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Zachary Knight

About Zachary Knight

Nobody in particular. Just someone who feels very strongly about many aspects of technology and IP.

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Posted on Techdirt - 2 November 2012 @ 10:44am

Amazon Freaks Out About Sock Puppet Reviews And Deletes A Bunch Of Real Reviews

For a while now, there has been a bit of a kerfuffle at Amazon over so called “sock puppet reviews” or reviews purchased by an author to help pad their books' rankings. We hadn't been covering any of it because, frankly, it was a non-story. There never was a threat to the publishing industry and it was always questionable how widespread the problem really was. Additionally, the idea that a writer would have to pay to get reviews was just a sign that those writers held no real confidence in their work.

Unfortunately, Amazon took these complaints a little too seriously. It would seem that those complaining were loud enough that Amazon heard them and did a couple of things to tackle the non-issue. First it revised its rules for review writing. to make such purchased reviews against the rules. Then it removed a bunch of reviews seemingly at random. Joe Konrath shares his experience upon reading about this:

I've been buried in a book deadline for all of October, and haven't been paying much attention to anything else. When I finally took some time to catch up reading email, I noticed I had many authors (more than twenty) contacting me because their Amazon reviews were disappearing. Some were the ones they wrote. Some were for their books. One author told me that reviews her fans had written–fans that were completely unknown to her–had been deleted.

I took a look at the reviews I'd written, and saw more than fifty of them had been removed, namely reviews I did of my peers. I don't read reviews people give me, but I do keep track of numbers and averages, and I've also lost a fair amount of reviews.

Why did Amazon go nuts deleting reviews? Well, Konrath assumes, based on his responses from Amazon, that this was the result of a new automated sock puppet detection program. Apparently, it works in much the same way as Google's ContentID: flag anything and everything and see what sticks. Actually, no. This is way worse than ContentID. At least ContentID has some kind of — admittedly weak — notification, human review and appeals process. That is entirely absent from Amazon's deletion program, as Konrath explains in his letter to Amazon.

My reviews followed all of Amazon's guidelines, and had received hundreds of helpful votes. They informed customers, and they helped sell books. They represented a significant time investment on my part, and they were honest and accurate and fully disclosed my relationships with the author I reviewed if I happened to know them. And these reviews were deleted without warning or explanation.

Next, in his letter, he explains just why Amazon's actions were the wrong thing to do. Primarily because this action harmed more authors than sock puppet reviews ever did.

Obviously Amazon can do whatever it wants to on its site. It isn't up to me to dictate policy. It's your company, your rules, and I fully respect that. But I believe Jeff Bezos is very much about treating customers fairly, and I've heard it said many times that Amazon considers its authors to be valuable customers. So you should know that I'm just one of dozens of authors who are saddened by this, and those are just the ones who have emailed me.

The community you're trying hard to nurture is upset by your actions. They feel those actions are unwarranted and harmful.

Please express our disappointment in Amazon to anyone who needs hear it, and let them know I'll be blogging about it. People are seriously disappointed in how Amazon handled this. It was a knee-jerk, inappropriate reaction to a ridiculous case of unjustified moral panic, and a Big Fail.

Admittedly, this act by Amazon was in response to a number of authors who complained about the problem. However, as I wrote above, it was a problem of egos, not actual harm to any specific authors or group of authors — or as Konrath put it, an unjustified moral panic. Authors freaked out over news stories of people being paid to write reviews and it ballooned from there. And just like every other moral panic before it, this one did tons of unnecessary collateral damage.

So not only do a bunch of legitimate reviews just up and disappear, there is also further damage to Amazon and the authors it works with. Readers will be less likely to write thoughtful and meaningful reviews in the future. If your review that you spent an hour writing could just up and disappear, why bother? Is this really what Amazon and these authors want — people less willing to review books they read? That would seem to be a far worse situation than an unconfirmed number of sock puppet reviews.

Posted on Techdirt - 1 November 2012 @ 08:01pm

Adding Value While Correcting Player Behavior Through Positive Reinforcement

Hop onto most any online multiplayer forum or other chat site, and you will find horror story after horror story of foul mouthed, homophobic, misogynistic, racist rage quitters. Bad behavior has become almost synonymous with gaming online. Thankfully, many game developers are looking at ways to combat such behavior. While many companies have systems that punish bad behavior, some are looking in the opposite direction, of rewarding positive behavior.

