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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

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Posted on Techdirt - 14 December 2020 @ 7:56pm

Owner of 'Derby Pie' Trademark Sues Newspaper For Using The Term, Publishing Recipe

from the and-they're-off! dept

Long-time Techdirt readers may recall that the "Derby Pie", a notable dessert sold in Kentucky chiefly around the time of The Kentucky Derby, has been the previous subject of trademark issues. Way back in 2013, the EFF posted a special recipe for its "mean-spirited censorship pie" after Kern's Kitchen, headed by Alan Rupp, went on a threat blitz against a bunch of blogs for posting their own recipes for "derby pie". Rupp has a trademark on the term, see, and seems to think that trademark means that he is in universal control of anyone using it for their own recipes, regardless of whether those recipe posts cause any customer confusion, are used in actual commerce, or generally violate the other aspects of trademark protection statutes. He's wrong about that, of course, but his threats are often met with shivering compliance.

But Rupp took this to a whole new level when he filed a trademark suit in 2018 against the Louisville Courier-Journal, a newspaper, for both posting its own Derby Pie recipe and for mentioning that other bakeries had derby pie products. The court promptly dismissed the lawsuit.

U.S. District Judge Rebecca Jennings, an appointee of President Donald Trump, dismissed Rupp’s complaint in March and ruled the newspaper had used the term in a “non-trademark” fashion.

Jennings called Rupp’s complaint “skeletal,” finding he failed to establish a plausible claim that a consumer would think the newspaper asserted ownership of the mark or itself was a manufacturer of Derby Pie.

In other words, there was no chance for customer confusion because, well, The LCJ is a damned newspaper. As to mentioning that other bakeries had products that existed, the LCJ reporting on that factual occurrence had nothing to do with trademark law and is protected First Amendment speech.

But rather than admitting how absurd this all was and slinking away, Rupp instead appealed the ruling. At this point, Rupp's legal team is asserting that dismissal at the pleading stage was incorrect, as courts are supposed to give deference to plaintiffs at that stage. Which is true, except in cases when the case has little to no chance of succeeding, which is certainly the case here. The LCJ itself responded, pointing out that First Amendment is a thing.

Attorney Michael Abate argued on behalf of the Courier-Journal and told the panel there is “no conceivable basis” for a trademark infringement claim, but also pointed out the newspaper’s speech is protected under the First Amendment.

“We’re talking about news stories that are plainly protected under the First Amendment.

Add to that the non-commercial nature of the article's recipe (the newspaper isn't selling pies or the recipe itself), the lack of monetary harm to Rupp, and the fact that these attacks are on news coverage and you have a, ahem, recipe for a failed lawsuit. Rupp possibly should be going after other bakeries using his trademark, but not a newspaper.

A panel of judges is currently reviewing all of this, but one expects this appeal will be tossed as quickly as the original lawsuit.

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Posted on Techdirt - 11 December 2020 @ 7:39pm

Cyberpunk 2077's Stream-Safe Setting Option For Its Music Failed To Keep Streamers Safe

from the whoops dept

In November, as we were finally coming to the day when CD Projekt Red's newest opus, Cyberpunk 2077, was going to be released to the world, we wrote about how the developer had included a setting for the game specifically to keep streamers safe from copyright strikes. Essentially, the setting was meant to strip out all licensed music from the game and replace it with music that wouldn't land streamers in copyright jail while doing let's-plays. On the one hand, it was nice to see a developer so in favor of having its games streamed do this sort of thing. On the other hand, the fact that CD Projekt Red had to do so showed both what a failure Amazon/Twitch and the like have been at supporting their streamers through music licensing deals and, more importantly, what a hellscape copyright enforcement has become that all of this was even necessary.

Well, as it turns out, that hellscape is so complete that even the game's stream-safe setting failed to keep streamers safe.

The developer first warned potential streamers on Wednesday, before Cyberpunk 2077 officially launched in all regions, that a certain song (CDPR didn’t say which one) during the game’s “Braindance” sequences might trigger a Digital Millennium Copyright Act strike. That’s even if you’re using the specific in-game setting designed to toggle off copyrighted music for this exact reason.

But now CDPR says that the issue may be larger than it first realized, and it’s now advising streamers turn off in-game music entirely due to “additional instances in the game which might put a DMCA strike on your channel.” CDPR says a fix is on the way, but it’s not an ideal situation to have to disable all music (both copyrighted and original tracks) when streaming the game just to avoid tripping the automated detection systems that protect copyrighted works.

This is all immensely stupid. I'm sure some out there will want to blame the developer for this, with suggestions that it didn't roll out its stream-safe music setting well enough. But that's dumb. CD Projekt Red is trying to navigate this idiotic minefield, but because of the failings of streaming platforms combined with the absurdly strict culture of the music industry, it's very, very difficult to pull off.

Wouldn't it be easier if we all just admitted that hearing music, licensed or otherwise, playing in the soundtrack of a game being streamed isn't a damned threat or replacement for the actual original music? Nobody was going to out to buy "Track X" from iTunes only to hear it on a let's-play and decide instead not to. That isn't a thing.

Instead, we have this absurd reality to deal with.

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Posted on Techdirt - 10 December 2020 @ 7:52pm

Nintendo Hates You: DMCA Takedowns Of Game Music Continue While Nintendo Offers No Legit Way To Listen

from the mine-mine-mine dept

Well, it's been a measurable amount of time, so we have yet another example of Nintendo doing the Nintendo, which is best described as depriving its fans of ways to celebrate their fandom via intellectual property enforcement while also offering no alternative route for said fans. Whether it's stripping some of the creative fun out of its Animal Kingdom game, nuking fan-made games of Nintendo properties like some kind of IP-version of Missile Command, or just generally being as IP protectionist as possible, it seems that Nintendo chooses restrictive enforcement over creative methods for granting fans permission to be fans at every turn.

You will recall that Nintendo is currently embroiled in a controversy, having first disallowed a Smash Bros. tournament that had to go remote over the use of a mod that made remote tournaments possible with the game, followed by rescinding the broadcast ability of a Splatoon 2 tournament almost certainly just because several teams chose team-names that were protests of its Smash tournament actions. The backlash over those actions have been fairly universal, which may explain why Nintendo is now retreating to older, more familiar methods for pissing people off: DMCAing music from its beloved games.

Now, they’ve come under fire yet again for taking down YouTube videos with music from Super Mario 64, Ocarina of Time, and Mario Kart Wii. It’s nothing new. Nintendo has been doing it for years, and they’re well within their rights to.  

GilvaSunner is a YouTuber known for uploading soundtracks from video games, mostly Nintendo. Understandably, he’s had many videos taken down over the years due to copyright claims. In 2019, he posted a tweet that said, “Game over.” It includes a screenshot with emails from YouTube telling him that some videos had been blocked due to copyright claims. However, he didn’t specifically mention it was Nintendo.

Now, more than a year later, he followed up on his initial tweet with an update. More videos have been taken down over copyright claims. He specifically mentioned it was Nintendo JP, although it cannot be seen in the screenshots.

He's not the only one, of course. Again, I will point out that Nintendo absolutely can do this. It's within their rights. But they don't have to. There are plenty of methods by which it could offer an inexpensive license for people to portray its game music if it wanted to. Or, given that this is copyright and not trademark law we're talking about, Nintendo could simply ignore all of this, as they selectively have throughout the years. The post goes on to note that reactions to these takedowns among Nintendo fans are mixed, which is understandable.

But it seems like fans are also finally beginning to ask the right questions.

Either way, the consensus is that this whole predicament has a simple solution. Nintendo needs to make the music from their game soundtracks more readily available and in a legal way.

“Please put your soundtracks on Spotify and/or other music streaming services,” said GilvaSunner. “Others have already seen the light, when will you?” It’s a sentiment that others share.

