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About Dark Helmet Techdirt Insider

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

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

http://www.amazon.com/Midwasteland-ebook/dp/B004THD8SQ/ref=sr_1_1?ie=UTF8&qid=1345132753&sr=8-1&keywords=timothy+geigner

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Posted on Techdirt - 24 March 2021 @ 8:03pm

NFL's Thursday Night Football Goes Exclusive To Amazon Prime Video

from the b-as-in-billion dept

While denialism over cord-cutting is still somewhat a thing, a vastly larger segment of the public can finally see the writing on the wall. While the cable industry's first brave tactic in dealing with the cord-cutting issue was to boldly pretend as though it didn't exist, industry executives more recently realize that there is a bloodbath coming its way. There are few roadblocks that remain for a full on tsunami of cord-cutters and one of the most significant of those is still live sports broadcasting. This, of course, is something I've been screaming about on this site for years: the moment that people don't need to rely on cable television to follow their favorite sports teams live, cable will lose an insane number of subscribers.

Over the past few years, the major American sports leagues have certainly inched in that direction. Notable for this post, 2017 saw the NFL ink a new streaming deal for mobile streaming with Verizon. The NFL had a long partnership with Verizon for mobile streaming already, but the notable aspect of the new deal was that NFL game streaming was suddenly not exclusive. Other streaming services could get in the game. And, while you can't draw a direct line to it, the tangential story of how the NFL just inked an exclusive deal with Amazon Prime for the broadcast rights for Thursday Night Football certainly shows you where this is all heading.

The deal runs from 2023 to 2033 and, according to a report from CNBC, will see Amazon pay $1 billion per year for the TNF package. Thursday Night Football is the NFL's newest and cheapest TV package, but the deal lets Amazon creep closer to parity with the NFL's other licensees, mainstream TV networks like Fox Sports, ABC/ESPN (Disney), CBS (Viacom), and NBC (Comcast). CNBC's report has the other four channels paying upward of $2 billion per year each, and unlike Amazon, the TV networks get to take turns airing the Super Bowl.

The exclusivity for Amazon seems like a mistake for the NFL, which really should want its product viewed in as many places as possible. On the other hand: 1 billion dollars a year. The Thursday lineups are typically one or two games each Thursday, far less than the deals for Sunday games. It's an incredible amount of money to pay just so Amazon can exclusively show the NFL's worst games of the week. But it also shows not only that Amazon understands the power and draw of live sports like this, but also that the NFL understands the power and draw of streaming services.

Building on that point, the NFL is also loosening up what its other broadcast partners can do in terms of streaming games.

The NFL's new deal contains streaming provisions for the other providers, too. Each network can now simulcast their games on their streaming service, and some deals scored one or two streaming-exclusive games. Disney's ABC and ESPN games are also allowed on ESPN+, and ESPN+ will get one exclusive game per season, the London "International Series" game. NBC games can also appear on the streaming service Peacock, and Peacock is getting "an exclusive feed of a select number of NFL games." CBS can stream games on Paramount+. Fox Sports, which wasn't part of Disney's acquisition of Fox, apparently has a streaming service called "Tubi," which can now simulcast the Fox games.

All of which is to say that the NFL is widely opening up its games to be streamed in more and more places. This shouldn't come as the world's biggest surprise, frankly. The NFL is a money-making operation and it does its marketing and promotional work better than most leagues. The very smart people handling broadcast contracts for the league certainly can see where the future in broadcasting games is and it sure looks like they are only going further and further into streaming.

If pro sports leagues follow suit, the end of cable television as we know it is nigh.

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Posted on Techdirt - 23 March 2021 @ 8:06pm

New Year, Same You: Twitch Releases Tools To Help Creators Avoid Copyright Strikes, Can't Properly Police Abuse

from the getting-twitchy dept

Readers here will remember that the last quarter of 2020 was a very, very bad time for streaming platform Twitch. It all started when the RIAA came calling on the Amazon-owned platform, issuing a slew of DMCA takedown notices over all sorts of music included in the recorded streams of creators. Instead of simply taking the content down and issuing a notice to creators, Twitch simply perma-deleted the content in question, with no recourse for a counternotice given to creators as an option. After an explosive backlash, Twitch apologized, but still didn't offer any clarity or tools for creators to understand what might be infringing content and what was being targeted. Instead, during its remote convention, Twitch only promised more information and tools in the coming months.

Five months later, Twitch has finally informed its creators of the progress its made on that front: tools on the site to help creators remove material flagged as infringement and some more clarity on what is infringing.

Twitch announced in an email to streamers that the site has added new tools today to help creators see where they stand with takedown requests and copyright strikes. Twitch also added tools to let streamers mass delete their recorded streams. It’s a smart move because it gives streamers better tools to play on the right side of copyright law. (If you don’t, and you rack up enough copyright strikes, you get permabanned.)

Now, in the event that a streamer gets hit with a DMCA takedown request, it’ll show up in their on-site inbox; Twitch’s video producer will also show the number of copyright strikes a channel has received. In addition, streamers can now unpublish or delete all their VODs at once (or in batches of 20 at a time).

It's not that Twitch's new tool is a bad thing. More clarity for creators and an increased ability to granularly address DMCA notices for their content is a decidedly good thing. But it all feels both extremely late in coming because, obviously, Twitch should have known that DMCA notices on creators from the copyright industries would be a thing.

But if you're looking for encouraging signs that Twitch is getting its shit together in policing its own site, you certainly won't find it in the story of how one creator got one of his accounts banned for an account name that was "harassment via username." The user he's accused of harassing would appear to be... himself.

It might be an understatement to say that popular Minecraft YouTuber and streamer George “GeorgeNotFound’’ Davidson had a weird weekend. Within two days, he got banned from Twitch, possibly un-banned, definitely banned again, and unbanned (again?). Why? “Harassment via username,” according to Twitch. Problem is, the only person he could have possibly been harassing was himself.

The new, different ban email from Twitch accused him of “harassment via username” and once again informed him that the suspension was indefinite—aka, a ban. This one also further elaborated on what exactly he might have done, without telling him exactly what he definitely did. Examples included “having a username that explicitly insults another user,” “having a username that threatens negative action towards another user,” and “having a username that promotes self-harm in conjunction with malicious chat activity, such as telling another user to kill themselves.”

Obviously, "ThisIsNotGeorgeNotFound" does not do any of those things. And, yet, his account was banned for a second time. He has since had the account unbanned. Which, fine, but what the hell is going on at Twitch that it never seems to get any of this right? And if the platform can't be trusted to do something as relatively simple as properly policing creators' handles, why would anyone have any confidence that it's going to navigate waters as treacherous as the Copyright Seas any better?

Look, Twitch grew up fast. And nobody expects any growing platform to be perfect from the get go. But with the backing of a parent company like Amazon, it certainly should be able to do better by its creators than this.

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Posted on Techdirt - 22 March 2021 @ 8:05pm

Sharyl Attkisson Lawsuit Against Rod Rosenstein Claiming She Was Hacked By Government Tossed

from the crazypants dept

Remember Sharyl Attkisson? If not, she is a former CNN and CBS journalist who made something of a name for herself both in reporting on the Obama administration, often critically, as well as for accusing that same administration of hacking into her computer and home network. Whatever you think of her reporting, her lawsuit against Eric Holder and the Justice Department over the hacking claims was crazy-pants. Essentially, she took a bunch of the same technological glitches all of us deal with on a daily basis -- flickering television screens, a stuck backspace key on her computer -- and wove that into a giant conspiracy against her and her reporting. She made a big deal in the suit, and her subsequent book on the matter, over some "computer experts" she relied on to confirm that she was a victim of government hacking, except those experts remained largely anonymous and were even, in some cases, third party people she'd never met. For that and other reasons related to how quickly she managed to do initial discovery, the case was tossed by the courts in 2019.

