TV, aired footage of the boy’s erect penis during a news report that was put together after his father’s girlfriend approached producers about an alleged blackmail attempt, according to a complaint filed Friday in U.S. District Court. Producers were told on Feb. 24 by the woman that someone had tried to blackmail the teen, now 16, using sexually explicit material. That same day they arrived at the family house in Pueblo, Colorado to investigate the claims and interview the boy’s father, Elijah Holden. While on assignment, the suit alleges that the news team collected screenshots from the teen’s Facebook page, as well as images from the YouTube page where the blackmail video had been uploaded, to be used in their coverage. The plaintiff and his father both asked that the name “be kept confidential through any report presented by Defendant KOAA,” attorney Matthew Schneider said in the filing. Since law enforcement largely seems to feel sexting = child porn, the station should have found itself under investigation for distributing child porn. Instead, the only negative result of its allegedly terrible editorial practices so far is Holden's lawsuit. Holden is seeking damages related to the outing of his name and sexual organs, with damages sought clearing the $1 million mark. In its defense, the station had this to say: “Through a series of stories during the last several years, KOAA has informed its viewers about the dangers of sexting and cell phone security,” KOAA president and general manager Evan Pappas said in a statement to Courthouse News, where the suit was first reported on Tuesday this week. “At the specific request of the victim’s father, we ran a story two years ago about his son being blackmailed over a cellphone video.” Well, I guess nothing better illustrates the dangers of sexting more than irresponsibly splashing a minor's name and penis all over the TV screen. Of course, considering these were tied to blackmail allegations by an adult, it would seem more -- much more -- discretion would have been in order. Instead, the TV station went the other way, displaying the name of the minor involved over a screen cap of his penis and topped it off by dragging his social circle into the mess. The station claims the allegations are unsubstantiated, but there's really no excuse for using a minor's name -- even if the guardian gave permission to the news outlet to do so. But going past that, how does the station hope to explain its use of an explicit photo of a minor in a publicly-broadcast news report? According to the lawsuit, something that could be considered child pornography somehow made its way past internal censors and ended up on the evening news. Defendant KOAA aired the thumbnail image of the YouTube video depicting Plaintiff's erect penis and his name as a part of the story shown on February 24th 2014. While journalists have played an important part in exposing ridiculous prosecutions of sexting teens, there's no denying the lurid nature of the subject matter is also beneficial to the entities covering the stories. The implicit suggestion that YOUNG NAKED TEENS lie just beyond the next commercial break attracts additional viewers. This additional motivator might explain the apparent lack of discretion on the part of KOAA. As of now, what we have is a news agency that claims it broadcasts these stories to educate the public on the dangers of sexting while apparently feeling compelled to drive that point home through its own actions. Permalink | Comments | Email This Story

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Nothing does more damage more quickly to your community than deciding to place your fear of piracy over the the concerns of those who've already paid for your product. DRM is rarely, if ever, the answer. And yet, it remains an inexplicably popular "solution." Daz 3D, which produces 3D art software as well as assets for use with third party software, has decided to do something about its perceived piracy problem. Last November, it had this to say: [W]e feel the best way to fight piracy is make the convenience of doing something legally more so than the inconvenience of pirating. That is why we made finding, downloading, installing, and loading content in Studio as streamlined and easy as possible while making getting a pirate-able copy of the original product harder. The solution to the problem, according to Daz 3D, was to have the software "phone home" at least once to obtain a key for content/software files, which would only arrive in encrypted form. Supposedly, this would be limited to once per computer but the new, encrypted files would pose problems for existing users. Those on older versions of Daz's software would be unable to access any new content. Transferring old data could also result in problems -- something Daz acknowledged in a later post, noting that scripts and tools might not work with unencrypted content. At the time of the announcement, no plan was in place to provide offline users with authentication keys, nor would it be possible to purchase new content without running through Daz's "Connect" service, which not only authenticates users but "assembles" newly purchased content for use with Daz software. Daz did the right thing and put its proposals up for discussion. This generated dozens of pages of comments, many of which were from users opposed to the addition of DRM. Some were concerned about the Daz Connect DRM breaking content they'd already paid for. Others simply didn't like being treated like pirates when they'd actually paid for software and add-ons. Daz's representatives were active in forum discussions and very straightforward about their reasons for looking into instituting DRM. The company is hoping a few extra installation hoops and another layer of authentication would deter casual pirates, leaving them only the diehard crackers interested in "capturing" a niche "market." The willingness to listen and participate in the discussion separates Daz from many other companies who've added DRM to their products. Unfortunately, it appears the discussion had little effect on Daz's final decision. The post may be titled "You've been heard," but the content contained in it indicates the listening was little more than a formality. Daz will be moving ahead with its original plan, despite customers making it clear they'd rather have a product that doesn't introduce compatibility problems. Nor do they want to be limited to a single distribution system. And they're less than thrilled about the "phone home" requirement. The new post, delivered four months after the original announcement, changes nothing about the DRM structure. While it does add some fail-safe measures (like third-party escrow that will prevent users from being locked out of their purchases if Daz goes out of business), the end result is still the same. DRM is coming to Daz and there's nothing users can do about it. Currently Daz Connect gives customers the ability to install (among other things) encrypted content. Daz Connect also lets customers retrieve a Key to decrypt their content. Customers have raised the concerns of: What if Daz is not available to provide the keys anymore, chooses not to, or starts charging an additional fee to get a key for previously purchased content? Solution: We have developed and fully tested a utility which will decrypt, and save in non-encrypted formats, Daz products on a customer’s computer. We are also working out details with a software escrow company who will provide this utility to the public free of charge in the event that Daz is no longer in a business position to, or is unwilling to continue offering this as a free service. This will also be added to the Daz EULA to ensure customers of our commitment to enable them to always be able to use content that they have purchased a license for. Obviously this does not address other issues such as scripts and tools that work on un-encrypted content. But those are solved in other ways. We are working (and will continue to work) with developers who have this need, in order to show them how to do it with encrypted content. Apparently, "hearing" actually means ignoring concerns people expressed, including portability from older versions of Daz's software. And, as is nearly always the case when DRM to added to a previously DRM-free product, the company is presenting it as a win for paying customers. Is the encryption associated with Daz Connect essentially Digital Rights Management (DRM)? We strive to add great benefits to being connected while limiting the impact to the user experience. Although we have included file encryption to protect our artist community, the primary target is to provide a better experience for our users. Daz Connect delivers and updates products more efficiently but relies on the fact that files are in a location and format that is maintained by the application. In this sense, Daz Connect provides some measure of digital rights management. So, Daz is thinking of its customers while simultaneously willing to ignore those customers to institute something it thinks will decrease piracy. While I can appreciate the fact Daz wants to protect its bottom line, it needs to be aware that instituting these new restrictions will result in actual lost sales -- something that may ultimately prove more harmful than the theoretical lost sales Daz attributes to piracy. Permalink | Comments | Email This Story