And thus we have the crux of how Nintendo does the Nintendo. The company patrols and controls its intellectual property with a fervor normally reserved for cult followers, but refuses to offer the legitimate -- and lucrative! -- methods for fans to enjoy that intellectual property.

Nintendo, whatever else I might want to say about the company, makes great products. And great art! Being restrictive on the IP side while also being restrictive over where that art is enjoyed is immensely frustrating, both to me and the real, true fans of the company's work.

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Posted on Techdirt - 10 December 2020 @ 12:23pm

AZ GOP Goes Full Bullshit: Claims It took Down Violence-Inciting Tweet Over Copyright Concerns

from the this-is-what-we-do dept

If you're looking for what the meltdown of a major political institution looks like in real time, you need look only to how the GOP is behaving in the wake of Donald Trump's decisive electoral loss. This trickle down freak-out was somewhat predictable, with nearly everyone agreeing that a Trump loss would not see a classy exit by the soon-to-be former President. But I'm not sure anyone would have predicted that the Republican Party writ large would refuse to admit what is an obvious electoral defeat, would seek to overturn a legitimate election in which they picked up all kinds of seats in the House of Representatives, nor cuddle up with all kinds of crazy actors wielding bizarre and easily disproven conspiracy theories.

But it's worth noting something: it's unlikely that the vast majority of the GOP players in this Riverdance of stupid are actually crazy. Whatever one might want to say about Mitch McConnell and Lindsey Graham, they aren't batshit insane, nor stupid. Neither is the vast GOP infrastructure around the country. More likely, they are simply cynical enough to play up the conspiracy theories in order to rev up their voters for future elections, hamper a Biden administration, and otherwise make life as difficult on the party that won the presidency as humanly possible. They're liars, in other words, not psychos.

Case in point would be the audacious set of tweets sent out by the Arizona GOP recently. Tweets which, referencing a Rambo movie of all things, very much incite violence.

That account followed up on that tweet, indicating that Trump followed that creed and asking if any of its followers did as well. Sadly, many responded in the affirmative, appearing to indicate that there are folks out there ready to die for the cause of Donald Trump. Unsurprisingly, a large number of people both on Twitter and in public, including many public officials, many of which are Republicans, lost their collective shit over the tweet. The backlash was swift and severe, with condemnation over a tweet that appeared to actively incite violence coming from all political corners.

Which is why it was also not surprising that the Arizona GOP took the tweet down, though it's reasoning is both absurd and indicates the content of the tweet itself is something that group has no problem putting out in the future.

In an email to the Phoenix New Times on Tuesday, Arizona GOP communications director Zachery Henry bypassed the backlash over the now-deleted tweet by saying that it was taken down “due to concerns about copyright and fair use law.”

“The Republican Party of Arizona condemns all forms of violence in the strongest terms. Fictional movie scenes should be weighed in their proper context,” Henry told the Phoenix New Times in an email. “However, due to concerns about copyright and fair use law, this clip has been removed.”

The AZ GOP is full of crap. Copyright concerns didn't suddenly materialize between when the tweet was posted and when the backlash began. No DMCA takedown was issued over the tweet, nor the image within it. The tweet was taken down over the backlash.

Except the AZ GOP now also can't take any credit for taking down the tweet, since it's indicated that the tweet wasn't a problem save the copyright concerns. It's the worst of all worlds, in other words.

But the most important aspect of this is, again, just how cynical it all is. The GOP knows Trump's claims of fraud are absurd. But they'll use them anyway to try to score political points. And if someone in, say, the home state of Gabbie Giffords has to get shot in the meantime, then so be it.

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Posted on Techdirt - 9 December 2020 @ 7:55pm

Nintendo Plays 'Control Inception', Cancelling Splatoon Broadcast After Teams Protest Canceling Smash Bros. Tourney

from the will-slip-through-your-fingers dept

If you're one of what I assume are zillions of folks who come here for my rants about Nintendo, I owe you an apology. While I'm usually pretty good about bringing you every instance of Nintendo doing the Nintendo all over itself and its fans, one such instance from last month slipped through the cracks. The Big House is a high profile Super Smash Bros. tournament series and host. Unfortunately, Nintendo shut down what was supposed to be the latest tournament and broadcast of The Big House via a C&D notice. At issue appears to be the use of a mod called "slippi", a fan-made mod that basically unbroke the nearly two decades old game when it came to online play. Without getting too technical, the mod simply made the game perform well over internet connections, whereas it was previously essentially unplayable. Given that The Big House tournament was rendered virtual this year due to you-all-know-what, the mod was essential to running the tournament. From Nintendo:

Unfortunately, the upcoming Big House tournament announced plans to host an online tournament for Super Smash Bros. Melee that requires use of illegally copied versions of the game in conjunction with a mod called ‘Slippi’ during their online event. Nintendo therefore contacted the tournament organizers to ask them to stop. They refused, leaving Nintendo no choice but to step in to protect its intellectual property and brands. Nintendo cannot condone or allow piracy of its intellectual property.

Which is a misleading statement at best. While The Big House confirmed most of those details, it's also true that digitizing one's own video game collection is not "illegal copying". Unless Nintendo has reason to think players in the tournament were simply pirating the game, which would be insane, given the high profile nature of the tourney, that part of its statement is nonsense.

Nintendo does, however, meticulously control its image, how its games are broadcast, and any modifications to its games, a la the slippi mod.

And, apparently, it may also play authoritarian when it comes to how the players of its games choose to express their displeasure at Nintendo's actions. That's the speculation, given that just this past weekend, Nintendo pulled the broadcast for a Splatoon 2 tournament that was notable pretty much solely because a healthy chunk of the participating teams chose team names protesting the cancellation of The Big House.

Word of an issue broke to the public at large on Saturday evening when a gamer who goes by the name Slimy Tweeted that “the Splatoon community, in support of the Smash community, has 30% of the top teams in this weekend’s Spl2 NA Open with Team names in support of Melee and Smash.” They then noted that Nintendo then canceled plans to livestream the event. The tweet went viral.

Was it really the existence of team names such as InC #FreeMelee, Melee Nation, and #FreeMelee 227 that made Nintendo drop the stream? The company isn’t saying and hasn’t responded to Kotaku’s requests for comments.

Notably, when gaming sites asked Nintendo whether this was the reason, the company responded: "La, la, la, I can't heeeeaar you!" Battlefy, the company hosting the event on Nintendo's behalf, issued a vague statement saying the broadcast had to be cancelled due to "unexpected executional challenges." Few in the Splatoon community appeared to believe this.

A fan-run streaming organization, however, had no issues taking over... and taking a shot at Nintendo at the same time, with more clever naming of this replacement tournament.

On Sunday morning, EndGameTV, a fan-run Splatoon and Smash streaming organization not connected to Nintendo, announced that the group, with the help of fans, would hold its own Splatoon 2 finals. The event would be called “The Squid House” a direct reference to The Big House. The Splatoon 2 teams who were supposed to play that day in the official Nintendo event dropped out of the tournament just hours before they were supposed to play, leading to the event not being held. On the Battlefy page for the event, the top four section seems to have been removed.

The Squid House competition, which was organized overnight, was held as planned on December 6, with team FTWaveDash winning the event and the prize pool of $25,000, which had been raised by fans during the tournament. The competition also raised over $3,000 for charity. According to Slimy, The Squid House prize pool was the largest seen in any western-held Splatoon 2 tournament.

And so, in an effort simply to play Grand Moff Tarkin and squeeze its fist around its own community, Nintendo instead allowed a fan-run streaming site to put on what might be the most successful Splatoon 2 tournament in our hemisphere. Success, it would seem, just not Nintendo's.