That didn't stop Attkisson's crusade against the government, however. In 2020, she filed suit against Rod Rosenstein, again accusing the government of spying on her and her family. To back this up, she again relied on an anonymous source, but that source has since been revealed. And, well...

The source was initially anonymous but later identified by Attkisson’s attorneys as Ryan White, an alleged former FBI informant. White is a QAnon conspiracy adherent who appears to have been the source of bizarre child-abuse allegations that Georgia attorney Lin Wood leveled at Chief Justice John Roberts last year, according to a report in the Daily Beast.

And so here we are yet again, with an extremely serious claim lodged against the federal government that relies on the tinfoil hat crowd as "evidence." In addition, Attkisson lays out again the computer and network hacking claims, with a named "computer forensic" expert who apparently told her that there was spyware on her machine, that they had logs for where these breaches originated (such as a Ritz Carlton hotel), and that the tools used for all of this appeared to be the sort typically only available to government actors. And here too, just as in her original lawsuit, there are tons of details and claims that reveal that, like so many other conspiracy theories, there is a duality problem. Namely, that the federal government is so nefarious and great at hacking that they completely compromised nearly every machine Attkisson used at work and at home, but that same federal government was too stupid to mask the IP address from which it launched these attacks.

For example, her suit claims that these attacks were originally launched from the United States Postal Service in Baltimore, where some staff involved in infiltrating The Silk Road worked. The contention of her Qanon witness is that the spying on Attkisson somehow happened as an offshoot of a multi-agency task force against dark web dealings. And to believe all of that, you again have to believe that the government's l337 h4x0rs didn't bother to cover their USPS tracks.

But those are conversations about the merits of Attkisson's case. We don't really need to get that far, because her suit has again been tossed on essentially procedural grounds.

Bennett, an appointee of President George W. Bush, also ruled that there was inadequate indication that any surveillance of Attkisson involved activities in Maryland, which Bennett’s court has jurisdiction over.

“The Amended Complaint is devoid of any factual allegations with respect to actual conduct related to the alleged surveillance which occurred in Maryland,” Bennett wrote in his 20-page decision, issued on Tuesday. “The conclusory statements that the alleged surveillance was performed by individuals in Maryland, unsupported by any factual allegations, lie in contrast to the Plaintiffs’ numerous assertions regarding conduct performed and events which occurred in the Eastern District of Virginia.”

So, on the one hand, it's not as if the court is saying that Attkisson's claims are nonsense. And maybe this will lead to her refiling her lawsuit in the proper jurisdiction. On the other hand, it doesn't inspire a great deal of confidence in the merits of her claims or her legal team that they can't even get the case filed in the correct jurisdiction.

So, do I think this is the last we'll hear from Sharyl Attkisson's lawsuits over the supposed hacking of all her things? No, I doubt it. After all, she must certainly have another book to write and promote soon.

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Posted on Techdirt - 19 March 2021 @ 7:39pm

Life Imitates Art: Warren Spector Says He Wouldn't Make 'Deus Ex' In Today's Toxic Climate

from the mankind-divided dept

The Deus Ex franchise has found its way onto Techdirt's pages a couple of times in the past. If you're not familiar with the series, it's a cyberpunk-ish take on the near future with broad themes around human augmentation, and the weaving of broad and famous conspiracy theories. That perhaps makes it somewhat ironic that several of our posts dealing with the franchise have to do with mass media outlets getting confused into thinking its augmentation stories were real life, or the conspiracy theories that centered around leaks for the original game's sequel were true. The conspiracy theories woven into the original Deus Ex storyline were of the grand variety: takeover of government by biomedical companies pushing a vaccine for a sickness it created, the illuminati, FEMA takeovers, AI-driven surveillance of the public, etc.

And it's the fact that such conspiracy-driven thinking today led Warren Spector, the creator of the series, to recently state that he probably wouldn't have created the game today if given the chance.

Deus Ex was originally released in 2000 but took place in an alternate 2052 where many of the real world conspiracy theories have come true. The plot included references to vaccinations, black helicopters, FEMA, and ECHELON amongst others, some of which have connotations to real-life events. Spector said, “Interestingly, I’m not sure I’d make Deus Ex today. The conspiracy theories we wrote about are now part of the real world. I don’t want to support that.”

This could be a post about how drastically disinformation has altered our society. Or it could be a post about how some of the very real aspects of modern surveillance have so warped the trust between the public and government so as to allow more conspiracy theories to better breathe.

But I think instead I'd like to focus on how clearly this illustrates the artistic nature of video games. The desire, or not, to create certain kinds of art due to the reflection such art receives from the broader society is exactly the kind of thing artists operating in other artforms have to deal with. Art imitates life, yes, but in the case of speculative fiction like this, it appears that life can also imitate art. Spector notes that seeing what has happened in the world since Deus Ex was first released in 2000 has had a profound effect on him as an artist.

Earlier, Spector had commented on how he was “constantly amazed at how accurate our view of the world ended up being. Frankly it freaks me out a bit.” Some of the conspiracy theories that didn’t end up in the game were those surrounding Denver Airport because they were considered “too silly to include in the game.” These include theories about secret tunnels, connections to aliens and Nazi secret societies, and hidden messages within the airport’s artwork. Spector is now incredulous that they’re “something people actually believe.”

If you had thought that the debate over whether video games are an artform was settled, you haven't been paying attention. To this day, there are very real implications for the courts and wider government understanding the artform, particularly when it comes to whether video games receive the same First Amendment protections as movies and literature.

Hopefully, artists like Spector, engaging in these types of artistic internal debates, can help solidify the understanding further.

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Posted on Techdirt - 18 March 2021 @ 7:58pm

Modder Solves 'GTA Online' Loading Time Problem, Gets Paid By Rockstar For It

from the mods-are-your-friend dept

When it comes to how the video game industry interacts with modding communities, it can be frustrating just how often companies see modders as a menace. Nintendo has a long, long history of treating mods as a threat to its control, but it is certainly not alone. But modding by and large is not a threat to game makers. Actually, it's a boon. Mods tend to make games more interesting to more people and can often lengthen the lifecycle of a particular game.

And sometimes a mod can simply fix a game. That is what a coder, going by the name t0st, did for the long loading times in Grand Theft Auto Online.

A couple of weeks ago, we reported that a Grand Theft Auto Online player sick of the game’s notoriously long load times took matters into his own hands, broke out the disassembler, and crafted his own fix. The long load times were due to the inefficient way that the GTA Online developers chose to parse and then sort the data in a large multi-megabyte JSON file.

The fix—created by a coder known as t0st—resulted in a 70-ish percent decrease in loading times, going by t0st’s own informal benchmarks. For players suffering from the JSON parsing issue, this means that they only have to wait perhaps one or two minutes to enter a GTA Online game, rather than the six-plus minutes they were previously stuck watching the loading screen.

Now, it's easy to see how Rockstar Games could have handled this poorly. The company could have chosen to feel embarrassed by this modder fixing its product. It could have simply seen a change in coding for its game through a mod as a threat. It could have claimed that all of this was unauthorized and therefore copyright infringement.

Instead, Rockstar reached out to t0st, reviewed his work, and paid him for it.

In the two weeks since t0st’s fix was made public, GTA Online developer Rockstar got in contact with t0st and acknowledged that t0st had indeed fixed a legitimate issue with the game and that he’d be receiving a $10,000 payment under Rockstar’s bug bounty program.