League of Legends developer, Riot Games, has taken this latter approach. In a new system for fostering positive behavior, such as team work and friendliness, Riot has hired a group of experts to implement an honor system in its game.

Here’s the background: Six months ago, Riot established Team Player Behavior — affectionately called Team PB&J — a group of experts in psychology, neuroscience, and statistics (already, I am impressed). At the helm is Jeffrey Lin, better known as Dr. Lyte, Riot’s lead designer of social systems. As quoted in a recent article at Polygon:

We want to show other companies and other games that it is possible to tackle player behavior, and with certain systems and game design tools, we can shape players to be more positive.

Which brings us to the Honor system. Honor is a way for players to reward each other for good behavior. This is divvied up into four categories: Friendly, Helpful, Teamwork, and Honorable Opponent. At the end of a match, players can hand out points to those they deem worthy. These points are reflected on players’ profiles, but do not result in any in-game bonuses or rewards (though this may change in the future). All Honor does is show that you played nicely.

So how is this honor system working out for League of Legend players? After all, this is what it is all about. Improving the lives of gamers. Well, The Mary Sue provides a few LoL players who were willing to share their stories. For instance, there is this player's experience.

When Honor went live, there was an immediate difference in tone. I had allchat [cross-team chat] disabled in the game because I was tired of hearing incredibly sexist, racist, and homophobic comments being tossed both ways, and if I was playing with randoms, I would often mute them as well. After Honor went up, EVERYONE became nicer – I went from seeing problematic behaviour in almost every game to seeing it something like twice over the span of 20 games (and even then, it got shut down pretty quickly). I’ve turned allchat back on, and I love the dynamic both in game and after game. People compliment each other’s play-style, and on top of giving people on the other team credit for being honorable opponents, you can also give your own team points for being friendly, helpful, and being team-oriented. It’s nice to be able to give the good ones credit for what they do, and it’s also nice to be able to see such a drastic shift in mentality, even if it is sort of constructed.

While this change in some players’ experiences is great, not every negative player will change. There are some people who are fully entrenched in being jerks online. There is no curing such people. Of course, this was expected. For one of the experts, Dr. Lyte, this is not about changing negative players to positive players but about helping neutral players shift toward the positive end of the spectrum.

“The average player in the game is not toxic or positive, they’re neutral,” Lin says. Because the Honor system allows players to praise other players for their actions “we’re able to nudge them a little toward the positive.”

I am glad to see that more developers are looking at this as a way of improving player experiences in game. Other developers, such as Blizzard, are more focused on punishing and banning unsavory behavior. What that seems to do mostly is cause people to complain loudly when they are banned. Often these players will make claims that they were banned unfairly or for no reason. Whether true or not, these accusations can then make others a little more wary of taking up the game in the future.

Now, the idea of rewarding positive behavior is far from a new concept. We not so long ago highlighted an experimental program from Valve that attempted something similar. We have highlighted numerous other stories of creators who took the time to encourage positive behavior in their potential customers (you know, by convincing them to buy).

More importantly, this kind of reward system could have a far more important impact on LoL. It could be a great way to keep gamers in the game. It is this large number of players on at all hours that adds value to the game for the individual players. Because of its multiplayer nature, people would not want to play if few people were on and those that were are jerks. So by ensuring that more positive players stay on for longer, the experience will be greatly improved. This positive atmosphere and high value could also have the added benefit of convincing more players to buy in.

Posted on Techdirt - 1 November 2012 @ 03:34am

Making Sure Players Get The Best Experience Is More Important Than Worrying About How They Got The Game

Recently, Extra Credits did a great episode on game demos and why no one makes them any more. The reason came down to the fact that it was really tough to make a game demo that really allowed a game to shine — you were more likely to make a great game look terrible. In this episode, they talked about the need some people have to try out a game before they buy it and that free to play games were one way to accommodate that need. I would also add to this that piracy is another way some gamers try a game before they buy.

Just as it is important that people who play a demo get a good experience that leaves them wanting more, the same should be said of the full game itself. If your game sucks, people will stop playing it, word will spread and fewer people will buy it. This word of mouth also comes from those who pirate the game. Although they never paid the developer money, these players are still willing to speak their mind when it comes to the games that really make an impression on them. So it is still important to make a great game.