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Posted on Techdirt - 3 December 2020 @ 7:52pm

Nikola's Bad Quarter: Company's Deal For General Motors Ownership Stake Goes Sideways

from the fallout dept

The trouble for Nikola Motor Company began only in September, a couple of months ago. That's when a hedge fund very publicly called out the company and its founder, Trevor Milton, for essentially fooling people with doctored video of its electric semi-truck product to get them to invest in the company. This led to rumors of federal investigations, the resignation of Milton, and the company idiotically trying to use copyright takedowns to silence its critics. All of this was likely in the service of trying to save a very public $2 billion deal with General Motors that was due to be closed upon in early December.

Well, what was Nikola's bad month is turning into a very bad quarter, as the General Motors deal has gone fairly sideways.

Nikola (NKLA) won’t have General Motors (GM) as an investor, at least for right now.

The electric truck maker said on Monday it has revised the terms of a prior deal with GM, and that the auto giant won’t be taking a stake in Nikola. The two companies will not work together to produce Nikola’s pickup truck, the Badger. Nikola’s shares were down more than 21% in pre-market trading.

The Badger was supposed to be a consumer pickup truck made in partnership with GM, utilizing GM's manufacturing and logistics operations alongside Nikola's electric batteries and drivetrain. But now, the general consensus is that this deal going under with GM has rendered the Badger completely dead.

EV and hydrogen truck start-up Nikola's deal with General Motors has fizzled, the EV startup revealed, after several weeks of speculation about a deal that would have seen the Michigan auto giant produce the Nikola Badger truck. Nikola indicated that it had reached a non-binding memorandum of understanding with GM regarding collaboration on GM's hydrogen technology for large trucks, but that the pickup aimed at private consumers was not currently contemplated with GM backing. In fact, the Badger now appears entirely dead, with Nikola indicating that it will refund deposits for the EV truck.

For its part, Nikola is pointing to the deal with GM not being completely dead. Instead, the company is going to focus on producing semi-trucks that GM will make the fuel-cell technology for. The deal is now essentially a basic supply partnership, but the real impact of the change of deal terms is that GM has backed away from taking an ownership stake in Nikola.

But Dan Ives of Wedbush Securities writes in a new note that the “headline” from the new agreement is that GM won’t be taking a stake in Nikola — and that news “will be viewed as a clear negative.”

“This went from a game changer deal for Nikola to a good supply partnership but nothing to write home about and the Street will be disappointed accordingly along with lingering lockup worries,” Ives wrote.

All because the company's founder wanted to pretend like it had a produced a product that did something that it absolutely did not. It sure seems like it would have been better for the company overall if it had just told the truth.

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Posted on Techdirt - 30 November 2020 @ 7:37pm

GTA5: A Living World Eyeing A Decade Of Rabid Play Instead Of Just A 'Game'

from the ongoing-trends dept

A little over five years ago, I wrote about the seeming emergence of a new trend in the video game space: living and evolving game worlds instead of single-serving "games". While MMOs and other online games certainly weren't new even then, what with World of Warcraft having a decade under its belt at that point, the post did focus on several game publishers beginning to make noises about focusing on these breathing ongoing experiences rather than selling shiny discs, or even digital downloads of one-and-done games. And if that trend became the norm, it really would change the industry. Development cycles for the release of games wouldn't so much be a thing compared with the ongoing and time-spanning development that would go into consistently creating new experiences within an existing game. For those interested in the gaming industry, or those concerned with how traditional development cycles and "crunch" have impacted design labor, this really could be something of an inflection point.

Five years later, this trend has only gotten more prevalent. There are many examples of living, breathing game worlds out there to choose from, but the example I will use is Grand Theft Auto 5, which has been an active hit for so long that it literally passed by a console generation. The game was originally released in 2013 as a single-player game, only to have its online component launch shortly after, putting it in the ongoing development cycle.

Grand Theft Auto V, in case you forget, was first released on the Xbox 360 and PS3 in September 2013. It didn’t arrive on the PS4 and Xbox One until 2014.

Let that wash over you for just a second. A single video game that was released before the PS4 and Xbox One even hit the shelves has remained both culturally relevant and commercially successful throughout those console’s entire lifetimes, and will now see an even longer shelf-life once it is released on the PS5 and Xbox Series X.

To give you an idea of just how long ago that was, the game was released with a trailer that spoke to America’s attempts to recover from its last financial meltdown, and there’s been time to have had another since. Other games on the best-selling list for September 2013 include Diablo III, Disney Infinity and Saints Row IV.

And, again, the game is still in active development, both on the online and first-person side of things. There will be an updated version of the game that comes out on the next generation of consoles, while the online community is still actively involved and playing in all of the new updates and releases Rockstar has continued to create.

The success of the game has far-reaching implications. Rockstar Games, with its own notorious reputation of putting its developers through so-called "crunch" periods, notably isn't suffering from a ton of stories of crunch when it comes to the developers of the ongoing GTA5 world. Which makes sense: the deadlines are more squishy than getting out a AAA single-player game. It also means potentially less individual games coming out, which may be a good or bad thing depending on your perspective. For reference, The PS2-era of consoles saw three GTA games get released, while the PS3 had 2 and the PS4's only GTA game was the port of GTA5.

All of that is because the development efforts are going into a lasting game with a ton of gaming participation, even seven-plus years after its release. If the gaming public is happy enough with that, then so be it. But it's going to change the industry as this trend continues.

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Posted on Techdirt - 25 November 2020 @ 10:45am

Disappointing: Netflix Decides To Settle With Chooseco LLC Over 'Bandersnatch' Lawsuit

from the sigh dept

Well, it's been quite a stupid and frustrating run in the trademark lawsuit between Netflix and Chooseco LLC, the folks behind Choose Your Own Adventure books from our youth. At issue was the Black Mirror production Bandersnatch, in which the viewer takes part in an interactive film where they help decide the outcome. The main character is creating a book he refers to as a "choose your own adventure" book. Chooseco also complained that the dark nature of the film would make the public think less of CYOA books as a result. Netflix fought back hard, arguing for a dismissal on First Amendment grounds, since the film is a work of art and the limited use or reference to CYOA books was an important, though small, part of that art. The court decided that any such argument was better made at trial and allowed this madness to proceed, leading Netflix to petition for the cancellation of Chooseco's trademark entirely. This story all seemed to be speeding towards an appropriately impactful conclusion.

But reality has apparently turned us to the wrong page of the story. Netflix and Chooseco have reached a settlement, predictably short on details save for one very specific area.

On Monday, at a status conference before U.S. District Court Judge William Sessions III, the parties revealed that they had reached a settlement. While terms weren't released, the parties did tell the judge of one slightly unusual condition — the judge's February 2020 opinion denying Netflix's dismissal motion would have to be vacated. Sessions agreed to the demand. He chose to pretend he never questioned whether Netflix's film was explicitly misleading.

I'll admit that last bit has me a bit flummoxed. I haven't run into this sort of thing previously, where a case is settled and a previous order by a judge refusing dismissal of said case is vacated. I have pinged a couple of lawyers and have gotten mostly shrugs. The most I can say about it from digging around is that Netflix may not have wanted some precedent-setting ruling like this officially on the books for one reason or another.

The rest of the settlement details are not for public consumption. Without those details, it's difficult to know just who won out here, though it's notable that Chooseco appears to be keeping, and even expanding, it's trademark rights on "Choose Your Own Adventure." I could speculate that the threat to the mark was enough to get the company to mostly back off Netflix.

But that's the frustration here, honestly. Netflix raised some important First Amendment concerns in its defense, concerns that deserve a day in court. For now, at least, this one dumb lawsuit is over.