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We've mentioned some advances in fusion energy research not too long ago, and it looks like Germany is ready to take a few more baby steps towards figuring out how to control insanely hot plasma. Still, we're a long way from plentiful fusion-generated electricity (not counting solar), but if we want to stop burning fossil fuels, we're going to need to do some more research. German Chancellor Angela Merkel flipped the switch on the Wendelstein 7-X stellarator to start testing its experimental plasma conditions that could lead to a fusion generator someday. Germany has spent over a billion euros and two decades building this experimental device which will never actually generate more energy than it consumes. Let's hope they learn a lot from this facility -- and maybe we'll have a new source of clean, convenient energy in a few more decades. [url] Nuclear reactors using fission (not fusion) are relatively expensive compared to other sources of energy. The history of small or modular nuclear reactors also suggests that there's not much advantage in small scale nuclear power plants. Dealing with radioactive waste also just scares people away from fission, too. [url] If Back To The Future taught us anything, it's that a lightning strike has enough energy to send a car through time itself -- if you only knew where lightning was going to strike. Unfortunately, 1.21 gigawatts isn't as useful as you might think, and capturing the energy of a lightning bolt doesn't get you all that much energy (unless you could do it continuously somehow). [url] After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.Permalink | Comments | Email This Story

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We've been talking about and asking for ECPA reform for many, many years, and it might finally be moving forward. ECPA is the Electronic Communications Privacy Act, which details how the government can get access to your electronic communications. The law was written in the early 1980s, and as you've probably noticed, we live in a very different world these days as it pertains to electronic communications. One key example: the law says that messages left on a server for more than 180 days are considered abandoned and can be searched without a warrant. That may have made some sense (though, not really) in a client-server era, where everyone downloaded their messages leading to them being deleted from a server, but it makes no sense at all in an era of cloud computing. The main foes against updating ECPA have been government agencies that have investigatory powers, but not the ability to get a warrant -- mainly the SEC and the IRS, with the SEC being the real stumbling block. The SEC really liked the fact that it could snoop through emails without a warrant. So, even with massive support in Congress, ECPA reform never went anywhere. So it was a bit surprising to folks this week to see Rep. Bob Goodlatte announce that the Judiciary Committee will now markup the ECPA reform bill, meaning that the bill is moving forward again. It's not entirely clear why it's happening now, but at the very least, it sounds like the SEC's constant protests may no longer be an obstacle. Hopefully it does move forward, and whatever results from the process leads to much stronger privacy protections on electronic communications, such as actually requiring a warrant, like the 4th Amendment says should happen.Permalink | Comments | Email This Story