It was this last scenario, of people pirating a game and then talking about its bugs, that led one developer to take to the Pirate Bay to let those players know that a patch was coming. Jonatan Soderstrom is one of the developers behind a recently released game, Hotline Miami. After the game showed up on the Pirate Bay, people started complaining about bugs they ran into.

However, a few people had a couple of problems getting the game to run.

“Whenever I try starting the game I get [an] error,” user randir12 explained. “Error defining an external function.”

“Sometimes the game works if I click ignore, but there’s no sound.”

Instead of letting these players get help from other Pirate Bay users, Jonatan, as user cactus69, showed up himself with advice and news of a coming patch.

Hey there! I’m Jonatan Soderstrom, me and my friend Dennis Wedin made this game.

We’re working on an update that hopefully will take care of any/all bugs, and we’ll try to do some extra polish in the next few days. Would be great if you could update the torrent when the patch is out! It’d be great if people get to play it without any bugs popping up. Hope everyone will enjoy the game!

For the ‘Error defining an external function’ problem, try restarting your system and play again, it can pop up when your computer has been running for a while. We’ll try to figure out if there’s more to it than that.

While such direct contact between pirates and a game's developer is not entirely new (we have seen something like this before) it is still not the norm, and a great way to make an impression on the fans of the game. Soderstrom was able to put out a potential fire that could have led to some people to never picking the game up. In fact, this was his thought process on taking that effort. In a pair of tweets, Jonatan explained that he both understood why people might pirate, but also that it was important that they have a good experience.

I don't really want people to pirate Hotline Miami, but I understand if they do. I've been broke the last couple of months. It sucks.

And I definitely want people to experience the game the way it's meant to be experienced. No matter how they got a hold of it.

That great experience is one of the most important things any creator should work toward. It doesn't matter how much time and money you put into a game, movie, album or book. If the output does not meet the expectation of those who experience it, they will tell others. That will lead to even more people avoiding it. However, as you work toward making the best possible experience and you are completely open about faults, then people will respect you more, and often look past any flaws to support you.

Posted on Techdirt - 30 October 2012 @ 08:05pm

How Being Very Transparent May Have Saved A 'Failed' Kickstarter Project

For a while now, we have been highlighting many stories about the successful crowdfunding of movies, music, books and games. This new source of funding for creative content has been an exciting time for indie artists and those wanting to break free of traditional funding models. However, this funding model is not without its risks, something that Kickstarter has recognized with a change in the way projects are presented.

So what exactly happens when a successfully funded project fails to meet its completion goals? Well, reader Marcus Wellby sent along a story about one successfully funded game project that has hit some major roadblocks to completion. Haunts: The Manse Macabre, although successfully funded, has run out of money and programmers and was in danger of never being completed.

Haunts sought $25,000 (£15,590) from Kickstarter but the project proved popular and meant the game’s developers got $28,739 (£17,895) to fund completion of the game. Prior to the funding appeal, Haunts creator Mob Rules Games had spent about $42,500 getting the basics of the title completed.

The end result was supposed to be a haunted house horror game in which players could take on the role of the house’s inhabitants or intruders investigating what lived within it.

Now Mob Rules Games boss Rick Dakan has revealed that the game’s development has prematurely halted.

“The principal cause for our dire condition is that there are no longer any programmers working on the game,” said Mr Dakan in a blogpost updating backers.

You can see Rick’s full explanation of the problems the game has had over at Kickstarter. With all the cash and programming problems, Rick felt so bad about letting down the backers that he was willing to refund, out of his own pocket, anyone who wanted their money back. While most companies will silently kill off projects that do not meet expectations, his forthcoming post about the state of affairs actually had a positive effect on the project’s future.

The next day, Rick posted the following update.

I’ve had a lot of interested emails from programmers offering their help. Thank you all very much! There’s a lot to sift through and I’m not sure what the best way to proceed will be, but I am very encouraged by these offers and want to try and figure out the best way to take advantage of this opportunity. I’ve reached out to a good friend of mine who’s an expert in collaborative open source development, and he and I will talk soon. I also want to discuss this exciting development with Blue Mammoth and get their take on it.

By being open about the problems he was having completing the game, the community came in to offer their help. Granted, this is a unique circumstance, but having such a dedicated fan base is wonderful. Had he let the game fester with no updates for longer than he had, he might have been met with more hostility than encouragement. That would have made it far more difficult to find any kind of solution.