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Posted on Techdirt - 24 November 2020 @ 7:55pm

Mine, Mine, Mine! Nintendo Neuters The Cool Ways People, Groups Are Using 'Animal Crossing'

from the nintendon't dept

To be honest, Animal Crossing was always going to be a hit. It's just the perfect distillation of the Nintendo experience: a cutesy social experience couched in harmless video game fun. Still, one unanticipated side effect of the global COVID-19 pandemic was how plenty of people and groups turned to the game for new and innovative ways of connecting with others. Examples abound, including players building a real-world economy around the game's resources, TV stars plying a version of their trade in the game, protests and social movements springing up in the game's world, and even the use of the game as part of the presidential election campaign. Mostly absent was any pushback from the gaming community. Instead, these few instances of crossover from real world to gaming world appeared to simply show the power of what Nintendo had created: an open and innovative gaming experience based on community and unbridled social interaction.

That description, of course, is about as historically un-Nintendo as it gets, so perhaps it's not entirely surprising that a recent update from Nintendo over its usage terms for the game seems to squarely aim to neuter much of this. In a post titled "Animal Crossing: New Horizons usage guidelines for businesses and organizations", which you can read for yourself in its entirety, Nintendo prohibits groups and organizations from doing the following:

However, please observe the following points when you engage in these activities.

Please be aware of the game rating and do not engage in activities that go beyond the rating.

Please refrain from using the Game inappropriately or creating any content within the Game that would be considered vulgar, discriminatory, or offensive. Please also refrain from bringing politics into the Game.

Please do not share false information about the Game with anyone, and do not deceive others while using the Game (e.g. falsely indicating you are separately licensed or otherwise approved by Nintendo).

Please do not leverage the Game as a marketing platform that directs people to activities or campaigns outside the game (including directing people to a sales page, distributing coupons, sweepstakes, giveaways, requiring consumers to follow social network services accounts, gathering customers’ information, or other invitational activities).

You are not allowed to obtain any financial benefit from using the Game (including selling your Custom Design or earning any advertising revenue with the Game content).

Now, some of these prohibitions are reasonable, albeit quite vague. No, you shouldn't falsely imply sanctioning by Nintendo; no, you shouldn't break the game's age rating through your actions.

But reading those guidelines pretty clearly also prohibits several of the cool interactions we detailed in the opening. Making any money from selling the game's resources to other gamers. Starting social movements within the game. And if all politics in the game are banned, there goes the innovative organizing use by Biden or other politicians as well.

And on that last bit about removing all politics from the game world: good fucking luck. This is a game built on social interaction and, since politics in 2020 has managed to invade every last crevice of our over-bloated society, it's going to come up. I imagine Nintendo mostly wants to limit official campaign actions within the game, which is stupid in and of itself. Still, building a social game and then telling customers how they can be social is simply not going to work.

Again, it's not surprising: this is as Nintendo as it gets. But it is certainly disappointing.

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Posted on Techdirt - 23 November 2020 @ 10:51am

Ridiculous: 'Cyberpunk 2077' Will Ship With A Mode Just To Help Streamers Avoid DMCA Notices

from the thanks-twitch dept

You will likely have been following along with us as we have steadily commented on the ongoing controversy at Twitch. But if you're not read up on the topic, Twitch suddenly nuked zillions of hours of recorded content made by Twitch streamers in response to RIAA and game publisher DMCA notices, all without warning and all without a way to counternotice or get any of that content back. As the community went into revolt, Twitch continued taking down content, at times for sound effects within the games streamers were streaming. All the while, Twitch has issued a steady stream of apologies, while the streamer community has basically just shouted "Well then do something!" in response.

But Twitch hasn't done anything. Not a damned thing. Which means it's been left to the forward-thinking game publishers that actually realize how beneficial these streamers are to their own success to do something instead. To that end, it's both great that CD Projekt Red has announced the forthcoming blockbuster Cyberpunk 2077 will have a game mode dedicated to using stream-safe music for streamers... and completely ridiculous that the publisher even has to do something like this.

During the latest installment of long-form Cyberpunk commercial series “Night City Wire,” UK head of communications Hollie Bennett explained that the game will have a mode that will not only remove licensed music from the in-game rotation but replace it with music that won’t get creators’ channels zapped out of existence. Handy!

“If you’re planning on livestreaming Cyberpunk, or if you just want to make videos, we want to introduce you to a new mode that will allow you to disable certain copyrighted tracks,” Bennett said. “We know that for content creators, licensed music can sometimes be problematic. So with this new mode, you’ll be able to disable a small number of selected tracks which could cause some issues, replacing them with a different song—helping to avoid any problems.”

So because Amazon-owned Twitch couldn't be bothered to simply license the music in games in some sort of blanket manner, and because the music industry is so cartoonishly impermissive with its content, a game publisher has to step in to help. This comes as part of CD Projekt Red's long history of being fan and public friendly, but it really shouldn't have had to take such measures. Somebody somewhere along the way should have been on the side of the streamers who make these game products more popular, leading to more sales.

It’s still far from an ideal solution—nothing short of Amazon and Twitch striking a licensing deal with the music industry would be—but for now, it will have to do.

For now it will indeed have to do. But it sure would be nice if streaming platforms generally, and Twitch in particular, could get their collective heads out of their asses long enough to get their shit together and support their communities.

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Posted on Techdirt - 20 November 2020 @ 7:39pm

Microsoft: Bethesda Games Will Be 'First, Best' On Xbox, PC

from the fragmentation dept

Several weeks back, we discussed how Microsoft and its newly acquired property, Bethesda Softworks, were making seemingly conflicting statements on what the purchase of the studio meant for beloved franchises like Fallout and Elder Scrolls, among others. Concerns popped up immediately after the acquisition, with people wondering whether the next Fallout game would be siloed to the Xbox and/or PC, as opposed to showing up on other consoles, such as Sony's PlayStation. Xbox's Phil Spencer kicked the concern into overdrive by noting that he thought Microsoft could recoup its purchase price of Bethesda even if the studio's games weren't sold for the PlayStation. Todd Howard of Bethesda, however, said the studio is committed to making its games available across platforms, while also acknowledging such details with Microsoft hadn't been ironed out.

And so the public was left wondering. Well, now Microsoft has once again commented publicly, this time stating that it doesn't plan to restrict Bethesda games from other consoles, but would instead look to make those games "first and best" on the Xbox and PC.

Speaking at the Jeffries Interactive Entertainment Virtual Conference last Friday (as transcribed by Seeking Alpha), Stuart said directly that "in the long run... we don't have intentions of just pulling all of Bethesda content out of Sony or Nintendo or otherwise. But what we want is we want that content, in the long run, to be either first or better or best or pick your differentiated experience, on our platforms."

"That's not a point about being exclusive," Stuart continued. "That's not a point about... adjusting timing or content or road map. But if you think about something like Game Pass, if it shows up best in Game Pass, that's what we want to see, and we want to drive our Game Pass subscriber base through that Bethesda pipeline."

This, frankly, clarifies nothing. Stating that perhaps games will be "first" on Microsoft's platforms and then stating that it has nothing to do with timing of the release on other platforms is contradictory. If it's "first" on one platform, it must therefore be at least "second" on others. Likewise, stating you want a game to be "best" on Microsoft platforms and then stating it has nothing to do with content is, again, contradictory. If not the content, what could possibly make a game better on one platform than the other.

It's unclear why Microsoft is remaining so opaque about all of this, but it sure sounds like some version of either EPIC's timed exclusives or Sony's exclusive content for games. Both are controversial in their own rights, and likely not great for the gaming ecosystem as a whole, but at least both companies play it straight with their customers.

In this case, we all just have to wait and see how high a fence Microsoft does or does not want to put around these beloved game franchises.

