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Posted on Techdirt - 22 October 2021 @ 03:45pm

Donald Trump Asserts Fair Use, 'Absolute Immunity' In Lame Attempt To Evade Copyright Suit By Eddy Grant

Eddy Grant, responsible for the banger Electric Avenue, has made it onto our pages a couple of times in the past, most recently over a copyright spat with Donald Trump. At issue in the lawsuit was the Trump campaign sending around a video of a “Trump/Pence” train zipping by, with a Biden hand-car chugging behind it. While there were lots of references to Biden sniffing people’s hair (seriously, what is that?) and other silly jabs, the real problem is that the entire video has Electric Avenue playing as its soundtrack. Eddy Grant didn’t like this, of course, and sued over it. Trump tried to get the suit tossed on fair use grounds, arguing that the use of the song was transformative… but that isn’t how it works. Simply using the song in a way the author didn’t intend doesn’t make the use transformative. Were that the case, every commercial advertisement out there would feature copyrighted songs as backgrounds to selling all manner of things. Again, not how it works and the court refused to toss the suit in response to Trump’s Motion to Dismiss.

And so now this whole case moves forward and Trump is once again asserting fair use in his answer to the complaint… but with a twist! More on the twist in a moment, but first the fair use argument.

Former President Trump denied Eddy Grant’s copyright infringement claims in a formal response submitted to the court late Monday night.

“Defendants deny that they have willfully and wrongfully infringed Plaintiffs’ copyrights,” the response said. “Plaintiffs’ claims against Defendants are barred, either in whole or in part, by the doctrines of fair use and/or nominative use.”

So pretty much the same fair use argument that was made in Trump’s initial motion to dismiss (embeded below). This argument almost certainly won’t work. And, while I don’t find myself arguing against fair use very often, this one doesn’t make a whole lot of sense. The video used a significant portion of the song and the song was used in nearly the entire video in question. And, while Trump asserted the video was parody, it’s not parody of Electric Avenue. That’s the point of the parody defense: the use of a work in order to satirize it. That isn’t what’s happening here. The target of the satire is Joe Biden, not Eddy Grant or his song.

It seems like Trump’s legal team might realize that argument is a loser as well, given that the added twist I mentioned earlier.

The former president also asserted Grant cannot sue him because of what Trump’s attorneys called “Presidential absolute immunity.”

So, here’s the thing: someone really needs to get Donald Trump in a room, sit him down, and explain to him that he cannot simply shout “presidential immunity!” every time something in his life doesn’t go the way he wants to make it magically go away. This immunity claim is something he’s using with wild abandon, including in far more serious realms like in denying requested documents for the January 6th committee.

But this is far more absurd. It wasn’t Donald Trump, the President, that put out this video. Rather, it was the Donald Trump campaign that did so and that campaign very much does not qualify for presidential immunity, “absolute” or otherwise. Immunity for presidents from prosecution or suit typically ends when that person is no longer president and, last time I checked, the subject of the mockery in the video is president now, not Donald Trump.

“Given the court’s recent favorable determination, there are very few issues that remain to be resolved. We are confident that our clients’ rights will ultimately be fully upheld and look forward to Mr. Trump fully explaining his actions,” Grant’s attorney, Brian Caplan, said in a statement provided to ABC News.

That’s the sound of a lawyer quite confident in his case. And it’s frankly quite hard to argue with him.

Posted on Techdirt - 21 October 2021 @ 07:57pm

Le Tigre Sues Barry Mann To Stop Copyright Threats Over Song, Lights Barry Mann On Fire As Well

It takes a special kind of hubris to appropriate music and lyrics not just from another artist, but another cultural genre of artists, and then threaten someone else for “stealing” what you’ve “stolen”. Meet Barry Mann. If that name doesn’t sound terribly familiar to you, fear not, as he is known for the 1961 hit song Who Put The Bomp? and other songs from decades ago. And if that song title doesn’t sound familiar, you’ve almost certainly heard the song. To jog your memory, it includes such made up words as “ramalama ding dong”. See, those are called vocables: made up syllables used to effectuate rhythmic form rather than meaning. You can listen to the song below to get an idea of what I’m talking about.