Finally, in the most recent update, Rick announced that after considering the situation and the best way to move forward, he will be open sourcing the game with over thirty programmers offering their help to complete it.

We’re going to finish developing Haunts: The Manse Macabre as an Open Source project. The source code has been open from the beginning, but now we’re going to fully embrace open development model and making the game entirely open source. We’ve had about thirty programmers from a variety of backgrounds, including many proficient in Go, who have stepped forward and offered to help finish the game. We’re still in the process of setting up the infrastructure for issue tracking, source control, documentation wikis, and other tools necessary before we can begin in earnest, but we hope to have that all up and running within the next week or two.

While this story is far from over, it is a great lesson in the risks of any project whether crowdfunded or not. Projects can fail, they can have problems, they can be shuttered. The key takeaways from this story, however, are (1) being transparent (rather than hiding) with supporters can do wonders and (2) being flexible and willing to change course can help. Rick notes that there’s been plenty of press coverage about the supposed “failure,” but much less about what happened after…

We’ve gotten a lot of press coverage, most of it in the general vein of, “Look, see, Kickstarter projects can go bad, so be careful!” I think that’s a fair and useful point to make. But we’re committed to being the follow-up story. You know, the underdog who comes back from the brink of collapse and proves a resounding success!

Yes, this is a story that highlights the risk in any kind of crowdfunding endeavor. Backers may be out the money they put in with nothing to show for it. However, if those who run these projects will be open and honest through the whole process, stumbles and falls included, even if the project never comes to fruition, then the potential that such a failure will damage their reputation and future projects can be mitigated. And heck, maybe you will be struck with a miracle and your project will come back to life.

Posted on Techdirt - 29 October 2012 @ 02:43pm

Exploring The Earnings Of A Humble Bundle Author

Recently, we highlighted the success of the first Humble Ebook Bundle by noting that with over 84,000 bundles sold, all those authors should be on best seller lists. That is fine and dandy on its own, but what does that mean in terms of money for the authors? With the bundle bringing in over $1 million in sales, what do the authors get out of that?

In response to that very question, one Humble author, John Scalzi, wrote up his back-of-the-envelope calculation of how much his book, Old Man's War, could earn him.

Let’s say for the sake of easy math that when all is said an done my default amount of the bundle was something like 6.5%. That would mean that my default gross cut of the Bundle would be something on the order of $78,000.

Keep in mind that this is a gross earnings. He then factors in a number of other variables, including his publisher Tor's cut, and comes to a much smaller net amount.

When all is said and done, if I end up with $20,000 (before taxes) then I figure I will have done well.

He goes on to explain what he would likely make selling the number of copies he estimates he sold during the bundle, if those copies were sold at full price.

…let’s say OMW was in 42,110 of those bundles. For electronic books, I make 25% of the net to the publisher, and Old Man’s War currently sells as an eBook at $7.99. Unless I’m doing my math incorrectly, my cut is about $1.40 per eBook for OMW (no, $1.40 is not 25% of $7.99; remember, I’m working off of net). If those 42,110 copies were sold straight up, I would gross $58,000.

So, basically, if I gross what I expect to gross from the Humble Bundle, I’ll be taking a roughly two thirds cut in my income per unit than what I usually do.

That's quite the difference. However, he is very happy with what he will make from this bundle for four reasons.

  1. The volume sold may compensate for the reduced price.
  2. Old Man's War is the first book in a series and will likely bring in new readers who will buy the sequels at full price.
  3. He went in to the bundle knowing full well that he could make as little as $0.
  4. Whatever bundles were sold because of his book were benefiting some important non-profits.

He then closes out his comments with some advice for authors considering getting involved in a bundle. All of it is great advice and I will let you delve into it yourself.

Looking at this whole thing, John makes some very important points that we have highlighted many times in the past. For instance, we have argued many times, with Paulo Coelho as a recent example, that selling in volume at a lower price has the potential to make far more money in a shorter span of time. Additionally, selling at a discount, or even giving it away, is a great way to provide publicity in order to sell other products or scarcities tangential to the product.