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NBC has made its views on piracy quite well-known over the years. For instance, we all know that it thinks that piracy is the most horrible damned thing that exists on this planet, so much so that it would please like ISPs to act as its personal police force. Oh, and because NBC also just cares so much -- could we all just have our kids take a break from learning about stuff to listen to how awesome copyright is for a while? Also, however, piracy is pretty sweet when it's convenient for NBC, or when it doesn't want to bother coming up with its own images for its websites. And so it goes, with NBC recently on the receiving end of a copyright suit over The Today Show's use of a photographer's work, not only without permission, but while happily giving credit to the wrong party on top of it. Photographer Alexander Stross filed a lawsuit at a Texas federal court accusing the Today Show of infringing his work through multiple venues. In the complaint (pdf) Stross explains that a series of photos he took of micro houses in Texas gained mainstream new attention earlier this year. It was also covered in a segment of The Today Show, reaching an audience of millions of people. However, the photos shown on air were used without permission from the photographer. In addition, one of the photos was posted in a tweet without attribution, which is still online today. A day later this coverage was followed by an article on The Today Show website, again featuring the infringing photos. To make matters worse these were credited to a third party. The credit on the photograph on the website went to Matt Garcia Design, the architect of the house, which is not of course how copyrights on photographs work. You would think this is something that NBC would know, seeing as how it is the arbiter of all things copyright, to the point that it insists on being consulted on how copyright is taught within our schools. Oh, and The Today Show actually mentioned Stross as the photographer who produced the photos in its segment, so there's that. When Stross learned of the use, he first attempted to contact NBC, but received no response. Then he tried again, and was likewise ignored. It took Stross hiring a lawyer to get NBC to respond in any way. NBC then attempted to say it had gotten permission to use the photographs from the architect, except its evidence of this seems to indicate it only attempted to do so after the infringing use. When contacted by counsel, Defendant claimed to have obtained the Photographs - and advance permission to use them - from architect Matt Garcia. Upon information and belief, neither is true. Rather, correspondence provided to Plaintiff by Defendant, reflects the following: • On May 8, 2012: Amy Eley -- a producer working for Defendant -- requested press materials and photographs from Mr. Garcia, who replied that he had a photo shoot coming up, and asked her to wait until they were finished. There appears to have been no further correspondence between Ms. Eley and Mr. Garcia. • At 2:17 p.m. on May 12, 2015: after Defendant ran the On-Air Segment; after it posted the Tweet; and after it published the Web Article -- a freelance writer named Julie Pennell contacted Garcia and informed him that she was writing a piece on the houses for Today.com. She asked if new photographs had been taken, and whether she could use them (failing to advise Garcia that Defendant had already used the Photographs). Garcia informed Pennell that the scheduled photo shoot had been cancelled, and asked if she would like copies of other photographs that he had -- which happened to be Stross’ Photographs. None of that seems to equate to permission to use the photographs offered by Matt Garcia Design, which doesn't really matter since the architect doesn't hold the copyright for the photographs. To be clear, NBC may have a reasonable fair use defense here, but that's not what it claimed when originally approached at all (though it likely will in the lawsuit). And given NBC's past insistence on being purely copyright maximalist (and even fighting back against fair use at times), it's yet another situation in which a company or individual who attacks others screaming copyright infringement may not actually have cleaned up its own house first. Look, it's quite easy to commit copyright infringement. People do it all the time, often without ever even realizing it, as they go about their days doing their jobs and living their lives. But NBC simply can't put itself out as the copyright police -- or even suggest that it's somehow "easy" for others to properly recognize what's infringing and what's not -- while at the same time finding itself on the defendant end of these kinds of lawsuits. And that's really the key point here. Copyright maximalists like to assume that infringement is a black or white issue, that it's obvious and that it's obviously "bad." But, almost without fail, we find examples of copyright maximalists being accused of infringement themselves. And that's because it's not at all easy to detect, and quite easy to infringe without realizing it. And when you can so easily accidentally break a law that can lead to massive damages, it certainly suggests that perhaps it's time for reform. But, somehow, I'm betting that NBC Universal will continue to push in the other direction, even as it faces down this lawsuit. Permalink | Comments | Email This Story

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We're back again with another in our weekly reading list posts of books we think our community will find interesting and thought provoking. Once again, buying the book via the Amazon links in this story also helps support Techdirt. As we discussed yesterday, the TPP was signed by all participating countries yesterday in New Zealand (though there's still a big ratification fight required to make it matter). We have lots of issues with the TPP, many of which we've raised over the years -- but the first issue that drew our attention to it was the intellectual property chapter. For years, we've questioned how it could possibly make sense to include intellectual property in a so-called "free trade" agreement, as intellectual property is the exact opposite of free trade. It's a government granted monopoly and restriction on the movement of information. And, yet, in the past two decades, basically any international trade agreement has included sections concerning intellectual property. How did this happen? Well, that's the subject of the book on today's Techdirt Reading List: Information Feudalism: Who Owns the Knowledge Economy?, by Peter Drahos and John Braithwaite. The book, which came out over a decade ago, is a detailed accounting of how a bunch of legacy industry lobbyists -- including those from Hollywood, the pharmaceutical industry and the tech industry -- figured out how to convince trade officials around the globe that stronger intellectual property enforcement was a "free trade" issue. And they did so almost entirely behind closed doors, and without most people (even those who are focused on intellectual property issues) being fully aware of what was happening when it was happening. These days, at least, there's a lot more awareness of what's happening, and activists and newer innovative tech companies (rather than old school legacy tech companies) are paying much closer attention. But the seeds of what these legacy industries put in place decades ago live on, dangerously, limiting innovation, keeping the cost of medicines and information artificially high, and laughing all the way to the bank while the public suffers over and over again. We owe it to ourselves to understand how this happened, and Information Feudalism is an enlightening, if frustrating, book for those who want to fight back and stop this dangerous process.Permalink | Comments | Email This Story

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The Russian block party continues. The government agency in charge of censoring the internet is still working its way backwards, hoping to erase the collective memories of the web… or at least, keep Russian citizens from seeing certain bits of the archived past. Last summer, Russia blocked the Internet Archive's "Wayback Machine," an extremely useful tool that allows users to see historical snapshots of websites. The government may only have intended to block a single page, but because the Internet Archive utilizes HTTPS, the only practical way for ISPs to block the targeted pages was to block it at the domain level. The same thing is now happening to archive.is, another useful tool that allows users to archive pages they feel might be altered or disappear altogether at some point in the future. (via Google Translate and an anonymous TD reader) Roskomnadzor introduced archive.is service to Internet resources registry, prohibited by the law of the Russian Federation. On the site supervisory authority pointed out that archive.is entered in the register by order of the Federal Service for Drug Control 28 January 2016. Service continues to work as usual, but for many Russian customers of providers it is no longer available. The problem here is the Russian's take on the War on Drugs. Because it's illegal to discuss drug use/abuse/sales, Roskomnadzor has disappeared another archive that might contain copies of pages it's blocked in the past. That the service would be of use to Russian citizens for non-drug related purposes appears to be of no concern to the Russian government. And again, it's the use of HTTPS that's resulted in the entire site being blocked. Targeted pages can't be targeted if the connection is encrypted. So, down goes the entire site and, of course, no one in the web censorship body seems to be bothered by the collateral damage. Permalink | Comments | Email This Story