“The Mann”, which is what I’ll be calling him from here on out, is still kicking at 82 and apparently is learning a new hobby: threatening other artists with copyright claims. He and/or his legal representatives apparently sent a cease and desist notice to Le Tigre, a feminist punk band, over a song called Decepticon. See, Decepticon takes a couple of lyrics found in The Mann’s song and repurposes them to become a feminist anthem. For that and one additional reason that we’ll get into later, Le Tigre filed suit for declaratory relief of The Mann’s copyright infringement claim. Here is Decepticon so you can go hear for yourself just how copyright-infringe-y this all isn’t.

Between the suit and the song itself, you should notice a number of things. First off, you may be thinking to yourself that this song sounds decidedly retro for punk music. That’s because the song came out twenty years ago and has long been Le Tigre’s most famous song. Why a lawsuit is only being filed now is an open question. In addition, the use of the lyrics is minimal and the song itself is nothing remotely like The Mann’s song.

Additionally, even if Defendants had a legitimate claim to ownership of the small portion of Bomp lyrics at issue, they nonetheless have no copyright infringement claim against Le Tigre or its licensees because Le Tigre’s transformative use of those lyrics in Deceptacon is an emblematic case of fair use under Section 107 of the Copyright Act, 17 U.S.C. § 107.

Transformative use? Let’s get into that. You may also have noticed that the lyrics are actually slightly different. For instance, the lyric to start the song is no longer “who put the bomp”, it’s “who took the bomp”.

Deceptacon’s reference to and inversion of the Bomp lyrics at issue delivers a stinging indictment and parody of Bomp, which is clear from a comparison of the songs’ lyrics and sharply contrasting musical styles, as critics have noted over the decades. Bomp, written from a man’s perspective, begins with the statement: “I’d like to thank the guy who wrote the song that made my baby fall in love with me.” Bomp’s singer asks, “Who put the bomp in the bomp bah bomp bah bomp?” and “Who put the ram in the rama lama ding dong?” Deceptacon, by contrast, is a feminist anthem that begins with the proposition that music “is sucking my heart out of my mind” and continues to ask, “Who took the bomp from the bomp-a-lomp-a-lomp?” and “Who took the ram from the rama-lama-ding-dong?” Thus, Le Tigre’s use of the lyrics that appear in Bomp instills those lyrics with a new meaning that is directly at odds with and a clear criticism of the message in Bomp, which is precisely the sort of fair use that Section 107 of the Copyright Act is designed to protect.

But parody and criticism of what? Well, there certainly is the feminist angle to it, yes, and Le Tigre is well known for creating that sort of stinging lyrics within its songs. But not just the feminist critique. Remember the change from “put” to “took”? Well…

The Bomp lyrics putatively at issue are mainly comprised of song titles and non-lexical vocables (nonsense syllables used in music). But Mr. Mann did not create these vocables or song titles; rather, it appears that Mr. Mann and his cowriter copied them from Black doo-wop groups active during the late 1950s and early 1960s. Specifically, it appears that Mr. Mann took “bomp-bah-bomp-bah-bomp” from The Marcels’ distinctive version of “Blue Moon,” which sold over a million copies, and “rama lama ding dong” from the Edsels’ then-popular “Rama Lama Ding Dong.” In short, the Bomp lyrics at issue are not original to Mr. Mann, and Defendants have no legitimate copyright claim in them.

And that is how this all comes full circle, in a way. The Mann threatened a punk feminist group over a song it created with lyrics designed to specifically criticize how he appropriated those lyrics from black doo-wop groups in the 60s. Like I said, that takes a nearly impressive amount of hubris.

As far as copyright cases go, this should be an easy one for the courts.

Posted on Techdirt - 20 October 2021 @ 07:51pm

Facebook AI Moderation Continues To Suck Because Moderation At Scale Is Impossible

For several years now, we’ve been beating the idea that content moderation at scale is impossible to get right, otherwise known as Masnick’s Impossibility Theorem. The idea there is not that platforms shouldn’t do any form of moderation, or that they shouldn’t continue to try to improve the method for moderation. Instead, this is all about expectations setting, partially for a public that simply wants better content to show up on their various devices, but even more so for political leaders that often see a problem happening on the internet and assume that the answer is simply “moar tech!”.