It's worth noting that there is no indication t0st did this work because of the bounty program. He or she appears to simply be a fan of the game but not the loading times. By not seeing everything through a prism of control, Rockstar got its game fixed.

All of this serves as a reminder that the biggest fans of good content can be the biggest contributors to that content in ways that mean more interest and sales for the game. If you let them.

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Posted on Techdirt - 17 March 2021 @ 8:01pm

PC Game 'Devotion' Is Back, Now Being Sold Directly By The Developer

from the going-direct dept

Late last year, we discussed a disappointing move by GOG to delist well-reviewed horror PC game Devotion from its platform. Making it all very odd were the facts that GOG had just announced that morning that the game would be available that day, as well as Devotion's previous delisting from Steam. The reason for the multiple delistings was never perfectly spelled out in either case, but the game includes a reference to China's President Xi and the never ending joke that he resembles Winnie the Pooh. GOG, instead of being open about that being the obvious reason to delist the game, instead said it made the move after receiving "messages from gamers." Groan.

Well, fortunately, this is 2021, which means instead of the game dying on the doorstep of well-entrenched gatekeepers, developer Red Candle Games can instead just release the game itself on its own website.

After running into nothing but trouble on other people’s platforms, the game’s developers have decided to just sell the game themselves, opening up an online store for international customers that is selling digital, DRM-free copies of Devotion, their previous game Detention, as well as soundtrack bundles for both.

Despite all the complaints from the industry about how the internet serves only to flood the universe in copyright infringement, this is the transformative power of the internet. Gatekeepers that add value can still find a place for themselves, as GOG and Steam have certainly done. But when they try to shut down the distribution of content for cowardly business reasons, well, the developer can just route around them and sell directly to the consumer. Honestly, it's mostly surprising that this has happened more often in the past and become the norm.

For its part, Red Candle Games does plan on this being the norm for them moving forward.

And, really, why not? The developer has been bitten in the ass twice now when it comes to distributing through the big online players, both times over the hurt feelings of a honey-mad, cartoon maybe-bear President of China. Why not just go it alone and keep from having to put up with all of this nonsense.

The bigger question is, of course, just how successful this will be. If Red Candle Games can demonstrate that it can go it alone in this way, showing that routing distribution through the likes of Steam and GOG aren't always the best path, that could lead to more experiments like this... or a change in the distributors behavior.

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Posted on Techdirt - 16 March 2021 @ 8:36pm

Apple Sued Over 'Diverse' Emojis Which Is All Idea and No Specific Expression

from the frowny-face dept

The inability of someone to understand the idea/expression dichotomy in copyright law strikes again! For those of you not familiar with this nuance to copyright law, it essentially boils down to creative expression being a valid target for copyright protection, whereas broader ideas are not. In other words, the creator of Batman can absolutely have a copyright on Batman as a character, but cannot copyright a superhero who is basically a rich crazy guy who fights crime in a cape and cowl with a symbol of an animal on his chest. You get it.

Katrina Parrott, who came up with some original emojis of a more diverse nature than previously made, does not get it. She sued Apple late last year, claiming copyright infringement after Apple came out with its own diverse emojis.

As reported by The Washington Post, Katrina Parrott was invited to Cupertino in 2013, to discuss partnering with Apple on an app based on her idea of emojis with different skin tones. From the report:

It was 2013, and the tiny digital drawings — smiley faces and thumbs-up icons sent over text message — depicted people in only one skin tone. Parrott, who is Black, said her oldest daughter came home from college one day and lamented that she couldn't express herself through emoji with skin tones that matched her own.

Embracing the idea, she launched iDiversicons six months later, allowing users to copy and paste emojis with five distinct skin tones into messages and such. However, things quickly turned sour:

According to Parrott, though, her early success turned to heartbreak when Apple and other technology companies incorporated skin tone options into their operating systems, making her app obsolete and leaving her $200,000 in the hole.

And for all of this, she has sued Apple for copyright infringement. The problem, though, is that Apple didn't actually copy any of Parrott's actual designs. Instead, it simply incorporated different color tones into its own existing emoji designs. The amount of money Parrott has put into her business, the fact that she had a meeting with Apple back in 2013, and the rest all mean absolutely nothing when it comes to whether or not this qualifies as copyright infringement. Apple's motion to dismiss from November is exactly on point.

Copyright protects only the expression of ideas, not the ideas themselves. Plaintiff Cub Club Investment has filed an action that contravenes that bedrock legal principle. This case is about “emoji,” which are small graphical images made available in text-messaging and similar applications, sometimes depicting a representation of a human body part, like a hand making a thumbs-up signal. Cub Club alleges it has obtained copyright registrations for several body-part emoji, each in five different shades, to approximate the naturally occurring variation in humans’ skin tones. Apple offers its own body-part emoji, in a different suite of five colors, featuring different renditions of the real-world objects depicted: differently contoured fingers, differently angled thumbs, and so on. Cub Club asserts that Apple’s emoji infringe the copyrights in Cub Club’s emoji, on the theory that Cub Club’s exclusive rights prevent anyone else from offering emoji depicting the same body part as Cub Club’s emoji, in five different hues. That contention is incorrect as a matter of law. It depends on the premise that Cub Club owns a copyright in the idea of chromatically varying emoji, irrespective of whether an alternative rendition of the same concept implements the idea differently. Because the Copyright Act and resulting judicial doctrine are crystal clear that Cub Club’s exclusive rights do not in fact preclude others from implementing the idea of emoji with different skin tones—the very activity Cub Club says gives rise to liability here—Cub Club’s copyright infringement allegations fail to state a claim.

The very latest on the case appears to be a back and forth over the choice of venue. Parrott has pushed to have the case heard in Texas, because of course. After all, that's where all the IP maximalist judges reside. Apple, instead, wants the case heard in California, given that's where most parties and witnesses involved in the suit reside. All the while, of course, Apple doesn't think this case should even make it past the dismissal stage.

Nor should it, if you take even a tiny amount of time to think about it. Whatever use copyright has, it is certainly true that the law was never meant to lock up this sort of idea for diversity in creative outputs.

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Posted on Techdirt - 15 March 2021 @ 8:00pm

Even Murkier: Microsoft Says Some Bethesda Games Will Indeed Be Xbox, PC Exclusives

from the mine-mine-mine dept

Late last year, we discussed Microsoft's acquisition of Zenimax, the parent company of Bethesda, and what it would mean for the studio's beloved franchises. At particular issue, given that this is Microsoft we're talking about, was whether new or existing franchises would be exclusive to Xbox consoles and/or PC. The communication out of Microsoft has been anything but helpful in this respect. First, Xbox chief Phil Spencer and Bethesda's Todd Howard made vague statements that mostly amounted to: man, we don't have to make Bethesda games exclusives and it's hard to imagine us doing so. Only a few weeks later, another Microsoft representative clarified that while the company may have plans to make Bethesda games "first or best" on Microsoft platforms, "that's not a point about being exclusive." This naturally led most to believe that Microsoft might have timed release windows on other platforms, but wouldn't be locking any specific titles down.

What a difference a few months can make, it seems. With the acquisition officially complete, Microsoft put out a "welcome" announcement to the Bethesda team, which included this fun bit to be consumed by the public.

This is the next step in building an industry-leading first party studios team, a commitment we have to our Xbox community. With the addition of the Bethesda creative teams, gamers should know that Xbox consoles, PC, and Game Pass will be the best place to experience new Bethesda games, including some new titles in the future that will be exclusive to Xbox and PC players.