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Posted on Techdirt - 19 November 2020 @ 7:49pm

Beijing Tightens Grip On Hong Kong With Arrest Of Pro-Democracy Lawmakers

from the seeing-red dept

Literally everyone saw this coming. On the heels of a rushed through resolution out of mainland China that ousted four pro-democracy Hong Kong lawmakers, leading to the resignation of every other pro-democracy lawmaker as well, the question was when, not if, Beijing would continue to tighten its communist grip. The answer to that question appears to be "almost immediately", with China announcing the arrest of three pro-democracy former lawmakers, likely a signal to any other opposition forces who might want to make any noise.

Posts on the Facebook accounts of Ted Hui, Eddie Chu and Raymond Chan said they were arrested in relation to the incidents in the legislature’s main chamber. The trio separately disrupted legislative meetings by splashing pungent liquids and other items on two occasions.

Hong Kong police said in a statement that they arrested three former lawmakers on charges of contempt in the legislature and intent to cause harm to others. Police did not identify them by name.

The information offered up by Beijing is made to make all of this sound like it is arresting lawmakers for putting other legislators in danger. Given the source, that accusation should be taken with a grain of salt. For example, Chi-Fung (Ted) Hui's antics in disrupting the legislature were very much about the disruption and nothing to do with putting anyone in danger. For Christ's sake, the "weapon" for his intent to cause harm to others appears to be some rotted plant material.

On 28 May 2020, Hui disrupted the second reading of the National Anthem Bill in the Legislative Council by dropping a container containing rotten plant matter inside the chamber. A fellow lawmaker was taken to hospital after being exposed to the smell. On 4 June 2020, Hui and two other lawmakers, Eddie Chu and Raymond Chan, were alleged with hindering the business of the Legislative Council and violating the Powers and Privileges Ordinance, with Hui having dropped foul smelling liquid during the LegCo session on that day.

For this, apparently, Hui is under arrest. But what should really be striking you about all of this is the complete absence of international pushback generally and the dereliction of American leadership in promoting democracy specifically. Our government is all but absent on the international stage at the moment, with the gears of government mostly churning out a plan for COVID-19 vaccination while senior leadership is focused on promoting nonsense conspiracy theories over an election it lost and otherwise sulking.

It appears that China views the remaining few weeks of the current administration as its window for the takeover of Hong Kong. And, given the absence of leadership at the present, it's not hard to see why. The only remaining question is just what the state of affairs in Hong Kong will be when Joe Biden is sworn in as President.

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Posted on Techdirt - 19 November 2020 @ 3:34am

Twitch's No Good, Very Bad Time Continues: Part 2

from the pay-to-play dept

I won't write up a big summary of the ongoing turmoil in the Twitch community for this post. If you need to be brought up to speed, go see Part 1 or our previous posts on the platform. The only summary you really need is that the past few months have seen Twitch piss nearly everyone off by doing two things. First, it bowed to the RIAA over DMCA notices and nuked a ton of creator content without warning. Second, Twitch began experimenting with very intrusive ads, along with other methods for monetizing creator content. The PR communication coming from Twitch over all of this has been wanting, to say the least.

But now it looks like Twitch is looking to tie a bow around both controversies to continue to piss off its talent even more, having announced that the once-sought-after Twitch Affiliate status, earned through a streamer's ability to get consistent eyeballs, has now been reduced to a pay-to-play scheme involving at least one record label.

Here's the text from Twitch's Affiliate site detailing who qualifies.

Who qualifies?

We’re looking for streamers who aren’t yet Partners, but who have at least 50 followers and over the last 30 days have have at least 500 total minutes broadcast, 7 unique broadcast days, and an average of 3 or more concurrent viewers. This criteria may change as the program develops.

That's been upended by this new deal worked out with music label Monstercat.

Monstercat outlined the new program in a post on its website today. If streamers subscribe to Monstercat Gold for $5 per month, they now gain access not only to a library of songs they can play during their streams, but also Twitch affiliate status. Affiliate is Twitch’s first monetization tier, which allows streamers to gain paid subscribers and Bits, which are basically a donation currency. Before this year, the only way to become an affiliate was to unlock it by having at least 50 followers, 500 total minutes broadcast, an average of 3 or more concurrent viewers, and streaming on 7 different days.

This is similar to a program that Twitch launched with SoundCloud earlier this year, which allowed SoundCloud subscribers to get fast-tracked to affiliate status. But that promotion was focused on musicians. This one, theoretically, is aimed at everybody.

In other words, for $5 a month, you can be a Twitch affiliate. If it seems like that makes the affiliate program mostly meaningless other than as a revenue source for both a music label and Twitch, that's because it does. It also comes after years of Twitch guarding its affiliate status behind merit-based metrics, which led to a ton of work being done by Twitch streamers to get that status. This is a slap in the face to all of those streamers that earned their status as opposed to paying for it.

“This seems amazingly unfair to all those folks who have worked hard to get to affiliate, but it also feels like it lessens the value of an affiliate status if you can just buy your way in,” Spawn On Me’s Kahlief Adams said on Twitter.

“I think this is not good, kind of gross, and...a little exploitative?” said commentator and streamer Thom “F.” Badinger. “Also depressing how the platform sees its creators with an issue and thinks of it as a monetization opportunity vs something they should help with.”

This Monstercat promotion, then, just turns long-simmering subtext into text: Affiliate and partner status don’t mean anything. They’re just means of incentivizing streamers to do what Twitch wants. Before, that was streaming. Now it’s giving money to companies with which Twitch has made deals. Twitch business partners, at least, must be pleased.

All of which seems to suggest that Twitch doesn't understand that its most valuable asset is the talent that chooses to stream on Twitch. Without good streamers producing good content, Twitch is a nothing. And the consistent drumbeat pissing off that talent cannot possibly be good for Twitch in the near or long term.

Honestly, at this point I'm mostly just waiting to see what Act 3 of Twitch's No Good, Very Bad Time will be.

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Posted on Techdirt - 18 November 2020 @ 8:21pm

Twitch's No Good, Very Bad Time Continues: Part 1

from the what-a-con dept

I'm beginning to wonder if the folks that run Twitch are secretly attempting to commit corporate suicide. The past several weeks have seen the popular streaming platform embroiled in controversy. It began when, in response to the RIAA labels DMCA attacks on streamers, Twitch took the unprecedented step to simply nuke a zillion hours of recorded content without warning its creators. In the wake of that, the platform kept essentially silent on its actions, simply advising its creators that they should "learn about copyright". In lieu of any real crisis communication, Twitch instead rolled out the release of a new emoji, pissing everyone off. Then came Twitch's apology, where the Amazon-owned platform acknowledged that it really should have had a method for letting streamers know which content was accused of infringement instead of nuking it all, while also continuing the DMCApocalypse, getting so granular as to allow streamers to be targeted by DMCA claims on game music and sound effects, including on videos that had already been taken down.

With its creators and patrons both in full revolt, it probably wasn't the best timing that Twitch's GlitchCon remote convention took place mid-November. Complaints about the convention were far-reaching, but much of it centered on the coin spent promoting it instead of Amazon simply licensing music so streamers could stream, along with the terse commentary on the turmoil itself.

We'll start with the promotion of the event.

The convention took place on November 14, but a difficult-to-ignore sensation of dissonance began to creep in before it even kicked off. To promote the event, Twitch sent themed trailers decked out with Twitch merch to select streamers—which streamers began tweeting about on November 13. While the streamers who’d received the vehicles seemed pleased, the response from many others was uniform: Why was Twitch spending money on glitzy trailers when it should’ve been putting every penny it could toward licensing music, thereby beheading the DMCA dragon currently terrorizing the platform?