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We first wrote about this issue in 2014, but the only known video recording of the very first Super Bowl only exists because a fan taped the TV broadcast, back in 1967. Now, as we're about to have the 50th Super Bowl, the fight has not only continued, but according to a NY Times article, the fight has been getting nastier. That NYT article also, for the first time, names the guy who has the tape: Troy Haupt, whose father went into his office and recorded (most) of the game, believing such a tape might be valuable some day. For the past few years, all anyone knew was that a lawyer named Steve Harwood claimed to represent an anonymous client whose father had taped the game. The game itself had been shown on both CBS and NBC, but back in those days, archiving stuff wasn't a big deal, and neither broadcaster kept a copy of the tape. It wasn't that long before people realized that might be a mistake and by then there was nothing left (as far as anyone knew), and many argued that it was one of the great "lost treasures." It was only after a 2005 Sports Illustrated article that talked about the fact that the video was lost, that a friend had reminded Haupt of the video in his mother's attic. And, then, of course, came the copyright fight. The NFL (as it has a habit of doing) insisted that it, and it alone, held the copyright on the video, and Haupt would be infringing on its copyright if he tried to do anything with the video. Of course, Haupt and his lawyer still held the physical tape (which they had restored by the Paley Center, and stored in a place to keep it safe). And thus, we get to the difference between the copyright on the content, and the ownership of the physical item. Haupt asked the NFL for $1 million for the tape -- the price that Sports Illustrated had estimated such a tape might be worth. The NFL offered $30,000. And then there was a stalemate, with neither side budging for years, and the NFL constantly threatening a copyright lawsuit should Haupt do anything with the tape. With the 50th anniversary, Haupt thought that maybe the NFL would finally be willing to deal... but instead, the NFL showed a totally different video of Super Bowl 1 that was not the video of the actual broadcast. Instead, they went out and found a large number of "clips" from other sources, and patched it all together, claiming it's the entire game, even if it appears really disjointed. Apparently, now that the NFL (which makes billions) has its "tape," it wants to be even more ridiculously petty towards Haupt. According to the NY Times: And last week, Haupt was angry about another turn in the dispute. CBS backed out of a plan to interview him for a Super Bowl pregame segment that would have used a few minutes from the game. It had agreed to pay him $25,000 and give him two tickets to the Super Bowl. A producer was preparing to watch a restored, digital copy of the game at the Paley Center. A crew was ready to go to Manteo. He was going to tell his story, and perhaps the league would listen. “It was my right to tell my story, and they were paying me for it,” Haupt said. But according to his lawyer, Steve Harwood, the deal collapsed when he was told that the N.F.L. had ordered CBS not to pay him. Just when you think the NFL can't get more petty, it does exactly that. Even more bizarre is that according to the NY Times, the NFL is insisting that Haupt isn't even allowed to sell the physical tape to someone else: Haupt owns the recording but not its content, which belongs to the N.F.L. If the league refuses to buy it, he cannot sell the tapes to a third party, like CBS or a collector who would like to own a piece of sports history that was believed to be lost. He would like to persuade the league to sell the tapes jointly and donate some of the proceeds to their favorite charities..... This is bullshit, and hopefully Haupt's lawyer has explained to both Haupt and the NFL that this is bullshit. The First Sale Doctrine still exists in the US, and it's the reason that you can sell a copy of a physical book or painting without first getting permission from the copyright holder. The First Sale Doctrine separates the copyright from the tangible thing. So he absolutely can sell the tape, despite what the league and the article claim. But, even then, the NFL seems to make bogus copyfraud arguments, saying that if he does sell the tape, and the contents leak somehow, Haupt would be liable for any such release. But that is unlikely to happen. A letter from the league to Harwood last year provided a sharp warning to Haupt. “Since you have already indicated that your client is exploring opportunities for exploitation of the N.F.L.’s Super Bowl I copyrighted footage with yet-unidentified third parties,” Dolores DiBella, a league counsel, wrote, “please be aware that any resulting copyright infringement will be considered intentional, subjecting your client and those parties to injunctive relief and special damages, among other remedies.” Again, it's not clear that this is true. The purchasing party may very well be liable for any infringement that results, but Haupt should be in the clear once it's sold, so long as there's no evidence that the sale was simply a sham to get the video released. Bizarrely, the NY Times quotes a copyright law professor claiming that the NFL is actually correct here: The law favors the league, said Jodi Balsam, a professor at Brooklyn Law School. “What the league technically has is a property right in the game information and they are the only ones who can profit from that,” said Balsam, a former N.F.L. lawyer. As David Post notes at the Washington Post, Professor Balsam is either woefully misinformed or was misquoted, because of course, you don't get to copyright "game information" at all. Merely the specific expression which was the broadcast. In fact, cases revolving around data (such as scores) and factual information (such as names and stats) have come down quite clearly saying that the league does not own "game information." And I respectfully suggest that Prof. Balsam gets her copyright law wrong (or was misquoted) when she says that “the law favors the league” and that “the league technically has is a property right in the game information and they are the only ones who can profit from that.” The league doesn’t have a property right in “the game information” at all. [There’s another case squarely on point that discredits this idea, too — NBA v. Motorola from the Second Circuit (105 F.3d 842, 1997)]. The “game information” — who won, who lost, how many passes Bart Starr threw, how many time Kansas City ran running plays, the sequence of plays that led to Green Bay’s final touchdown, etc. etc. etc.] — is not protected by copyright at all; only the broadcast is protected. And there is nothing in copyright law that says that only the NFL can “profit” from that — Haupt is entitled to get as much money from selling his copy as he can. There's also a separate issue that I haven't seen reported anywhere, which seems like it should be relevant. The game was in 1967, which was under the 1909 Copyright Act, which required registration ("formalities") in order to get the copyright. And, while it's quite likely that CBS and NBC, who both broadcast the game, likely had a deal in place with the NFL where the NFL retained the copyright, there's a question of whether or not the NFL actually did register that copyright in the first place. It's entirely possible that, given the fact that no one actually thought it was worth keeping a copy of the video, that similarly no one thought it was worth it to register the copyright. And that leads us to the final point. The NFL itself apparently couldn't have been bothered to keep a copy of the video of the game itself, which is what makes the resulting situation particularly egregious and ridiculous. To claim ownership over the thing that you totally neglected to the point that you thought no longer existed seems ridiculous. It also raises the question of whether the NFL abandoned the copyright, even if it did register it. Copyright abandonment is a defense that someone accused of infringement can make, arguing that the copyright holder deliberately abandoned the work (leaving it in the public domain). Abandonment can be tough to show, however, since it requires showing that the copyright holder intended to abandon the copyright and performed an "overt act" to make it happen. You can argue that the intent was there in the failure to keep a single damn copy -- but is that an overt act? Usually the "overt act" is seen as something like a declaration that the work is in the public domain. That obviously doesn't exist here. But, still, hopefully in the end people can recognize just how messed up copyright law is that it would reach this kind of stalemate, in which the public is deprived of such a historic event.Permalink | Comments | Email This Story