Being an internet behemoth, Facebook catches a lot of heat for when its moderation practices suck. Several years ago, Mark Zuckerberg announced that Facebook had developed an AI-driven moderation program, alongside the claim that this program would capture “the vast majority” of objectionable content. Anyone who has spent 10 minutes on Facebook in the years since realizes how badly Facebook failed towards that goal. And, as it turns out, failed in both directions.

By that I mean that, while much of our own commentary on all this has focused on how often Facebook’s moderation ends up blocking non-offending content, a recent Ars Technica post on just how much hate speech makes its way onto the platform has some specific notes about how some of the most objectionable content is misclassified by the AI moderation platform.

Facebook’s internal documents reveal just how far its AI moderation tools are from identifying what human moderators were easily catching. Cockfights, for example, were mistakenly flagged by the AI as a car crash. “These are clearly cockfighting videos,” the report said. In another instance, videos livestreamed by perpetrators of mass shootings were labeled by AI tools as paintball games or a trip through a carwash.

It’s not entirely clear to me just why the AI system is seeing mass shootings and animals fighting and thinking its paintball or carwashes, though I unfortunately have some guesses and they aren’t fun to think about. Either way, this… you know… sucks! If the AI you’re relying on to filter out extreme and violent content labels a mass shooting as a trip through the carwash, well, that really should send us back to the drawing board, shouldn’t it?

It’s worse in other countries, as the Ars post notes. There are countries where Facebook has no database of racial slurs in native languages, meaning it cannot even begin blocking such content on the site, via AI or otherwise. Polled Facebook users routinely identify hate on the platform as its chief problem, but the company seems to be erring in the opposite direction.

Still, Facebook’s leadership has been more concerned with taking down too many posts, company insiders told WSJ. As a result, they said, engineers are now more likely to train models that avoid false positives, letting more hate speech slip through undetected.

Which may actually be the right thing to do. I’m not prepared to adjudicate that point in this post. But what we can say definitively is that Facebook has an expectations setting problem on its hands. For years it has touted its AI and human moderators as the solution to the most vile content on its platform… and it doesn’t work. Not at scale at least. And outside of America and a handful of other Western nations, barely at all.

It might be time for the company to just say so and tell the public and its representatives that this is going to take a long, long while before the company gets this anywhere close to right.

Posted on Techdirt - 19 October 2021 @ 08:38pm

MLB In Talks To Offer Streaming For All Teams' Home Games In-Market Even Without A Cable Subscription

Streaming options for professional and major college sports has long been a fascination of mine. That is in part because I’m both a fairly big fan of major sports and a fan of streaming over the wire instead of having cable television. My family cut the cord a couple of years back and hasn’t looked back since, almost entirely satisfied with our decision. The one area of concern here continues to be being able to stream our local sports teams, as most of the pro sports leagues still have stupid local blackout rules. MLB.TV, the league’s fantastic streaming service, has these rules too. While using a DNS proxy is trivially easy, easier would be the league coming to terms with modernity and ending the blackout rules. Notably, MLB did this in 2015 when it came specifically to Fox Sports broadcasts for 15 teams, but as I noted at the time:

But don’t think for a single moment that that’s where it ends. Even if MLB can’t get similar deals in place for the other half of teams in the league, which would fully free up the fantastic MLB.TV product for local streaming, any modicum of success that Fox has with this program will be immediately adopted by the other broadcasters. They really don’t have a choice. Cord-cutting isn’t going away and it’s been professional and college sports that have long kept subscribers tethered.

It took longer than I expected, but it’s finally happening. Reports indicate that MLB is currently planning to rollout an all-league streaming option that would end local blackout rules entirely, even for cord-cutters. And, in case you thought this was going to be an MLB-only thing, its bringing the other major leagues along for the ride.