Of course, the teams at Twitch that handle event planning and DMCA-related matters are very different, and this question ignores the reality of how budgeting tends to work at large companies. However, the broader sentiment from streamers was understandable; over the course of the past month, Twitch has massively eroded community trust by leaving streamers high and dry when the music industry finally came to collect its toll, forcing streamers to delete their entire histories instead of providing them with alternatives—or even accessible means of contesting copyright claims. During the lead-up to GlitchCon, streamers were not exactly in a celebratory mood.

As Kotaku notes, it's not entirely fair to simply claim that the money spent promoting GlitchCon should have been spent on music licensing instead. But it's not entirely unfair either, and the larger point is that Twitch did this to itself. By acting so callous with the work of its creators, and by then spending promotional budget dollars in a way that reminds everyone that this is a company backed by Amazon, it was inevitable that creators would throw up their hands in disgust. Whatever we might want to say about the imperfection of copyright laws, or the broken method by which copyright is policed at scale by platforms like Twitch, it most certainly is true that Amazon/Twitch could have avoided literally all of this by simply licensing a bunch of RIAA music. It's not like Amazon couldn't have afforded it. But, instead, Twitch's creators got screwed.

But when Twitch CEO Emmett Shear gave his keynote to kick off GlitchCon, the pushing of any information off to a future Q&A coupled with the highlighting just how bad a job his company did in supporting streamers felt like the worst of all worlds.

“It’s obvious that many of you want and deserve a lot more information from us, and a 10-minute Q&A session wouldn’t even come close to the level of depth of conversation that we want to have with you,” he said, noting that there will be a town hall devoted to the topic of DMCAs next month. He proceeded to apologize, largely reiterating what Twitch said in an apology letter it posted last week.

“If you receive a DMCA takedown, you should be able to know exactly what the content is or, if you believe you are authorized, you should know how to contest the takedown. I believe it’s a failing of our email to creators on October 20 that we didn’t include enough of this information, and it’s an issue with our current systems that we’re working to improve,” Shear said during the GlitchCon keynote. “We should have had better tools for you to manage your content, and we wish we did. We’re sorry those tools weren’t available when you needed them and that so many creators had to delete their videos capturing their communities’ best moments and accomplishments.”

Who this message was supposed to please is entirely unclear to me. Great, Twitch has acknowledged that it failed to support its creators with the tools necessary to do DMCA takedowns and restoration correctly. The first step to correcting a problem, as they say, is acknowledging you have a problem. But then announcing that the Twitch community deserves a ton of answers here, but they won't get them for another month? That's damned near self-immolation in the tech space. A glitzy convention put on without addressing a community in near revolt...why? Why in the world would you even take that virtual stage without being prepared to address the controversy?

It's not surprising that the reaction from the Twitch community was largely negative. And, because of Twitch's bullheaded approach to mostly ignoring all of this, that negativity overshadowed the rest of the convention, including some fairly positive happenings at Twitch.

Attempted corporate suicide is starting to look like a term bereft of exaggeration.

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Posted on Techdirt - 17 November 2020 @ 7:41pm

Hugo Boss And Art Teacher Reach 'Amicable Solution' Over 'Be Boss, Be Kind' Trademark Application

from the who's-the-boss? dept

Several weeks back, we discussed how Hugo Boss, German upscale clothier, had opposed the trademark application for an artist who has taken to teaching online art classes during the pandemic. At issue was John Charles' decision to apply for a trademark on the phrase he used to sign off at the end of these classes: "Be Boss, Be Kind." That he had begun selling shirts and hats with the slogan on it, alongside the trademark application, was enough to get Hugo Boss' lawyers working on opposing the application and sending a legal threat letter to Charles, despite the fact that any claims about potential customer confusion between the two entities is laughable at best.

As we noted at the time, while any legal letter such as this is at least mildly scary for someone like Charles, it should be stated that Hugo Boss wasn't overly threatening in the letter. Instead, the letter stated that the company would be opposing the trademark application, but was willing to drop the matter entirely if that application was withdrawn. In public comments, too, Hugo Boss made it clear that it was looking for an amicable resolution to the situation.

And that, almost certainly in large part to the swift public backlash that occurred, is precisely what happened.

Now, Hugo Boss and the popular artist have reached an 'amicable solution' - and John has said 'it was all worth it.'

John said: 'We've now reached an amicable solution and the key thing is that we're able to continue our free online art classes and release our merchandise to the public officially. I'd like to say a massive thank you to the public for all their support, it's been really overwhelming."

As usual, the exact details of this amicable solution aren't explained publicly, but it's worth noting that nowhere in any of the coverage currently is the acknowledgement that Charles has been allowed to proceed with his trademark application. And that, frankly, is the detail we should be focused on. Yes, it's good that Hugo Boss isn't threatening Charles with legal action. Yes, it's also good that he's being allowed to continue his art classes and even sell his merch with the slogan. That's somewhat more permissive than I expected out of Hugo Boss.

But there was never a valid trademark issue here in the first place and, while I don't really see why Charles needs this trademark for which he applied, he certainly should have gotten it. "Be Boss, Be Kind" is not going to confuse someone into thinking a t-shirt is a Hugo Boss t-shirt. The reach of Charles' audience isn't a threat to Hugo Boss, either. No part of this screamed for a resolution of anything at all, amicable or otherwise.

It's sort of an offshoot of how trademark bullying is effective. On the one hand, a large enough company can bully smaller entities into not using anything remotely like its registered trademark, validly or otherwise, just because of the costs associated with those threats. Or there are cases such as this, where the big company can bully the smaller entity until it gets news coverage talking about a supposedly amicable deal.

Both are pernicious, if not equally so.

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Posted on Techdirt - 16 November 2020 @ 7:51pm

Twitch Continues To Trip Over Itself In Response To DMCA Apocalypse

from the do-better dept

What a few weeks for Twitch. You will recall that the platform went about pissing a ton of its talent and viewers off by nuking a metric ton of video content on the site in response to a flood of DMCA takedown notices, most of them from the RIAA. And this truly was the nuclear option, far different from the notice/counternotice system most platforms use. In fact, it was so extraordinary that it arguably lost Twitch its DMCA safe harbor. Regardless, when the company then followed up with a message to all Twitch creators that they should go educate themselves on matters of copyright and proactively delete any recordings or clips that might run afoul of copyright law, it created a cluster-fuck with virtually nobody having any idea how or what they should be doing. In response to the turmoil, Twitch brilliantly rolled out an announcement for a new emoji.

And it just keeps getting worse. This week, Twitch has finally come out with an apology to its talent, noting that the company, bought by Amazon in 2014, probably should have been able to provide better tools and a system that wouldn't have required the mass deletion of millions of hours of recorded content.

“You’re rightly upset that the only option we provided was a mass deletion tool for Clips, and that we only gave you three-days notice to use this tool,” the company wrote. “We could have developed more sophisticated, user-friendly tools awhile ago. That we didn’t is on us. And we could have provided creators with a longer time period to address their VOD and Clip libraries—that was a miss as well. We’re truly sorry for these mistakes, and we’ll do better.”

Twitch also committed to developing additional tools that will hopefully grant streamers more granular control over their recorded content, audio, and reviewing/contesting copyright claims, but it did not provide a release date for those much-needed features. It went on to try and explain why it doesn’t just obtain music licensing rights like Facebook has for its livestreaming platform, but while it said that those solutions won’t work for Twitch in particular, it stopped short of explaining exactly why.

So, apology with a side of obfuscation that doesn't actually put creators in any better a place than they were yesterday. There's still no way to counternotice. No commitment from Twitch to supporting creators' rights when it comes to fair use. And the explanation that a licensing deal with the music labels would take too much money away from Twitch creators considering how sparingly they use music in their streams comes along with two problems. The first problem is that the statement leads to an obvious question: You're Amazon; why don't you just eat the licensing costs and let us create?