This, frankly, is the worst of all worlds. The announcement is vague enough to not really give the public any actual idea of what games will be exclusive and which won't. Will it be new franchises developed as a first party studio, or are we talking about franchise mainstays like Fallout and Elder Scrolls? Nobody knows! In fact, all the public does know is that the exclusivity guillotine is hanging out there somewhere. And this drip, drip, drip change in the message to the public sure does make it look like Microsoft had this plan all along and only wanted to avoid a backlash in the public.

A public that has caught wind of a worrying trend in the video game industry: consolidation. 2020, particularly in the second half of the year, saw a violent uptick in studio consolidation under the bigger players. With that consolidation comes a lot of control over distribution of titles and franchises, especially for studios that were acquired by the likes of Microsoft, Nintendo, and Sony.

It's not just your imagination: the gaming industry is going through a period of consolidation unlike anything we've seen before. Market research firm DDM collected transaction data over the course of 2020 and found that:

-Gaming industry investment reached a new high of $13.2 billion in 2020, up 77% from 2019.

-M&A volume reached a new high of 220 deals in 2020, a 33% year-over-year increase.

-Things really started heating up in the fourth quarter of 2020, when 75 M&A deals took place, nearly double the number of deals made in Q4 2019.

While some studios have begun to finally open up to selling across platforms, it's quite easy to see danger on the horizon with all of this consolidation. If the ability to distribute titles suddenly ends up primarily in the hands of a small number of corporate entities, we could see huge steps backwards in a return towards exclusive games, exclusive hardware, and the like. For an industry that has been speeding towards more and more revenue, this could be one hell of a speed bump.

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Posted on Techdirt - 12 March 2021 @ 1:36pm

Accusations Of EA Employee Side-Selling 'FIFA' Rare In-Game Items Is A Problem If True

from the side-hustle dept

With so many online video games moving to models that involve selling rare items or other aspects of gameplay after the purchase of a game, it's worth noting that this concept of selling manufactured rarity isn't exactly new. In fact, one notable analogue version of this can be found in the trading card industry. And if you're looking for parallels of danger, the baseball trading card industry has that covered specifically.

A brief history lesson. While baseball cards have made something of a comeback recently, especially due to expanded trading and collecting avenues created by the internet, the industry also quite famously tanked in the '90s.

That trend has reversed in the last few years. While the baseball card industry fell from domestic sales of $1 billion in the '80s and early '90s to $200 million in 2012, Leiner says that it's now bounced back to the strongest position that it's had in two decades (though he declined to share Topps' sales numbers). That isn’t just from breaking—sales have also increased in other forms of online retail, as well as at big-box stores like Target and Walmart.

So what happened in the early '90s to tank the industry? There is more than one answer. The labor lockout of 1990 certainly hurt the trading card business. Baseball's decline as the focal national pastime contributed to it as well. But then there is also the legend of the Ken Griffey Jr. rookie card. Upper Deck quite famously made Griffey Jr. its #1 card in the 1989 set, despite him having never played a game. The other major players, such as Topps, didn't have a rookie card for him that year. There was an insane fervor around getting that rookie card when the set came out, even as it turned out to not be a particularly rare card. One explanation for the lack of rarirty is a matter of printing techniques.

Despite the popularity of the Griffey card, it was not a scarce card. The card was situated in the top left hand corner of the uncut sheets and was more liable to be cut poorly or have its corners dinged. Company policy was that if a customer found a damaged card in its package, the company would replace it.[25] Many Griffey cards were returned and the result was that Upper Deck printed many uncut sheets (sheets consisting of 100 cards) of just the Griffey card.[25] According to Professional Sports Authenticator, the Ken Griffey, Jr. would become the most graded card of all time with the company.

But there have long been rumors that something else happened. Some have suggested that those running Upper Deck's presses actually purposefully produced extra Griffey Jr. rookie cards when they were highly sought after, seeing it as a way to essentially print money. Whatever the truth, the market was flooded with this sought after card, the value of the card plummeted as a result, and a whole bunch of collectors got very angry and turned off from collecting baseball cards. Coupled with the other factors, the industry contracted to something like a quarter of its previous revenue.

Which brings us to EA Sports and accusations that at least one employee has been selling rare FIFA assets for money.

Using the hashtag #EAGATE, complaints have been made that someone within EA has been selling FIFA’s Prime Icon Moment players for huge sums of cash, like €1000 (USD$1190) for two players.

That’s a lot of money, but there are people out there who both take FIFA very seriously and spend thousands on Ultimate Team packs just trying to unlock elite players, so to be able to cut out the random factor and get the best players directly isn’t as terrible a deal as it may sound to you.

When the complaints first surfaced, it was hard to parse which were legitimate and which were just...the same white noise the FIFA community is always capable of producing when it comes to its uneasy relationship with developer EA Sports.

You could write this all off as rumor, but there is some pretty convincing evidence floating around the internet.

If you can't see the embedded tweet, it shows images that purport to be direct solicitation of rare player cards for large sums of money. And that brings us back to the lessons learned from the baseball industry: this sort of thing can destroy not only the marketplace for a single game, but for the industry as a whole.

EA says its investigating and it needs to be very transparent as to the results of that investigation. The entire part of the gaming industry that revolves around buying packs trying to get rare items only works if there is trust from the public that all of this is on the up and up. The moment that the public no longer believes in the system, it collapses. And eroding trust in a major player in this industry, such as EA Sports, is going to have a spillover effect to other publishers and studios.

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Posted on Techdirt - 11 March 2021 @ 7:38pm

NCAA Goes After Vasectomy Clinic's 'Vasectomy Mayhem' Over 'March Mayhem' Ride Along Trademark

from the snip-snip dept

It will come as no surprise to most of our readers that the NCAA is a jealous protector of its March Madness trademark. Much like the Super Bowl, the NCAA likes to march (heh) around and try to pretend like its trademarks give it overly restrictive rights when it absolutely doesn't.

But what you may not be as familiar with is all of the ride along trademarks the NCAA has amassed relating to its men's basketball tournament. For instance, the NCAA also holds a trademark for "March Mayhem" and has used that in advertising partnerships in the past. For some reason, this has caused the NCAA to think that this allows it to oppose a trademark for a vasectomy clinic with an admittedly questionable marketing scheme.

The NCAA, which brings you March Madness and the Final Four, has filed a petition of cancellation with the Trademark Trial and Appeal Board to remove a registration owned by Virginia Urology Center, P.C. for the trademark “Vasectomy Mayhem.” It is one of the more ballsy intellectual property protection acts taken by the Association.

It is not altogether clear that the NCAA is still actively using the March Mayhem mark, but that did not prevent some inflammatory claims from being submitted as part of the petition. First, the NCAA acknowledges that Virginia Urology Center uses Vasectomy Mayhem to promote its medical services, which is really where the analysis should have ended and caused the Association to decide it was better to appropriate resources elsewhere.

Right, because the NCAA and the vasectomy clinic are not competing in the same markets. And, one hopes, the NCAA didn't somehow get a trademark for "March Mayhem" in the service categories of medical procedures, healthcare, or baby-stoppage. And, yet, none of this stopped the NCAA from claiming in the petition that the proposed trademark for "Vasectomy Mayhem" would somehow confuse the public and dilutes its own marks.

Registrant’s VASECTOMY MAYHEM mark is confusingly similar to the NCAA Marks, and continued registration and use by Registrant of VASECTOMY MAYHEM with the Registrant’s Services is likely to result in confusion, mistake or deception with Petitioner and/or the goods and services marketed in connection with the NCAA Marks, or in the belief that Registrant or its VASECTOMY MAYHEM services are in some way legitimately connected with, or sponsored, licensed or approved by, Petitioner.