What is most impressive is John's understanding and attitude about this whole promotion. He knew full well that this promotion was not an end in and of itself, but a way to expand his audience and reach. By taking this risk, he will potentially see a lot more success in the future. This is an attitude that we praise on a seemingly daily basis–an attitude that too many people in the legacy industries deride and belittle. Hopefully, more creators will learn from this and embrace, as John did, the power of tools and promotions such as the Humble Bundle.

Posted on Techdirt - 29 October 2012 @ 03:23am

Being Online Has Become So Common That Some People No Longer Identify It As Being Online

One thing we know for sure is that the internet has become a growing part of everyone’s lives. People are connecting to the internet for a variety of everyday activities including watching tv and movies, listening to music, reading news and gaming. With the internet becoming so ubiquitous in people's lives, would it be a surprise to see that the number of people who identify such activities as “being online” is dropping?

That is exactly what Forrester Research has shown in its latest study on people’s media habits. In a blog post, Forrester Analyst Gina Sverdlov points out that especially among younger internet using adults, being online is a fluid concept.

One of the biggest revelations in this year’s data was the change in attitude of consumers — particularly younger ones — toward the Internet. Since we started tracking this information in 1997, we have only seen the amount of time spent online increasing. But Forrester’s 2012 data shows that US online adults are now reporting a decline in the amount of time they spend using the Internet compared with 2011 and 2010.

What’s going on? Our analysis revealed that “being online” is becoming a fluid concept. Consumers no longer consider some of the online activities they perform to be activities related to “using the Internet.” In fact, given the various types of connected devices that US consumers own, many people are connected and logged on (automatically) at all times. The Internet has become such a normal part of their lives that consumers don’t register that they are using the Internet when they’re on Facebook, for example. It’s only when they are actively doing a specific task, like search, that they consider this to be time that they’re spending online.

You can see this trend in this graphic, along with falling trends in offline activities such as watching TV and reading newspapers among adults.


As you can see, there is a drop in the amount of time people spend using the internet. However, as Forrester points out, that doesn’t actually reflect people’s true online activity. People are using more services and devices that are connected by default to the internet which doesn’t resonate as online activity for many people. When people use smart phone applications, for instance, those applications may connect to the internet, but it is not a conscious “I am connecting to the internet” activity. It is just “I am checking Facebook/listening to Pandora/Watching Netflix/etc.” With online connectivity as the default for the media choices people make, it would be expected that people would be less likely to consider that “online” behavior. As the rising generation grows up with such online-by-default choices, they will be even more likely to not consider it online activity.

What this means for those media companies that are showing a steady decline in the above graphic, and others not listed, is that if your services do not take advantage of the connected devices the current and rising generation own and use, then you might find yourself out of business. We see this happening now. Despite what some legacy industries might believe or want, that decline in offline activity is not going to reverse itself. The more the legacy industries fight that shift in consumer behavior, the faster they will find themselves irrelevant. The best thing for these industries to do is to embrace that fluid online concept and capture the attention of the rising generation.

Posted on Techdirt - 19 October 2012 @ 11:37am

Windows 8's Arbitrary App Certification Rules Could Block Skyrim And Other Huge Games

We have already mentioned that some game developers were having a hard time accepting Windows 8 as a viable gaming platform. The primary concern is with Microsoft’s insistence on walling off its Metro UI and accompanying Windows Store. When a distribution system is walled off, new restrictions come along that limit the type of content that can be made available. As application and game developers learn more about the restrictions Microsoft plans to implement, their concern is growing.

Take for instance the recent discovery that Microsoft plans to limit the games made available through its Windows Store and Metro UI. In a broader piece on what a closed Windows 8 platform means for developers, Casey Muratori highlights one of the strict and ultimately contradictory restrictions on game content. Using the 2011 Game of the Year, Skyrim, as a hypothetical Windows 8 candidate, Casey asks the question, would it be allowed on the Windows store and Metro UI.

Because no software can ship on this future platform without it going through the Windows Store, the team that built Skyrim would have to send it to Microsoft for certification. Then Microsoft would tell them if they could ship it.

Do you know what Microsoft’s answer would be?

I do. It would be “no”.

This is not speculative; it is certain. Skyrim is a game for adults. It has a PEGI rating of 18. If you read the Windows 8 app certification requirements you will find, in section 5.1:

“Your app must not contain adult content, and metadata must be appropriate for everyone. Apps with a rating over PEGI 16, ESRB MATURE, or that contain content that would warrant such a rating, are not allowed.”