But the second problem is that the DCMA apocalypse is continuing and it's starting to get ridiculously granular.

This comes during an especially turbulent week on the DMCA front. In the past few days, streamers have reported getting targeted by copyright claims and Twitch’s automated systems for music and sound effects in games, as well as clips they’ve already deleted. One streamer, MichalRonin, had his audio auto-muted for broadcasting a wind gust sound in World of Warcraft.

“Only music I’ve had on stream was in-game WoW music, played by the game itself,” MichalRonin wrote on Twitter yesterday. “Yet I’ve got ‘muted audio’ on the latest VOD, apparently in Sen’Jin village.” He then posted a screenshot that mentioned a “Medium Wind Storm with Gusts, Whistles and Low Rumble” sound effect from the Hollywood Edge Sound Effects Library.

This example was one of many. If DMCA notices are suddenly going to start coming in and being acted upon over video game sound effects, never mind the game music that comes along with streaming a let's-play, then Twitch is essentially over. On top of that, some streamers report that even covers of video game music are getting caught up in the DMCA takedowns. Still others received strikes for content that had already been deleted.

Streamer JasonParadise deleted all of his clips on October 23, the day Twitch resumed regular DMCA processing after holding back thousands for a handful of months.

“What the fuck was the point of deleting all of my VODs/clips back on October 23rd? The strike on an old clip (that no longer existed) came in ten days later,” he wrote on Twitter.

Questions to Twitch about all of the above by the media have gone entirely unanswered as of the time of this writing. It all paints a picture of a popular and well-traveled platform with a parent company that ought to be able to provide all of the capital, platform tools, and public messaging in the world... instead having none of that.

And with YouTube once again making a strong play for these kinds of streamers, one wonders just how long it all can last.

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Posted on Techdirt - 13 November 2020 @ 7:39pm

Donald Trump Argues That Use Of 'Electric Avenue' In Campaign Video Was Transformative

from the um,-no dept

The election is over and, no matter the current administration's flailings, Joe Biden is now President Elect. It was, well, quite a campaign season, filled with loud interruptions, a deluge of lies, and some of the most bizarre presidential behavior on record. And, rather than running on his own record, the Trump Campaign mostly went 100% negative, filling the digital space with all kinds of hits on Biden.

One of those was a crudely put together video that showed a Trump/Pence train zipping by on some tracks, with a Biden hand-car chugging behind him. On the Biden train car were fun references to smelling hair and other childish digs. Some clips of Biden speaking made up the audio for the spot, along with the hit song from 1983 "Electric Avenue." Tweeted out on Trump's personal Twitter account, it turns out that nobody had licensed the song for the video, leading Eddy Grant to sue the President.

Trump's defense in a motion to dismiss is... fair use. How? Well...

His campaign argues that it was transformative to use the song over a cartoon version of Joe Biden driving an old-fashioned train car interspersed with his rival's speeches.

"The purpose of the Animation is not to disseminate the Song or to supplant sales of the original Song," states the motion. The motion points to lyrics from "Electric Carnival": “[N]ow in the street, there is violence... And a lots of work to be done.”

"These lyrics, however, stand in stark juxtaposition to the comedic nature of the animated caricature of Former VP Biden, squatting and pumping a handcar with a sign that says, 'Your Hair Smells Terrific', and to the excerpt of the overlayed speech that references 'hairy legs' and kids playing with his leg hair. Obviously, Mr. Grant’s purpose of creating a meaningful song for the pop music market is completely different from the Animation creator’s purpose of using the song 'to denigrate ... Former Vice President Joseph Biden.'”

On that last bit, we can agree. However, using the song in a campaign ad meant to denigrate Joe Biden no more makes that use transformative than if a grocery store used it to sell steaks. That isn't what makes the use transformative, despite my near certainty that Eddy Grant didn't intend to sell steaks with "Electric Avenue".

The motion goes on to suggest that nobody is going to go watch the campaign video instead of buying Grant's song, therefore the use doesn't effect the market for the song. While true, the claims about the other two factors in considering fair use -- the nature of the copyrighted work and the portion of the work used -- don't sound particularly convincing. The motion says that the video only used 17% of the song in the video, or forty seconds of the song in total. Again, true, except that the video itself is something like 50 seconds long, so the copyrighted work is playing for nearly the entire video. And it's played prominently.

As to the nature of the copyrighted work... hoo boy.

Here, the Song is a creative work, but it was published in 1983 (Compl. ¶ 25), and it remains, more than 37 years later, available to the public. This weighs in favor of fair use.

Um, no. The fact that it's a creative work, as opposed to one comprised of factual information, weighs against fair use, not for it. It being published in the 80s and still available now is, well, completely besides the fucking point.

I will be absolutely shocked if this motion isn't laughed out of the courthouse.

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Posted on Techdirt - 12 November 2020 @ 7:56pm

Beijing Ends Democracy In Hong Kong By Ousting Pro-Democracy Lawmakers

from the game-over dept

In the aftermath of our recent election, with all of the exuberance on one side and the laughable claims of stolen elections on the other, one underlying concern discussed before the election seems to have gone by the wayside: what happens in the last days of the Trump presidency if he loses? You heard the most prevalent concerns in the immediate runup to election day, which typically amounted to wondering aloud what unhinged or corrupt shit Dear Leader would get up to when his Dear-Leadership suddenly carried an expiration date? It was, frankly, a fair concern to have.

But there is a flip side to that fear: what will other countries do in the final days of the Trump presidency, particularly those that have gotten used to his lax attitude towards authoritarianism, human rights abuses, and most of the goings-on around the world? Would Russia attempt to gobble up more previously-Soviet territory, a la Crimea? Would Saudi Arabia carry out more brutal attacks on journalists critical of the Saudi Royal Family? Would China give up its slow-crawl dismantling of democracy in Hong Kong and just try to take over?

Well, on that last one at least, we now know the answer is yes. In fact, it was only in the wake of the election in America being called for President Elect Biden that China rushed through a resolution to oust four pro-democracy members of the Hong Kong government, seemingly for being too anti-Beijing.

The Chinese Parliament on Wednesday adopted a resolution that pushed out four pro-democracy lawmakers in Hong Kong, prompting more than a dozen of their colleagues to resign en masse.

According to The Associated Press, China’s National People’s Congress Standing Committee passed a directive stating that any lawmaker may be removed from their position if they support Hong Kong’s independence, refuse to recognize China’s authority over the city, threaten national security or call for external intervention in its affairs.

Pay no mind to that language in the directive. As with all things mainland China, one must look at all of this through Orwellian eyes. The language in the directive is meant to sound just reasonable enough to remain full vague, which allows Beijing to yank away any lawmakers that say things the Communist Party doesn't like. Those sorts of utterances include anything pro-American, anything pro-democracy, or anything that promotes independent governance of Hong Kong. That the ouster of four members of the government immediately prompted fifteen more assembly members to resign, leaving literally zero assembly members that are not Beijing sycophants should tell you everything you need to know.

It's hard to overstate how brazen a ramp up of aggression this move represents. It was only months ago that protests in Hong Kong were raging and Carrie Lam pretended to back off from the mainland's odious new laws over the island city. What changed?

Well, between the COVID-19 pandemic gobbling up all the world's attention for a good chunk of the year combined with the vacuum left by a man-baby refusing to leave office gracefully, the Chinese government has probably determined that now is the time to make a move before the new administration sits in power. But if Beijing thought Hong Kong would go quietly, it hasn't been paying attention these past few years.

During the news conference, the lawmakers reportedly held hands and chanted, “Hong Kong add oil! Together we stand!” According to the AP, the phrase “add oil” is a direct translation of a Chinese expression of encouragement.