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Protect yourself from prying eyes and malicious websites all while hiding your IP address with ZenMate VPN. For $49, ZenMate Premium offers browser data encryption, the ability to easily switch between 11 countries, and the promise of fast internet connections. It works across all of your devices (desktop and mobile) and across a variety of popular and more obscure browsers. Browse to your heart's content knowing that your activity is hidden and secure. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.Permalink | Comments | Email This Story

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Every year about this time, it's become a running joke what the NFL tries to do in controlling who says what about the Super Bowl. It's gotten to such absurd levels that I've taken to calling it "The Game That Must Not Be Named." Setting aside the insanity that is having ICE go piracy hunting just prior to the game to make sure that nobody can see the product outside of the official channels, the NFL also enjoys pretending like it can control how advertisers refer to the sporting contest. The key aspect of the NFL's demand is that nobody can use the term "Super Bowl" in advertisements unless the company is an official sponsor. That, of course, isn't even remotely true, but pretty much everyone buying ads bows at the NFL altar. This has also given birth to creative ways for advertisers to poke fun at the NFL for being such asshats, such as the Newcastle Brewing's lovely entry a few years back, when it produced an advertisement about an advertisement it didn't make, in part because the NFL wouldn't allow them to say "Super Bowl." Well, the tradition continues, it seems, with Key and Peele promoting Squarespace by setting up a website to do "Game Day Live Commentary", called Real Talk, with a timer countdown that appears to coincide with a big sporting event occurring this weekend. Notably absent at their site, with all kinds of information about what they're going to be doing in terms of "sports commentary" on a "football" game, is any mention of the phrase "Super Bowl." Because... the NFL. They even give a shoutout to this insanity in one of their promos. While it would be easy to let frustration dominate while thinking about how the NFL's overbearing stance has given rise to any of this, instead let the futility of it all sink in and enjoy a laugh at the NFL's expense. Does anyone not know what Key and Peele are referring to? Of course not. Anyone confused as to what the timer at the top of the page is counting down to? Nope. Is there anyone at all that gives even a moment of thought to differentiating which ads feature the term "Super Bowl" and which use some stand-in term to dance around it? No, dear friends, there is not. Meaning that the NFL has accomplished exactly nothing, other than to create an atmosphere where the advertisers they want to become sponsors choose instead to gain attention for themselves by mocking the NFL's attempt at protectionism instead. That isn't exactly the Streisand Effect, but it's something similar. Permalink | Comments | Email This Story