And that's the end of it. No Skyrim for the Windows Store, unless of course the developers go back and remove all the PEGI 18-rated content.

Unfortunately, Casey does not highlight the contradictory nature of this arbitrary rule — what if a game has both an M rating by the ESRB and an 18 rating by PEGI, as Skyrim does. What will Microsoft do? Will it block the game entirely, region-restrict it to only ESRB regions or make an exception to its own rule and allow it for all the world? These are the kinds of questions that frustrate developers. Apple has had its fair share of arbitrary enforcement of content restrictions and you would think that Microsoft would at least attempt to learn from that example.

To further highlight the problem with this restriction, Casey lists four games that are in competition to be 2012's Game of the Year. Of those four games, none would be allowed on Windows 8 for the same reason, they got an ESRB M rating and a PEGI 18 rating. Microsoft has set itself up to exclude some of the best selling games of the future. Hardly a way to attract the support of developers.

Posted on Techdirt - 18 October 2012 @ 02:41pm

Court Rules Yellow Pages Are Protected Speech

A couple of years ago, the publishers of a number of phone books in the Seattle area sued the city for passing a new ordinance that required the publishers to pay a fee and subscribe to an opt-out program. The ordinance was implemented to allow Seattle residents to opt-out of phone book deliveries and the fee was created to pay for the program. The publishers sued stating that this fee and the other regulations that came with it violated the publishers' First Amendment rights.

While we lost track of the lawsuit over the following years, it finally made its way to the Ninth Circuit Court of Appeals in which the three judge panel ruled that the city's ordinance did indeed violate the First Amendment rights of the publishers. The ruling is very thorough in defining just why the phone book is protected by the First Amendment and thus requires strict scrutiny before any regulations can be applied.

To be sure, the Yellow Pages Companies are in the business of selling advertisements and contracted to distribute the noncommercial speech to make their advertising space more desirable due to greater directory use. But it is important to keep in mind that the First Amendment protections available to newspapers and similar media do not apply only to those institutions of the type who “have played an historic role in our democracy.” To assume that every protected newspaper, magazine, television show, or tabloid’s “noncommercial” content precedes and takes priority over the publishing parent company’s desire to sell advertising is at odds with reality and the evidence in the record.

Ultimately, we do not see a principled reason to treat telephone directories differently from newspapers, magazines, television programs, radio shows, and similar media that does not turn on an evaluation of their contents. A profit motive and the inclusion or creation of noncommercial content in order to reach a broader audience and attract more advertising is present across all of them. We conclude, therefore, that the yellow pages directories are entitled to full First Amendment protection.

The city had argued that because the phone books are commercial speech they qualified for a more lenient scrutiny when it comes to regulation. This was argued because the publishers are in the business of selling advertising space and the phone books are the medium. However, the court ruled that neither the presence of advertising nor the financial motive of the publishers disqualified the noncommercial content, such as the phone listings and maps, from strict scrutiny under the First Amendment.

The Ordinance does not satisfy this standard. While arguing that the Ordinance survives intermediate scrutiny under Central Hudson, the City advanced three governmental interests: (1) waste reduction, (2) resident privacy, and (3) cost recovery. See Seattle Ordinance 123427 (Oct. 14, 2010) (Preamble). We need not determine whether any or all of these interests are “compelling”; even if they are, the Ordinance is not the least restrictive means available to further them. One clear alternative is for the City to support the Yellow Pages Companies’ own private opt-out programs. With proper implementation, the private opt-out programs could achieve precisely the same goals as the City’s registry. Even fining the Yellow Pages Companies for a lack of compliance with their own opt-out terms would be less restrictive than compelling them to fund and advertise the City’s program.

While most people these days get annoyed with the constant receipt of the yellow paper brick, that annoyance does not qualify the books for such regulation. As the court states, the city could have performed a number of other actions that would have met the needs of its citizens while still protecting the rights of the publishers. The publishers, perhaps in anticipation of this ordinance being passed, set up a voluntary opt-out program. The city could have instead promoted that voluntary program with its residents.

Despite this ruling, the future of the Yellow Pages still looks bleak. With the majority of people in the US and many other parts of the world now connected to the internet, owning a physical book of phone numbers has become rather pointless. The internet has changed the way people search for goods and services in such a way that the phone book can never compete. Without that ability to stay competitive, this ruling will do little good for these publishers in the long run.