So, a couple of obvious points to make. First, "Vasectomy Mayhem" is a horrible marketing term. Like, truly awful. The last thing anyone wants to associate with their upcoming vasectomy is "mayhem." Secondly, there is some semblance of an association with vasectomies and the basketball tournament. It's something of a cultural thing for men to get vasectomies in March simply so that they can spend their recovery watching the tournament. Why someone would want to get a vasectomy and then watch grown men slam a big ball into the ground over and over again is beyond me, but it's a thing.

But that association doesn't trademark infringement make. And the simple fact is that nobody is going to somehow think that the NCAA is giving out, or endorsing, vasectomies just because one clinic goes on a "Vasectomy Mayhem" blitz.

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Posted on Techdirt - 10 March 2021 @ 8:01pm

Deepfake Of Tom Cruise Has Everyone Freaking Out Prematurely

from the not-deep-enough-yet dept

You may have heard that in recent days a series of deepfake videos appeared on TikTok of a fake Tom Cruise looking very Tom-Cruise-ish all while doing mostly non-Tom-Cruise-ish things. After that series of short videos came out, the parties responsible for producing them, Chris Ume and Cruise impersonator Miles Fisher, put out a compilation video sort of showing how this was all done.

As you can see, this was all done in the spirit of educating the public on what is possible with this kind of technology and, you know, fun. Unfortunately, some folks out there aren't finding any fun in this at all. Instead, there is a certain amount of understandable fear for how this technology might disrupt our lives that is leading to less understandable conclusions about what we should do about it.

For instance, some folks apparently think that deepfake outputs should be considered the intellectual property of those who are the subjects of the deepfakes.

A recent deepfake of Hollywood star "Tom Cruise" sparked a bombshell after looking very close to real. Now it has been claimed they are on their way to becoming so good, that families of the dead should own the copyright of their loved ones in deepfakes.

Lilian Edwards, a professor of law and expert in the technology, says the law hasn't been fully established yet. She believes many will claim they should own the rights, while some may not.

She told BBC: "For example, if a dead person is used, such as (the actor) Steve McQueen or (the rapper) Tupac, there is an ongoing debate about whether their family should own the rights (and make an income from it)."

Now, I want to be somewhat generous here, but this is still a terrible idea. Let's just break this down practically. In the interest of being fair, it is understandable that people would be creeped out by deepfake creations of either their dead relatives or themselves. Let's call that a given. But why is the response to that to try to inject some kind of strange intellectual property right into all of this? Why should Steve McQueen's descendants have some right to control this kind of output? And why are we using McQueen and Tupac as the examples here, given that both are public figures? What problem does this solve?

The answer would be, I think: control over the likeness rights of a person. But such control is both fraught with potential for overreach and over-protection coupled with a history of a total lack of nuance in what should not be considered infringing behavior or what is fair use. Techdirt's pages are littered with examples of this. Add to all of this that purveyors of deepfakes are quite often internationally located, anonymous, and unlikely to pay the slightest attention to the kind of image likeness rights being bandied about, and you really have to wonder why we're even entertaining this subject.

And then there are the people who think this Tom Cruise deepfake means that soon we'll simply have no functional legal system at all.

The CEO of Amber, a video verification site, believes deepfake evidence will raise reasonable doubt. Mr Allibhai told us: “Deepfakes are getting really good, really fast.

“I am worried about both aural/visual evidence being manipulated and also just the fact that when believable fake videos exist, they will delegitimise genuine evidence and defendants will raise reasonable doubt. When the former happens, innocent people will go to jail and when the latter happens, criminals will be set free. Due process will be compromised and a core foundation of democracy is undermined. Judges will drop cases, not necessarily because they believe jurors will be unable to tell the difference: they themselves, and most humans for that matter, will be unable to tell the difference between fact and fiction soon."

Folks, we really need to slow our roll here. Deepfake technology is progressing. And it's not progressing slowly, but nor is it making insane leaps heretofore unforeseen. The collapse of the legal system as a result of nobody being able to tell truth from fiction may well come one day, but it certainly won't be coming as a result of the harbinger of a Tom Cruise deepfake.

In fact, you really have to dial in on how the Cruise videos were made to understand how unique they are.

The Tom Cruise fakes, though, show a much more beneficial use of the technology: as another part of the CGI toolkit. Ume says there are so many uses for deepfakes, from dubbing actors in film and TV, to restoring old footage, to animating CGI characters. What he stresses, though, is the incompleteness of the technology operating by itself. Creating the fakes took two months to train the base AI models (using a pair of NVIDIA RTX 8000 GPUs) on footage of Cruise, and days of further processing for each clip. After that, Ume had to go through each video, frame by frame, making small adjustments to sell the overall effect; smoothing a line here and covering up a glitch there. “The most difficult thing is making it look alive,” he says. “You can see it in the eyes when it’s not right.”

Ume says a huge amount of credit goes to Fisher; a TV and film actor who captured the exaggerated mannerisms of Cruise, from his manic laugh to his intense delivery. “He’s a really talented actor,” says Ume. “I just do the visual stuff.” Even then, if you look closely, you can still see moments where the illusion fails, as in the clip below where Fisher’s eyes and mouth glitch for a second as he puts the sunglasses on.

This isn't something where we're pushing a couple of buttons and next thing you know you're seeing Tom Cruise committing a homicide. Instead, creating these kinds of deepfakes takes time, hardware, skill, and, in this case, a talented actor who already looked like the subject of the deepfake. It's a good deepfake, don't get me wrong. But it is neither easy to make nor terribly difficult to spot clues for what it is.

All of which isn't to say that deepfakes might not someday present problems. I actually have no doubt that they will. But as with every other kind of new technology, you're quite likely to hear a great deal of exaggerated warnings and fears compared with what those challenges will actually be.

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Posted on Techdirt - 8 March 2021 @ 8:27pm

Universities Threaten Virtual Campus Tour Business Over Trademarks

from the hurting-the-help dept

The COVID-19 pandemic has changed and continues to change how life works for many of us in a variety of ways. We're learning just how underserved America is by our monopolistic broadband providers, for instance. Esports has come into fashion in ways never seen before as well. Work from home has become more normalized and school from home is the bane of parents everywhere, even when it's the best option available.

And, with so much emphasis made on not traveling and on remaining socially distant, some had an idea to change how prospective university students perform the ritualistic "campus visit" during COVID times. The idea behind LiveCampusTours was to partner with local university students to provide a virtual tour of a school's campus and facilities.

"We provide live one-on-one virtual tours by high school students given by current undergraduates of the college," [co-founder Seth] Kugel said.

LiveCampusTours gives families of high school students a glimpse of schools without making a road trip and spending money on travel. Sometimes, Kugel says, they will even offer lower rates for tours if some families can't afford it.

"We think that this levels the playing field in many ways," Kugel said.

It seems that the tours from LiveCampusTours are themselves getting positive reviews. The Washington Post noted that the tours are more engaging than the on-campus tours, that the guides from LiveCampusTours aren't beholden to the schools' policies for what the tours entail, and that the personalities giving the tours are a step above the in-person version that schools put on to prospective students for free. All in all, LiveCampusTours appears to be providing something of value to the public and is getting high marks for it.

So, of course, some of the schools want to be able to opt out, apparently seeing trademark law as one way to do so.

But not all of the 175 universities they provide tours of have been on board. More than a dozen have issued cease and desist letters. One the latest to do so, the University of Denver.

"Their argument seems to be that we can’t use their name on the website and they think that people will be confused into thinking that these are official tours given by the university and a lot of times that is the concern," said Kugel.

But the open question is whether any of what LiveCampusTours does actually violates a school's trademark. I would argue that it absolutely does not, given that the site lists school names not as a brand, but as a list of options where a prospective student can book a tour. It's simply a list of real-world, factual names. Go to the site and see for yourself: if you try to book a tour, you're presented with text names of the schools and a thumbnail picture of the campus. There's no school branding, no crests, no imagery. Just the name of the school and then a list of the tour-providers available at that school.