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We've discussed for years that as an apparatus directly tied to the wallet of the cable and broadcast industry, TV viewing tracking company Nielsen has gladly helped reinforce the cable industry belief that cord cutting was "pure fiction." Once the trend became too obvious to ignore, Nielsen tried to bury cord cutting -- by simply calling it something else in reports. And while Nielsen was busy denying an obvious trend, it was simultaneously failing to track TV viewing on emerging platforms, something the company still hasn't fully incorporated. We've also been talking about how ESPN has been making the rounds, trying to "change the narrative" surrounding cord cutting to suggest that worries about ESPN's long-term viability in the face of TV evolution have been overblown. Part of that effort this week apparently involved reaching out to Nielsen to demand the company fiddle with its cord cutting numbers, which ESPN then peddled to reporters in the hopes of creating an artificial, rosier tomorrow:"On Thursday, ESPN reached out to reporters to let them know that cord-cutting isn’t nearly as bad as it sounds, and that the reason is the way Nielsen revised its pay-TV universe estimates. Nielsen (under client pressure) decided to remove broadband-only homes from its sample, but it didn’t restate historical data. It is now showing that, as of December, 1.2 million homes had cut the cord, a much smaller number than its earlier figure of 4.33 million homes for the year."Isn't that handy! This of course isn't the first time Nielsen has tweaked troubling numbers on demand to appease an industry eager to believe its cash cow will live forever. The irony is that the same industry that's happy to gobble up potentially distorted data is simultaneously deriding Nielsen out of the other corner of its mouth as a company whose data is no longer reliable in the modern streaming video age. In a profile piece examining Nielsen's struggle to adapt, the New York Times (and Nielsen itself) puts the problem rather succinctly:"Yet Nielsen is established on an inherent conflict that can impede the adoption of new measurement methods. Nielsen is paid hundreds of millions of dollars a year by the television industry that it measures. And that industry, which uses Nielsen’s ratings to sell ads, is known to oppose changes that do not favor it. “People want us to innovate as long as the innovation is to their advantage,” Mr. Hasker said.Obviously getting a distrusted metric company to fiddle with data even further won't save ESPN. The company's SEC filings still suggest ESPN lost 7 million subscribers in the last few years alone. Some of these subscribers have cut the cord, but others have simply "trimmed" the cord -- signing up for skinny bundles that have started to boot ESPN out of the core TV lineup. Similarly, studies have recently shown that 56% of ESPN users would drop ESPN for an $8 reduction on their cable bill. This sentiment isn't going to magically go away as alternative viewing options increase. BTIG analyst Rich Greenfield, who funded that survey and has been a thorn in ESPN's side for weeks (for you know, highlighting facts and stuff), had a little advice for ESPN if it's worried about accurate data:"“If this is an important issue for ESPN, they should start releasing actual subscriber numbers rather than relying on third parties [Nielsen]. If they are upset with the confusion, let’s see the actual number of paying subscribers in the US over five years." Wall Street's realization that ESPN may not fare well under the new pay TV paradigm at one point caused $22 billion in Disney stock value to simply evaporate. As a result, ESPN executives have addressed these worries in the only way they know how: by massaging statistics and insulting departing subscribers by claiming they were old and unwanted anyway. One gets the sneaking suspicion that's not going to be enough to shelter ESPN from the coming storm.Permalink | Comments | Email This Story

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One of the most problematic aspects of the TAFTA/TTIP negotiations is their lack of transparency. Although the European Commission, to its credit, has made available many of its initial offers and background papers, the key consolidated documents that show what's really happening in the negotiations -- and what deals are being cut -- are reserved for the inner circle. Even national politicians within the EU have been denied access to these, and that has really rankled, particularly in Germany. In an effort to defuse the anger there over this manifestly anti-democratic approach, a special reading room has finally been set up in the German Ministry of Economy. As this report from the non-profit investigative newsroom Correctiv.org makes clear, it's very special: MPs have to schedule an appointment as the room opens only twice a day for two hours. Before entering the room, they have to leave their mobile phones and any electronic device in a secure locker. They can read the documents only on a computer screen which is not connected to the Internet. They may take notes but are not allowed to copy any quotes from the consolidated texts. And if any of the children -- uh, politicians -- are naughty, the US will be very, very cross, and may be forced to withdraw the privileges it has granted: In the case of unauthorised disclosure of information, the US "may withdraw its consent to the placement of TTIP consolidated texts in any or all of the member states reading rooms”. This means if an MP leaks or quotes any sensitive information, the parliament may be denied access to the documents. To keep an eye on things, a guard is present at all times in the room, which is very small -- just 35 square meters in all (about 370 square feet). The War on Want site has a picture: It also provides a handy translation of the room's "features": Starting in the top left corner and moving clockwise, the signs translate as follows: Lockers (for mobile phones etc) -- Reference library (reference works) -- Work stations (maximum 8 people) -- Digital documents (negotiating language: English) -- Supervisor (official of Ministry for Economic Affairs) -- Computer (not networked) -- Confidentiality agreement (must be signed before use). These may be standard conditions for viewing negotiation documents in the US, but they are likely to be regarded as pretty insulting to German politicians -- not least because all the documents are in English, and it has taken two and half years to achieve even this miserable level of transparency. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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We haven't made a secret of our appreciation for Wil Wheaton here at Techdirt, in particular for his forward-thinking approach to digital content and intellectual property. More specifically, I've mentioned in the past that I am hopelessly addicted to Wheaton's YouTube show, Table Top, on which he features a series of table top board games being played by himself and a rotating panel of guests. As I was poking around trying to figure out when the series would resume for its fourth season, after amassing tons of crowdfunded money for the previous season, I came across an interesting thread discussing what had been dubbed "The Wheaton Effect." This thing is big. This could do a lot for our hobby. It's easy to think that these are existing gamers being introduced to new games, but I had at least two people who were not really gamers start conversations like "So hey, aren't you into board games? Well I just saw this thing on the internet..." after the first episode. All of this being said, I'm getting Tsuro. Now, we happen to know a thing or two around here about terms that get dubbed an "effect", especially when the revolve around exposure through internet channels. The Wheaton Effect is essentially a noticeable jump in sales for games that are featured on Table Top. As the original Reddit poster implies, the exposure generated by the game being featured on the show is a boon for sales. I would think this is an intuitive idea, in which an otherwise unaware public becomes aware of the fun to be had through these games and then goes out and buys them. So, if this is a thing, as it appears to be, why in the world do some video game makers take a different approach with "Let's Play" videos, whether it's attempting to claim the monetization of them, control the content within them, or outright take them down via DMCA notice or by using YouTube's ContentID? It doesn't make sense if these types of videos result in exposure that leads to sales. And, to be fair, much of the gaming industry has come around to this idea. You can see the evolution not only in the stance of the publishers, who often times go so far as to work with sites to unblock Let's Play videos that were automatically nabbed by ContentID, but also in video game hardware itself. The latest generation of consoles, specifically the Playstation 4 and Xbox One, are both designed specifically with ways for gamers to record gameplay and share those recordings. But Nintendo and some other lagging studios are more restrictive and I can't imagine why. Sales are what's important and exposure brings with it sales. The Wheaton Effect is an example of this, but this concept isn't in any way limited to the realm of table top games. Give up just a little bit of control, it seems, and you spur on sales. Permalink | Comments | Email This Story