Posted on Techdirt - 10 October 2012 @ 02:13pm

Font Designed To Help Dyslexic Individuals Gets Legal Threat, Becomes More Open In Response

Recently, we highlighted the tremendous difficulty that visually impaired people have encountered when it comes to intellectual property. The White House had initially endorsed, then stalled, an international effort to expand fair use rights to help visually impaired individuals get greater access to written works. We also highlighted how DRM was a threat to the visually impaired. However, it is not just large interests making life difficult for this class of readers. 

Thanks to TechnoMage, we learn that New Hampshire-based mobile app designer Abelardo Gonzalez had created a font that is easier for those with dyslexia to read books and websites, but it ended up facing some legal threats from a competing font designer. First off, we have a little background on the font.

The plight of dyslexic individuals served as inspiration to Abelardo Gonzalez, a New Hampshire-based mobile app designer, who devised a clever font to help dyslexics read digital text easier.

The font, dubbed “OpenDyslexic”, employs a trick in which the bottoms of characters are weighted. Curiously some dyslexic individuals visual processing cortexes rotate images that look slender, making characters appear backwards or upside down. By making the bottom look “heavier” the font reportedly reduces this kind of visual “bug” in the brains of people with this disability.

Along with creating this font, Abelardo had released an app for iPhone and Android devices that allows those device owners to override the default font wherever it is used and replace it with this font. Other app developers had also started using it as an alternative font. Even e-reader makers Sony and Amazon have taken interest. Unfortunately, this kind of greater access is not something to celebrate if you are trying to market a more expensive font to the same demographic.

He relates that he was contacted by font designer Christian Boer (who sells an alternative font called dyslexie for $69 USD per “single-use” license) to “cease and desist” early during his process.

At the time he was charging a nominal fee and did reuse some bitstream-vera-sans characters as the basis for his font. Bitstream-vera-sans' license explicitly allows derivative fonts to be sold (free of fee to the bitstream font creators), however, Mr. Boer was claiming that the offense occurred due to the fact that Mr. Gonzalez had changed the (free) font in a similar way as he had. By all appearances the real issue was that Mr. Gonzalez was offering it for far cheaper than Mr. Boer.

In response to this threat, Abelardo released the font for free made some modifications to the font, thus allowing greater access to the public, Abelardo had already released the font for free and was not planning on backing down, which was probably the exact opposite of the reaction Boer wanted. The fact that Boer felt threatened enough by a cheaper free font shows just how weak his position is. Abelardo even admits that Boer's font is better and has become even better as a result of having more competition in the market. So why does Boer feel the need to threaten the competition? Shouldn't the fact that he can provide a better alternative be enough incentive for people to seek him out? Or perhaps, if people and companies are turning to cheaper or free alternatives, maybe it's a sign that he might be charging too much?

As someone with two dyslexic brothers, I am glad that there are people out there trying to make the world of text easier on them. Had my mother had access to a font like Abelardo's or Boer's, she probably would have had an easier time teaching them throughout school. Perhaps if the school systems that had abandoned my brothers had access to one of these fonts, they probably would have had an easier time teaching them and many others.

As we move into a more electronic world in which the ability to switch out fonts and make other changes to support the visually impaired becomes more accessible, we can provide a better solution to those who need the additional help. Unfortunately, if more people like Boer and legacy publishers get their way, such tools will be locked away behind expensive paywalls, decreasing the value and accessibility to those who truly need them.

Posted on Techdirt - 9 October 2012 @ 01:40pm

Sony Sues Actor For Trademark Infringement For Looking Too Much Like Himself In Another Commercial

Just when you thought trademark law couldn’t get any stranger, we have a new story that takes it to a whole new level. Most often, trademark law is applied to logos and names of goods and services, yet there is still some untested ground. This is where Sony comes in. Several years ago, in an effort to rebrand its floundering Playstation 3 brand, Sony created a fictional Vice President of the Playstation brand named Kevin Butler. This character and the ads he starred in became a gaming sensation and brought the Playstation 3 back into the limelight. Here is a sample of these advertisements.