This is not trademark infringement. In addition, schools are also threatening students who participate in giving tours. From the WaPo post:

Two universities have threatened to discipline students who have already signed up to be guides for LiveCampusTours. I can see why this enterprise might bother otherwise kind and friendly educators when there is so much administrative chaos on campus during the pandemic. But some perspective is in order. The students working as guides like putting a personal spin on their campuses. The high school students who take the tour pay just $39 for a unique personal perspective and spare themselves a long car drive with their parents.

Are complaining institutions as solid as Yale, Stanford, Pepperdine and the University of North Carolina at Chapel Hill likely to topple as a result of this useful service? Don’t they realize each guide is bragging on a school she or he personally chose?

Not only is it stupid, but it's an open question whether state universities can even do this as a matter of free speech. Courts in the past have struck down this sort of "licensed tour-givers only" barrier when it came from local governments. Why a state school would be any different is a mystery to me.

So, to summarize, a useful service is being threatened by higher learning institutions during a pandemic for providing a service that keeps kids and their families safe mostly utilizing either trademark law when it doesn't apply or potentially unconstitutional restrictions on who can offer those kinds of tours, even though these tours essentially advertise the schools to the public. A real banner day for these complaining schools, to be sure.

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Posted on Techdirt - 5 March 2021 @ 7:39pm

EA College Sports Is Back, But Some Schools Are Opting Out Until Name, Image, Likeness Rules Are Created To Compensate Athletes

from the hut-hut-punt dept

Way back in 2013, a class action lawsuit started by ex-UCLA basketball star Ed O'Bannon resulted ultimately in the NCAA found to have violated antitrust laws. The antitrust bit comes from a waiver the NCAA forces student athletes to sign that removes their ability to be compensated for their names, images, or likeness (NIL). While this restriction has been in place at the NCAA for eons, this case came about due to O'Bannon discovering that he was represented in EA Sports' NCAA Basketball game in a "classic" team loaded into the game.

The knock on effect to all of this was that 2010 was the last year EA Sports offered its college basketball game and 2013, the year the lawsuit came about, was the last year the company made its vaunted NCAA Football game. The reason given by the company was that schools were shying away from those games to avoid further lawsuits. For the next seven years, EA Sports stuck to professional sports.

But now, in 2021, the company has announced that the college football series is back.

EA Sports actually dropped a few Easter eggs pointing to the possibility. In the past two editions of Madden, some college football programs were included as part of the "Face of the Franchise" story mode of the game. EA Sports vice president and general manager Daryl Holt told ESPN that while it wasn't a conscious decision to do that as a test run for the return of a college football game, there was positive feedback and returns, particularly in those college markets.

"That was another just check mark to go -- we know [fans] are itching for it and we know we can develop and deliver a great college football experience," Holt said. "So why are we waiting?"

So, what changed? Apparently not much beyond the Collegiate Licensing Community and its members once again being willing to license school names, stadiums, and imagery to EA Sports. Why there is this sudden change of heart isn't entirely clear at the time of this writing, but it is worth noting that there is a lot of talk and pressure on the NCAA to create new NIL rules so that athletes can get some compensation for their likenesses.

Still, with those NIL rules still theoretical as of now, not all schools are opting in. Notre Dame had already indicated that they were pulling out of the game, citing the lack of NIL rules being established. And now Northwestern University has done likewise.

According to a report from Steve Greenberg of the Chicago Sun-Times, the Northwestern football team is opting out of the upcoming college football video game from EA Sports. The school wants NIL rules to be created and finalized before players can take part in the highly-anticipated video game. Northwestern is the second known school to opt-out of the game with Notre Dame being the first. It was also reported by Northwestern made the decision in January before EA announced college football is coming back.

So, what does this all mean? Well, it's a bit of a risky venture for EA Sports to take, given that any NCAA Football title as of now would have to be given an "incomplete" grade. The Big 10 without Northwestern? College football without Notre Dame? And what if more schools start getting pressure from their students and athletes and start to go down the same path?

What this ultimately highlights is that the NCAA cartel should get its shit together and work out an NIL compensation arrangement with its athletes before once again attempting to dunk its licensing cookie into video games to try to enrich itself. That this is still an unsettled topic of conversation is baffling.

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Posted on Techdirt - 4 March 2021 @ 7:45pm

Twitter Opposes 'Tweet' Trademark Application For Bird Food Company

from the chirp dept

Way back in the simpler time of 2010, Mike wrote up an interesting piece on Twitter's trademark enforcement policies and how it handles third parties that interact with Twitter using Twitter-related terms. In short, Twitter built a reputation for itself in freely licensing these terms for use by third parties, believing that tools that made Twitter more useful were good for the platform overall. It was a smart, productive way of looking at protecting trademarks so as not to lose them to genericide.

Which is part of what makes it sort of strange that Twitter seems to take the opposite tact when it comes to totally unrelated business entities attempting to trademark terms like "tweet."

On Friday, Twitter filed a notice of opposition before the Trademark Trial and Appeal Board against applicant Puerto Rican company B. Fernandez & Hnos.’s application for the TWEET mark, asserting that it will be harmed if the applicant’s mark is registered.

Twitter pointed out that the messages on its platform are called tweets. The marks are used in connection with the aforementioned goods and services, along with other goods and services. Twitter argued that it has established extensive common law rights in the TWEET mark in connection with its goods and services and that the TWEET mark is distinctive.

There's no doubt that "tweet" has taken on fame as a result of Twitter's platform, trademarks, and marketing of itself. But there is still a matter of actual or potential customer confusion on specific uses to contend with and the problem with that is that B. Fernandez & Hnos. is a maker of bird food. In that context, the term "tweet" doesn't call back to Twitter at all, because it fits naturally in with the nature of the product in question.

For some reason, Twitter's opposition seems to think the opposite.

Twitter claimed that the applicant seeks to register the TWEET mark in International Class 31, covering bird food. However, Twitter alleged that “consumers will likely associate Applicant’s TWEET Mark with Twitter and the TWEET Goods and Service and will assume there is a relationship between Applicant and Twitter. Twitter asserted that the applicant’s TWEET mark is identical to its TWEET mark, would be “advertised and/or sold in identical or similar channels of trade as Twitter’s and Services”, and would “conflict with Twitter’s lawful and exclusive right to use the TWEET Mark nationwide in connection with Twitter’s Goods and Services.” Consequently, Twitter averred that this similarity is likely to cause consumer confusion, mistake or deception regarding the source, origin, or sponsorship of the respective goods and services.

In other words, Twitter's "tweet" is so famous that a brand of bird food that includes "tweet" will be seen as associated more with Twitter than with bird food. And that's plainly ridiculous.

And so, again, we're left with a company that acts quite good on one set of trademark issues, but is, at least, a bit overly aggressive on others.

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Posted on Techdirt - 4 March 2021 @ 12:14pm

US Navy On The Hook For 'Pirating' German Company's Software

from the yarrrr! dept

A couple of years ago, we discussed the somewhat ironic story of a German software company suing the United States Navy for pirating its software. The initial story was a bit messy, but essentially the Navy tested out Bitmanagement's software and liked it well enough that it wanted to push the software out to hundreds of thousands of computers. After Bitmanagement sued for hundreds of millions of dollars as a result, the Navy pointed out that it had bought concurrent use licenses through a third party reseller. While Bitmanagement pointed out that it didn't authorize that kind of license itself, the court at the time noted that without a contractual arrangement between the company and the Navy, the Navy had an implied license for concurrent users and dismissed the case.