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For a pretty good stretch, the price of a barrel of oil was about $90-$100, but now the price is around $35 or so. That's a good bargain for some consumers, but on the other hand, thousands of oil workers aren't working and plenty of companies that bet on oil prices staying high are going out of business. The simplified explanation is that the current oil supply exceeds the demand for it -- and it takes some time/politics for oil production to adapt. Oil prices might start to go back up significantly in 2017, but in the meantime, there are about 68 oil projects around the world worth about $380 billion that are on hold for a while. The price of oil has dropped dramatically over the last year or so, and for certain low-grade crude oil, the price can be as low as negative $0.50 per barrel. Take away this toxic waste that could also be turned into fuel, please.... [url] The Kashagan oil field has sucked in about $50 billion (and counting) from companies trying to tap into this enormous reservoir of oil (estimates say 16 billion barrels). However, some folks refer to it as "cash all gone" because after a couple decades of work, there have been a few major setbacks and engineering challenges -- and there's a chance that the oil might start pumping regularly in 2017. [url] The US spent about half a billion dollars in Afghanistan to develop oil, gas and minerals industries, but there's not much to show for it. Drilling and mining ain't easy, but it's even harder when armed militias are actively trying to destroy everything. Still, a hydrocarbon industry worth many billions (even with low oil prices) could potentially exist -- but there are just a few enormous problems to overcome first. [url] After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.Permalink | Comments | Email This Story

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About an hour ago, representatives from 12 different nations officially signed the Trans Pacific Partnership (TTP) agreement in Auckland, New Zealand. The date, February 4th (New Zealand time) is noteworthy, because it's 90 days after the official text was released. There was a 90 day clock that was required between releasing the text and before the US could actually sign onto the agreement. The stated purpose of this 90 day clock was in order to allow "debate" about the agreement. Remember, the entire agreement was negotiated in secret, with US officials treating the text of the document as if it were a national security secret (unless you were an industry lobbyist, of course). So as a nod to pretend "transparency" there was a promise that nothing would be signed for 90 days after the text was actually released. So... uh... what happened to that "debate"? It didn't happen at all. The TPP was barely mentioned at all by the administration in the last 90 days. Even during the State of the Union, Obama breezed past the TPP with a quick comment, even though it's supposedly a defining part of his "legacy." But there's been no debate. Because there was never any intent for an actual debate. The 90 day clock was just something that was put into the process so that the USTR and the White House could pretend that there was more "transparency" and that they wouldn't sign the agreement until after it had been looked at and understood by the public. Of course, the signing is a totally meaningless bit of theater. The real fight is over ratification. The various countries need to ratify the TPP for the agreement to go into effect. Technically, the TPP will enter into force 60 days after all signers ratify it... or, if that doesn't happen, within two years if at least six of the 12 participant countries ratify it and those six countries account for 85% of the combined gross domestic product of the 12 countries. Got that? In short, this means that if the US doesn't ratify it, the TPP is effectively dead. The US needs a majority of both houses of Congress to approve it, similar to a typical bill. And that's no sure thing right now. Unfortunately, that's mainly because a group of our elected officials are upset that the TPP doesn't go far enough in helping big businesses block competition, but it's still worth following. Inevitably, there will be some debate during the ratification process, though there are enough rumors suggesting that no one really wants to do it until after the Presidential election, because people running for President don't want to reveal that they're happy to sell out the public's interest to support a legacy business lobbyist agenda. But, even that debate will likely be fairly limited and almost certainly will avoid the real issues, and real problems, with the TPP. Either way, today's symbolic signing should really be an exclamation point on the near total lack of transparency and debate in this process. The 90 day window was a perfect opportunity to have an actual discussion about what's in the TPP and why there are problems with it, but the administration showed absolutely no interest in doing so. And why should it? It already got the deal it wanted behind closed doors. But, at least it can pretend it used these 90 days to be "transparent."Permalink | Comments | Email This Story