Such success never lasts, and earlier this year, the contract Sony had with Kevin Butler actor, Jerry Lambert, expired and he has moved on to other contracts. One of these new advertisement contracts is with Bridgestone Tires. Unfortunately, Lambert has starred in one ad that now has Sony up in arms. This ad features Jerry Lambert starring as an unnamed Bridgestone engineer along side two other actors portrayed playing a Nintendo Wii. This ad has resulted in Sony going over the edge, so to speak. The entertainment and electronic giant is now suing Bridgestone and Wildcat Creek, the corporation set up to manage Lambert’s advertising career, for a variety of reasons, one of which is trademark infringement. You can view the original Bridgestone commercial at GoNintendo.

Sony Computer Entertainment America filed a law suit against Bridgestone and Wildcat Creek, Inc. on September 11. The claims are based on violations of the Lanham Act, misappropriation, breach of contract and tortious interference with a contractual relationship. We invested significant resources in bringing the Kevin Butler character to life and he’s become an iconic personality directly associated with PlayStation products over the years. Use of the Kevin Butler character to sell products other than those from PlayStation misappropriates Sony’s intellectual property, creates confusion in the market and causes damage to Sony.

This statement is a tad confusing on first blush. It reads as if Sony is claiming trademark on the Kevin Butler likeness rather than the character itself. As such, it would seem that Sony is making the claim that Lambert starring in any commercial could cause likely confusion among consumers, resulting in them thinking that Kevin Butler is endorsing another product. This is rather absurd though. Primarily because the character Labert portrays has no name and actors portray many different characters throughout their careers.

Thankfully, the Hollywood Reporter has provided some further clarifications on the matter. Here we learn a bit more about the exclusivity clause in Lambert’s contract.

According to a complaint filed in California federal court, the contract between Sony and Wild Creek was entered into on August 7, 2009 and contained an “exclusivity clause” that prevented Lambert from providing his services or his likeness to competing gaming system manufacturers like Nintendo.

This part at least makes some sense. A lot of contracts will contain language that prevents an employee or other contracted company or individual from working for a direct competitor for a specified time. However, to claim that the commercial with Bridgestone, a tire company, meets this definition is a stretch, even if the commercial features a Nintendo Wii. Sony then claims that Lambert’s work with Bridgestone is a breach of contract, unfair competition and tortuous interference. These are quite harsh accusations and Sony will have its work cut out for it.

Next is the claim of trademark infringement.

According to the lawsuit, “With the intent of unfairly capitalizing on the consumer goodwill generated by ‘Kevin Butler,’ Bridgestone has used and is using the same or confusingly similar character, played by the same actor, to advertise its products or services in the commercial.”

Having seen both a Kevin Butler commercial and the Bridgestone ad featuring Lambert, I find it hard to see the similarities beyond the superficial. The Kevin Butler character plays as an overly-serious and often hyperbolic character to its comedic levels. The Bridgestone ad features an excitable and fast talking character. Aside from that, Kevin Butler was built to be a VP while the Bridgestone guy is merely an engineer in an R&D department.

These differences are not going unnoticed by Bridgestone either. It has made the claim that not only are the characters different, but Sony has no actual claim on the Kevin Butler character at all.

“Mr. Lambert is one of the actors who appeared in the commercial as a Bridgestone engineer,” say the defendant. “Bridgestone denies that ‘Kevin Butler’ appears in the Bridgestone commercial discussed herein and thus denies that he speaks or does anything whatsoever in the commercial.”

Bridgestone indicates that it intends to fight the lawsuit by showing that Sony has failed to register any mark on “Kevin Butler,” that the character has not acquired secondary meaning and that there is no likelihood of confusion among consumers.

This is certainly not the first time something like this has happened. Many years ago, Wendy’s had a very successful advertising campaign starring Clara Peller as a little old lady asking a generic fast food chain the famous question, “Where’s the beef?” She lost her job with Wendy’s after she starred in a Prego commercial uttering the phrase: “I found it. I really found it.”

What these accounts show is that the ownership mentality of many corporations goes beyond logos and phrases, to specific actions, characters and the actors behind them. This is certainly a dangerous line of thought for anyone to take up. While Sony most likely has a vested interest in the Kevin Butler character, claiming that its interest in the character extends as far as the actor himself is certainly going to make Lambert’s career more difficult potentially to the point of halting it. If he cannot star in any commercial for fear of looking and acting too much like himself, then what point is there in continuing in an acting career?

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