Bitmanagement appealed that ruling, however, arguing that the lower court stopped its analysis too soon. The story there is that such an implied license would require the Navy track concurrent users across its 500k-plus computers it installed the software on, but it appears the Navy didn't bother to track concurrent users at all.

“We do not disturb the Claims Court’s findings. The Claims Court ended its analysis of this case prematurely, however, by failing to consider whether the Navy complied with the terms of the implied license,” the Appeals Court writes.

“The implied license was conditioned on the Navy using a license-tracking software, Flexera, to ‘FlexWrap’ the program and monitor the number of simultaneous users. It is undisputed that the Navy failed to effectively FlexWrap the copies it made,” the Court adds.

And just like that, the dismissal flips entirely and the Appeals Court has now remanded the case to determine damages. Again, Bitmanagement is asking for just under $600,000,000 in damages, given the wide scale of installations the Navy undertook with its software. With nothing tracking how many users concurrently used the software, the Navy doesn't really have any way to argue back that it complied with the implied license.

The real lesson in this is just how messy these sorts of copyright conundrums are. It's reasonable to believe that the Navy thought it was doing the right thing, even if it failed to comply with the implied license by monitoring concurrent users. But it's also reasonable for a software provider, with no evidence providing nuance, to simply see 500k-plus installations as mass copyright infringement.

But, in the eyes of the same United States that likes to put out reports on how terrible other countries are in respecting intellectual property rights, I guess the United States Navy is just a bunch of pirates now.

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Posted on Techdirt - 3 March 2021 @ 7:56pm

Another Game Developer DMCAs Its Own Game In Dispute With Publisher

from the pirate-publisher dept

Way back in early 2019, we wrote about an odd story with a game developer DMCAing its own game on Valve's Steam platform over a dispute with its publisher. The short version of the story is that the developer accused the publisher of ghosting out on royalty payments, so the takedown allowed the developer to wrestle back control of the game and put it back up themselves. Steam, which has a reputation of being far more friendly to publishers than developers, in this case actually helped the developer wade through getting control of its game.

And now, two years later, it's happening again. Frogwares, developer of The Sinking City game, issued a DMCA notice for the game to Steam. At issue again is the publisher, Nacon in this case, being accused of both of skipping out on royalty payments last summer and cracking Frogwares' game and altering it, putting out a completely unauthorized version. See, due to the royalty issues, Frogwares had already pulled the game off of digital storefronts last summer. Suddenly, Nacon published a new version of the game on Steam in the past few days. The details as laid out by Frogwares on that last bit are... quite a thing.

In a post it put up yesterday afternoon, Frogwares further detailed the situation, writing, “[T]o our great surprise, we found a new version of The Sinking City was uploaded to Steam and launched, but Frogwares didn’t deliver such a version… Nacon, under the management of its president Alain Falc, asked some of their employees to crack, hack and pirate our game, change its content in order to commercialize it under their own name, and this is how they did it.”

The game developer’s post goes on to share a variety of information that, Frogwares writes, is evidence proving the French publisher bought The Sinking City from a separate platform and altered the game’s data to hide its tracks. This included replacing online retailer Gamesplanet’s logo in the opening credits and loading screen as well as removing a dynamic “Play More” option from the main menu that pointed players towards Frogwares’ other games and acted as a non-intrusive security measure by connecting to external servers.

Nacon claims otherwise, of course. The publisher says it has a contractual arrangement with Frogwares, that the new release is authorized, and that all is on the up and up. But two facts seem to suggest that might not be true. For starters, if this were an authorized release, why the mucking about with buying and cracking other copies of the game from other storefronts? Assuming the evidence Frogwares is putting out there is true, there should be no need to do any of that if there is an arrangement between developer and publisher.

But Nacon knows all of that, as it's been locked in a legal battle in French courts over the rights to publish the game for months. From a statement Frogwares put out:

Regarding our use of a DMCA to remove the game from Steam. We believe in a very short time, we were able to collect extremely strong evidence to indicate this version of the game was pirated and contains content that Nacon has absolutely no rights to – namely The Merciful Madness DLC. A DMCA notice proved to be our most effective tool to give us time to gain further potential evidence and to also start the required and lengthy additional legal processes to prevent this from happening again.

We are aware that a final ruling on whether Frogwares are obligated to deliver a Steam version has yet not been made and could take years. As it stands, we have an appeals court ruling saying, until further notice Frogwares do not need to deliver a Steam version to Nacon. In the meantime, Nacon decided to take justice into their own hands and release a pirated build.

Which sort of makes that publisher a pirate if true. And this is the sort of piracy that damned well should be punished.

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Posted on Techdirt - 1 March 2021 @ 8:02pm

Taylor Swift, Evermore Theme Park Dispute Escalates As Swift's Team Countersues

from the swift-response dept

In early February, we discussed an extremely dumb lawsuit brought by a theme park in Utah called Evermore against Taylor Swift, who recently released an album called Evermore. The whole thing is buckets of stupid, with the Evermore theme park claiming that because it released a couple of songs on Apple Music, this somehow puts them in the same marketplace as Taylor Swift. Then there were complaints that Swift's album pushed search results down for the theme park, which doesn't trademark infringement make.

Swift's response dismantled the claims the theme park made, but when on to note that Evermore theme park had actually gone on social media and responded to messages about Swift's album trying to associate the park with the album. In other words, the only potential for public confusion appears to have been generated by the theme park itself.

And now this is going to escalate further as Swift's management company has countersued the park for the unauthorized use of Swift's music.

Now, her company TAS Rights Management has countersued, alleging that the park played Swift songs on its grounds “without authorisation or license agreement”. They allege that the park “blatantly ignored the numerous notices from [US performance rights organisation] BMI and opted instead to continue to benefit from the free and unauthorised public performance” of three Swift songs.

Specifically, TAS alleges that one of the attractions of the park is a section where several park actors perform and sing copyrighted music, including a couple of Swift songs. From the filing:

At a section of Evermore Park known as “the Burrows,” two actors regularly and routinely perform copyrighted songs, including the Works at issue in this action, to large crowds of patrons at Evermore Park. These unlawful musical performances are marketed as a central attraction of Evermore Park. For instance, Evermore Park’s website advertises that visitors can “[c]reate fanciful music” with Park actors and describes one of the Park’s main activities as “Musical Character Performances.”

Also noted in the filing, and perhaps most damning, is that the Evermore park reached out to BMI once this lawsuit became imminent and attempted to get a retroactive license to cover these past performances of copyrighted works. Combined with exhibits brought by Swift's team detailing the several times that BMI has informed Evermore that its use of copyrighted songs was infringing, all of which were ignored by the park, the suit makes the case that the park's infringement was willful. Frankly, it's hard to formulate much of an argument against that assertion.

Which makes it useful to reiterate that all of this appears to be a result of Evermore theme park first filing a ridiculous trademark lawsuit of its own. In other words, they decided to poke the hornet's nest and are now getting stung.

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Posted on Free Speech - 26 February 2021 @ 10:43am

Illinois Lawmaker Proposes Unconstitutional Ban Of 'GTA' In Response To Carjackings

from the jacked-up dept

If ever there were a stupid, unconstitutional notion that appears to be evergreen, it must certainly be attempts at outright banning games from the Grand Theft Auto series. While a certain segment of public officials have long sought to blame video games generally for all the world's ills, the GTA series has been something of a lightning rod for attempted censorship. Honestly, it's not totally impossible to understand why. The game is a violent, humorous parody of modern American life and pop culture, taken to such extremes so as to artistically point out the flaws in our society.

You know... art.