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Are tattoos covered under copyright law? Yeah, probably. But also, hey, maybe not. But if yes, how much control does the artist get to exert over depictions of the copyrighted tattoo? After all, it's on somebody's skin. And, hey, that somebody might be famous, like an athlete, who might then be depicted in video games about that sport. If so, then we get to find out if depictions in artistic works, such as video games, would fall under fair use and/or First Amendment provisions. It seems nobody is actually sure how to answer these questions, because what few cases have been brought before the court all appear to have ended in settlements and low-level court rulings. Which, I suppose, is why they seem to keep on a-coming. The latest is a company named Solid Oak Sketches, which claims to own the copyright on the tattoo designs appearing on the bodies of several NBA players, including LeBron James, Kobe Bryant, and DeAndre Jordan. The company has recently filed a copyright infringement suit against Take-Two Software, makers of the NBA2K franchise. Solid Oak is suing Take-Two Interactive Software and other companies associated with the videogame NBA 2K16 for unauthorized reproductions of those tattoo designs. The question over whether tattoo designs are copyrightable has never been fully decided by a court, as acknowledged in the new lawsuit. Victor Whitmill's lawsuit against Warner Bros. over Hangover 2 settled as has other disputes including one by a tattoo artist, Christopher Escobedo, who inked a UFC fighter and later asked a bankruptcy court to determine the value of his tattoo claim against videogame publisher THQ. On one hand, copyright law protects original works of expression fixed in a tangible medium. In the Whitmill case, before it settled, the judge commented, "Of course tattoos can be copyrighted. I don't think there is any reasonable dispute about that." An opinion was never issued, however. In the THQ case, Escobedo was awarded $22,500 for his lion tattoo. Then again, it could be argued that tattoo appropriation in an expressive work is de minimus. Not only that, but when combined with a First Amendment argument, it's difficult to see exactly why tattoo artists should hold any kind of sway in these cases. The depiction of the players has been licensed by the NBA Players Association, after all, and the tattoos faithfully reproduced within the game are a part, albeit a small part, of that image. I'm struggling to understand why Solid Oak's quarrel is with the game-makers and not the NBAPA. But even then, the idea that players' rights to license their own images might be stilted by what is essentially a form of voluntary branding, a la cattle, is insane. As it happens, I am a player of this particular franchise. The tattoos add to the ambiance and realism of the player depictions, but they aren't in any way central to the game. Arguing otherwise is silly. Yet, because LeBron James was featured on the cover, the lawyers for the plaintiff argue that the tattoos are "the face" of the game, thus arguing for higher damages than the Escobedo case. Note that the tattoo on LeBron James' arm in question is a portrait of his son. They had previously asked for just over $1.1 million in a demand letter for a perpetual license. As in most other similar cases, I would expect Take-Two to settle, but I truly hope they do not, because it's way past time that we get some clarity on whether or not tattoo artists can hold hostage likeness rights in this way. Permalink | Comments | Email This Story

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Despite 2015 being a banner year statistically for cord cutting, you're going to see a renewed surge in cord cutting denial over the next few weeks. Why? Cable companies like Time Warner Cable and Comcast managed to eek out modest gains in pay TV subscribers in the fourth quarter. Comcast's earnings indicate a net gain of 89,000 pay TV users in Q4, despite seeing a net loss of 36,000 video subscribers for the year. Despite still seeing a net loss, that's the best video performance the company has seen in eight years (which in and of itself speaks volumes). Time Warner Cable's earnings (pdf) note the cable provider added 54,000 TV subscribers in the fourth quarter, while only seeing a net gain of 32,000 TV subscribers for the year. That's the best Time Warner Cable has done since 2006, and it's a stark improvement when each year's subscriber numbers are put in graphical form: We'll ignore for a second these companies continue to see impressive subscriber and revenue growth thanks to network improvements, despite claiming Title II would destroy the known universe (that's a different blog post). But the fact that these companies finally saw a modest turnaround after years of steep video subscriber losses was quickly used as evidence by the cable industry, some investment websites and a few analysts that cord cutting is "overblown":And I'll go further. Cord-cutting fears were overblown by a combination of the journalistic echo chamber and analyst self-interest. — Swanni (@SwanniOnTV) February 3, 2016 Cable cord-cutting fears overblown. Comcast Gains 89,000 Video Subs In 4Q; other MSOs also gaining. https://t.co/FFgC51M7hy via @SwanniOnTV — Lee Spieckerman (@spieckerman) February 3, 2016 Except these gains don't debunk cord cutting. Many of these additions are users that had previously fled to satellite TV and phone providers. For years, cable's subscriber losses were predominately to satellite and telco TV providers, whose set top boxes were notably more innovative (Dish's Hopper, for example). In the last few years Comcast and Time Warner Cable have dramatically bumped broadband speeds and updated their own set top boxes, moves that have won some former defectors back. As a result Verizon FiOS saw its worst video subscriber additions since 2006, while AT&T and DirecTV combined saw a 54,000 broadband user net loss and a net loss of 24,000 TV customers last quarter. That's lateral subscriber movement between legacy pay TV providers, not evidence that cord cutting isn't real. But there's another major reason cable companies are once again adding video subscribers: their growing monopoly over broadband markets. There are now hundreds of markets in which AT&T and Verizon (now focused almost solely on more profitable wireless) are actively trying to hang up on unwanted DSL customers via a one-two punch of price hikes and apathy. Those annoyed users are being forced to flee to cable if they want current generation broadband speeds. When those users arrive, companies like Comcast and Time Warner Cable are offering them TV and broadband bundles that are cheaper than what they'd pay for broadband alone in order to boost legacy TV subscriber rolls. As a result, many of these subscribers may not have even wanted TV, and once the promotional rate expires may decide to simply leave again. That's of course where Comcast hopes that the use of usage caps comes in. The company is now exempting its own streaming service from usage caps in the hopes of preventing TV users from cutting the cord. Should they cut the cord anyway and embrace streaming alternatives, they run face-first into usage caps and overage fees. If cable is forced to compete on price for TV, it will be sure to seek its pound of flesh from your broadband bill. Cord cutting continues unabated in the background of this tussle, like the drip, drip, drip of a leaking faucet. And while pay TV growth remains flat or in decline, it's important to remember the overall population and the housing market continue to grow, without a corresponding uptick in cable subscribers. That's a sign that younger people and many new homeowners simply don't think traditional cable is all that important, and the slow drip of cord cutting will, over time, become something more resembling a torrent as, quite bluntly, legacy TV's older audience dies. Cable can do something about this, but it's going to require seriously competing on price above and beyond short-term, subscriber roll boosting promotions.Permalink | Comments | Email This Story

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