“My mission as a legislator to fight for democracy and freedom cannot continue, but I would certainly go along if Hong Kong people continue to fight for the core values of Hong Kong,” one of the disqualified members, Kwok Ka-Ki, told reporters, according to Reuters.

The protests will rage once more. And, whereas the American government as it currently stands once gave lip service to those protests, now the Chief Executive for the next several weeks is far too busy golfing and raging at election results to concern himself with democracy abroad.

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Posted on Techdirt - 11 November 2020 @ 7:40pm

Happy 20th Birthday To 'No One Lives Forever', The Classic PC Game That Can't Be Sold Today Thanks To IP

from the and-yet-it's-dead dept

There are a great many interesting arguments we tend to have over both the purpose of copyright law and how effectively its current application aligns with that purpose. Still, we are on fairly solid legal footing when we state that the main thrust of copyright was supposed to be to drive more and better content to the public. Much of the disagreement we tend to have with naysayers revolves around whether ever expanding rights coupled with protectionist attitudes truly results in more and better content for the public. We, to a large extent, say the current copyright bargain is horribly one-sided against the public interest. Detractors say, essentially, "nuh-uh!".

But if one were to distill the problems with the current state of copyright to their most basic forms, you would get No One Lives Forever. The classic PC shooter/spy game was released way back in 2000, times of antiquity in the PC gaming space. It was a critically acclaimed hit, mixing Deus Ex style shooter missions, spycraft, and an aesthetic style built on 1960s classic spy films. And, as RockPaperShotgun reminds us, No One Lives Forever celebrated its 20th birthday this November.

If you remember the game fondly, or perhaps if you never played it and are curious as to why there's so much love for the game, you might be thinking about going and getting a copy for yourself to play. Well, too bad. You can't.

FPS spy romp No One Lives Forever turns 20 today but alas Cate Archer is still confined to her room, unable to come out and play. The secret agent shooter has been tied up in legal gridlock for years. You’ll not find it for sale online aside from second-hand, but that hasn’t stopped RPS singing its praises all this time. A remaster still seems unlikely, but Nightdive Studios say they aren’t done trying to make it happen.

Legal gridlock is being extremely kind. Why you cannot buy this game is one of the most frustrating stories in intellectual property. We discussed much of this back in 2015. Nightdive Studios is a company that buys up the rights to older video games, updates and/or remasters them for modern gaming hardware, and then rereleases them. And we're talking about a professional operation that has managed to rerelease games like Doom 64, 7th Guest, and System Shock. In other words, these guys are legit and they know what they're doing.

And they really, really wanted to give No One Lives Forever the treatment. There was just one problem: nobody seems to know who holds the copyright for the game, but everyone independently has told Nightdive that they'll sue if they make the game. Warner Bros., Activision, and 20th Centry Fox all might own the copyright to the game, except that the paperwork for how the rights all shake out was contrived in a time before such records were digitized. So, someone owns the rights to this game. And Nightdive very much wants to work out an arrangement with whoever that someone is. But none of the three potential owners are willing to go hunt down the paperwork so such a deal could be worked out.

You can get a sense of how each is communicating with Nightdive from our original post on the subject.

"So we went back to Activision and, [after] numerous correspondence going back and forth, they replied that they thought they might have some rights, but that any records predated digital storage. So we're talking about a contract in a box someplace." Kuperman laughed. "The image I get is the end of Indiana Jones… somewhere in a box, maybe in the bowels of Activision, maybe it was shipped off to Iron Mountain or somewhere. And they confessed, they didn't have [their] hands on it. And they weren't sure that they even had any of those rights."

And yet Nightdive was also told by all three entities, independently mind you, that they might own some rights and would go find out if Nightdive tried to rerelease the game to see if they could sue over it. The end result is a game that can't be released legitimately to the public over rights three companies insist are important enough to sue over, but not so important that they should know if they even have those rights to begin with.

Which brings us back to the RPS post, five years later on the 20th birthday of No One Lives Forever, where we find out that essentially zero progress has been made.

As one of the best FPS games on PC, it seems plenty worthy of a remaster or re-release, but efforts on that front have died in the water over the past decade or more. Hit any one of those quoted links to get the evolving story, but the short version is this: Nightdive Studios, who want to modernise No One Lives Forever, don’t own the rights to it. More than one company might have legal claim to it, but none of them are terribly motivated to unearth stacks of paper contracts literally hidden in basements. They’re just sure they don’t want anyone else making money off it without them. So Cate’s all tied up in the super villain’s lair without a Deus Ex Machina to save her.

On that front, Nightdive recently told The Gamer that they aren’t done trying to make it happen. “It is a process that we’re continuing,” said director of business development Larry Kuperman. “We continue on with our mission to unearth and bring back these classic games.”

And so the public is flatly denied legitimate access to content that is a piece of our culture over copyrights nobody can say for sure if they have. I can't claim to crawl into the founding fathers' heads to say precisely how they wanted copyright to work, but it sure as shit can't be like this.

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Posted on Techdirt - 10 November 2020 @ 7:30pm

Netflix Gets Cute Using DMCA Notices To Take Down Tweets Critical Of 'Cuties'

from the too-cute-by-half dept

Cuties, the stupid non-controversy against Netflix that simply will not go away. The film, which won awards at international film festivals, centers on a pre-teen and is a coming of age story about a young lady growing up in both a strictly conservative upbringing combined with living in the hyper-sexualized Western culture. While the whole story is about this juxtaposition, Netflix rather stupidly promoted the film using images that focused on the latter. The result was chaos, with large swaths of Puritan-Twitter screaming about boycotting Netflix entirely and one pandering prosecutor in Texas bringing an indictment against Netflix for promotion of lewd visual material depicting a child.

With everyone very quickly lighting themselves on fire over an award winning film, Netflix sat back and calmly explained what the film was about and why it had... just kidding, Netflix is now out here issuing DMCA takedowns for those tweeting critiques of its decision to distribute the film.

Netflix's takedown requests, which are still rolling in today, seem only to have targeted tweets that described the film negatively, although some more than others.

"IMAGINE A CHILD SEEING THIS #Cuties #Netflix #CancelNetflixCuties," one message read. "WARNING CONTAINS EXPLICIT CONTENT," another similar message said. "Go ahead and try to justify how this film is an appropriate representation of 11 year olds. I'll wait. #CancelNetfilx."

Some of the dozens of tweets Netflix issued DMCA claims against used clips from the actual movie, TorrentFreak reports, in which case Netflix's claims are understandable. However, many of the tweets in question shared the film's trailer, which is widely and publicly available on YouTube for anyone to view or share.

DMCA takedowns of trailers, as we've explained before, never make sense. Ever. Ever ever. What Netflix is doing instead is lay bare its intentions behind these takedown notices, which are obviously centered on attempting to censor critical commentary around its decisions surrounding the film. This becomes especially apparent when put in the context for how and for what Netflix has, in the past, bothered issuing DMCA takedowns.

TorrentFreak notes that the cluster of claims is unusual for Netflix, which has sent roughly 300 DMCA claims to Twitter in the past month, half of which centered on tweets related to Cuties. Before Netflix started targeting Cuties tweets, most of the claims it sent were related to accounts known for distributing pirated content.

And so the Streisand Effect kicks in. By trying to bury criticism, the public becomes all the more aware of that criticism. By trying to censor a controversy that was probably juuuuuuust about to go away, instead it gets recycled back into the news cycle.

Netflix, tech company as it is, should absolutely know better. Reliant on the First Amendment as it is, it should absolutely not be taking actions like this that tamp down speech. And given that Netflix is not entirely without blame for the controversy in the first place, it sure would be nice if the company demonstrated skin thick enough to take a little heat now and again.

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