Art which is protected by the First Amendment and thus protected by attempts at government censorship. Which doesn't keep public officials from trying to ban it anyway. The most recent example of this is one Illinois lawmaker suggesting the entire state ban sales of the game because of an uptick in car-jackings in Chicago.

An Illinois lawmaker has a new response to the recent surge in carjackings around the Chicago area -- banning a popular video game. State Rep. Marcus Evans said during a press conference Monday morning in south suburban Olympia Fields that video games are contributing to the carjacking surge across the area.  Evans said he plans to introduce a bill to ban sales of the game in Illinois.

"'Grand Theft Auto' and other violent video games are getting in the minds of our young people and perpetuating the normalcy of carjacking," Evans said. "Carjacking is not normal and carjacking must stop."

Unfortunately, artistic takes that reflect our society are normal and, in fact, celebrated. And while an uptick in crime is certainly a cause for worry, it's also worth noting that the last GTA game came out in 2013. Why the series is now a suddenly responsible for an increase in car-jackings goes unexplained by Evans, but seems to represent a massive flaw in his logic.

Evans is getting much of this from a local anti-violence activist, Early Walker.

Walker agreed with Evans' conclusion about the game, in which players steal cars as part of a larger plot of organized crime.

"Representative Evans and I have researched and concluded that these very young offenders of carjacking are greatly influenced by the Grand Theft Auto video game," Walker said. "I truly believe that there is bipartisan support in Springfield to ban this game from being sold in Illinois."

Fortunately, it could have the support from literally every citizen in the state of Illinois and it still wouldn't matter. Banning the game would be plainly unconstitutional. The Supreme Court codified video games as protected speech protected from government bans in 2011. A fact, actually, that Illinois lawmakers should damned well be aware of. So, this is either grandstanding to accomplish nothing, or it's an admission that Illinois has elected incompetent buffoons to its state government.

Neither conclusion is particularly encouraging.

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Posted on Techdirt - 25 February 2021 @ 7:52pm

Monster Energy Goes After Autobody Shop Because Of It's 'M' Logo And Use Of Green Color

from the monster-mash dept

For regular readers of Techdirt, Monster Energy is one of those companies that need only appear in the headline of a post before the reader knows that said post will be about some ridiculous trademark bullying Monster is doing. The company has a reputation for being about as belligerent on trademark matters as it could possibly be, lobbing lawsuits and trademark oppositions as though the company lawyers had literally nothing else to do with their time. And, while many, many, many of these bullying attempts fail when the merits are considered, the fact is that the bullying still often succeeds in its goal to use the massive Monster Energy coffers to bully victims into either submission or corporate death.

The really frustrating part in all of this is how often Monster Energy attempts to trademark bully companies that aren't remotely competing in their market. One recent example of this is Monster going after MPT Autobody in South Carolina. For disclosure, one of the founders of MPT reached out to me personally to inform me of exactly what was going on. Based on our conversation and what I can see in public records, the order of events appears to go something like this:

  1. MPT Autobody submits an application to trademark its name and branding (pictures will be below)
  2. Monster Energy opposes the application, citing that MPT's branding in part includes a stylized "M" and the color "green" and will therefore confuse the public into thinking it's associated with Monster Energy
  3. After consulting with a lawyer, MPT Autobody drops the application, intending to simply do business without the trademark
  4. Despite that, Monster Energy then sends a C&D notice, arguing that the continued use of "M"s and "green" constitutes copyright infringement, along with a demand that MPT pay Monster Energy's attorney's fees

I have embedded the entire C&D notice below so you can go see the details for yourself. That said, let's start with a couple of facts at the top of all of this. Monster Energy does not have the right to block other companies from using the letter "M" in their branding. Monster Energy also does not have the right to block other companies from using the colors green or black in their branding. Monster Energy also generally does not have the right to block other companies from using green or black "M"s in their branding.

And, yet, simply because Monster Energy sponsors some auto race activities, its letter claims exactly that and, as a result, it includes in its letter the following pictures as to what will confuse the public.

Now, if any of that branding out in the wild brings to mind Monster Energy, you need help. And keep in mind that for all of Monster Energy's reference to its sponsorship of trucks and cars, it is not in the autobody industry. Given that, there is a hell of a high bar to climb to prove that any of this is infringement.

All of which may end up being besides the point. MPT is going to have hefty bills on its hands if it wants to fight this out, even as it seems to be trying to play nicely with Monster Energy as much as it can. For instance, the company's site now has a disclaimer on it, noting that they are not affiliated with Monster Energy. The company is also looking into the potential of using a different shade of green on branding, though it's anyone's guess if that would satisfy Monster Energy. The trademark app has been withdrawn.

But trademark bullies are never satisfied with that sort of thing. Instead, they want to grind their victims into the ground. Here's hoping that doesn't end up being the case with MPT Autobody.

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Posted on Techdirt - 24 February 2021 @ 7:43pm

Stadia Fallout: Nobody Can Address Stadia Games' Bugs Because Google Fired All The Developers

from the abandon-ship dept

More bad news for Stadia. We were just discussing Google's decision to axe its own game development studios. In and of itself, such a move to cut staff like this would be a worrying sign for the platform, especially given just how much growing interest there has been in video games and game-streaming surrounding the COVID-19 pandemic. But when it's instead one more indication that Google isn't fully committed to its own platform, alongside the poor reception from the public and concerns about whether it can deliver the gaming experience it promised, these things tend to pile up on one another. I have attempted to drive home the point of just how important the development of trust with customers is for Stadia, given that those buying into the platform are gaming entirely at the pleasure of Google's desire to keep Stadia going.

And the hits to trust keep coming. In direct fallout from its decision to cut the development teams, Stadia customers are finding themselves unable to get support for Google's internally developed game.

One of the few games that Google actually owns — although it was released first on consoles and PC before making its Stadia debut — was Journey to the Savage Planet. Google acquired Typhon Studios before the end of 2019, and the deal meant that Journey to the Savage Planet was one of the few games that came free with the Stadia Pro subscription.

Typhon Studios was the first studio acquired by Google, but with the effective closure of Google’s gaming ambitions, the developers there were let go with everyone else. For users who are still playing on Stadia however — at least the ones who aren’t suing Google — that’s caused a bit of a problem, because there’s nobody around to fix their games.

And in the case of Journey to the Savage Planet, fixes are definitely needed. Crashes and glitches appear to be the normal experience for those playing the game. Still others report that the game regularly freezes at the start menu. Worse yet, it appears that some reporting these bugs are being told by Google reps that they are going to work with the now-axed developers to address their concerns.

Said axed-developers, however, are telling everyone that will listen that, no, they can't, because they were laid off.

Unable to play Journey in single-player or co-op, one user reached out to the game’s publisher, 505 Games. After being told by Stadia’s social team that they would work with the publisher on a fix, the publisher said: Actually, we can’t fix this for you at all.

“Unfortunately, there is nothing we can do from our end right now since all of the game code and data on Stadia is owned by Google,” 505’s support staffer said in an email.

In a follow-up a few days ago, another 505 Games support staffer suggested the user remind Google that, actually, Google are the ones responsible for publishing everything on Google Stadia.

There's literally no way for those now ex-Google employees to make fixes on games when the code resides on Google's systems. And if Google itself cannot fix the bugs, well, then the bugs go unfixed, full stop.

All of this comes as Stadia reps are telling people that more games are coming to the platform in a pitch to drive adoption of Stadia among the public. But given the experience that public has with Google's own game, it's hard to imagine many trusting the platform enough to buy in. This has all the earmarks of other abandoned Google projects in the past, where the company never seems to decide whether it is fully invested in the product or not. In the past, that has led to those projects withering on the vine. Why the public should expect something different out of Stadia is an open question.

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