The web-based service — which could address a decades-old annoyance for baseball fans that some have partly blamed for the league’s steadily declining viewership — could launch as early as the 2023 season, a person with direct knowledge of the negotiations said.

The National Basketball Association and the National Hockey League are also considering partnering with MLB on the new streaming service, sources said. Insiders say subscription rates would vary by geographic market and could be between $10 and $20 a month — well below the monthly cost of most cable-TV packages, which can easily stretch past $100.

As you might imagine, the cable companies are not thrilled with this. After all, while cord-cutting has been a steady force in the American media landscape, the dam has yet to burst and that is almost certainly due to the appetite for live sports broadcasts that still sit behind complicated cable television deals these leagues have with broadcast partners. So how is this going to work?

Well, MLB is doing what I suggested almost a decade ago: making the streaming broadcast identical to the television broadcast and giving broadcast partners some of the revenue, while also giving the broadcast commercial advertisements the additional reach of the stream.

Sources said MLB Commissioner Rob Manfred could end up offering cable-TV giants a piece of the streaming revenue to compensate for potential subscriber losses. Manfred’s pitch is that cable TV won’t lose many subscribers, as MLB is mainly targeting younger customers who have already cut the cord, sources said. The cable companies don’t have streaming rights but could retaliate by paying less to broadcast games if they don’t like the bargain, sources said.

As for the teams, MLB’s streaming service would pay them based on viewership in their local markets. One MLB owner said the league has kept its owners appraised, and believes it has general support though no vote has been taken. Indeed, the MLB and team owners are concerned over dire forecasts for viewership. Roughly half of Americans will not be watching cable or satellite TV within a few years, according to Pew Research Center annual surveys.

There is no firm deal yet, as MLB is currently working with broadcast partners and its teams to finalize the plan. Sinclair Broadcasting is a major piece of gum in the works, because of course it is. Sinclair has the broadcast rights for nearly half the league’s teams and is putting up a stink, though MLB’s strategy appears to be repeatedly pointing out that Sinclair may be in such dire financial trouble such that it can’t be trusted to continue operating far into the future.

At first, sources said Sinclair tried to persuade MLB to allow it to control the service for several years before handing the reins to MLB. But the league wasn’t having it, citing Sinclair’s financial condition and raising concerns that the company won’t be able to spend the money that’s needed for high-quality broadcasts, sources said.

In 2019, Sinclair’s Diamond Sports subsidiary paid $9.6 billion for the Fox Regional Sports Networks, since rebranded to Bally’s, giving it exclusive rights to the 14 MLB teams, 16 NBA teams, and 12 NHL teams. It borrowed a staggering $8 billion to fund the deal, sources said. Since then, Dish, Hulu and YouTube TV have stopped carrying the Bally’s RSNs, even as revenue from existing distribution deals has been slammed by cord cutting and subscriber declines. An August Moody’s Investors Service report found that Sinclair “now has an unsustainable capital structure given its very high leverage and weak liquidity.”

Don’t threaten me with a good time, Sinclair.

Regardless, everything about these plans represents a massive step in the right direction. Sports leagues will be eyeing how this goes with great interest. When it goes well, as it almost certainly will, this could be the start of a massive change in how sporting events are consumed by the public.

And the end of cable television as we know it.

Posted on Techdirt - 15 October 2021 @ 07:39pm

Trader Joe's Threatens Man Over Parody 'Traitor Joe' Political T-Shirt

The last time we found niche grocery chain Trader Joe’s playing intellectual property bully, it was over one enterprising Canadian man who drove across the border, bought a bunch of good stuff from Trader Joe’s, and then resold it at his Canadian store called “Pirate Joe’s”. While that whole setup is entertaining, Trader Joe’s sued for trademark infringement in the United States, which made zero sense. The store was in Canada, not the States, reselling purchased items is not trademark infringement, and Trader Joe’s was free to open up Canadian stores if it chose.

Fast forward to the present and Trader Joe’s is trying to stretch trademark law yet again, this time to go after one man’s website that is selling parody t-shirts with a picture of Joe Biden and the moniker “Traitor Joe”, all mocked up to look like the store logo. Trader Joe’s sent a threat letter to the man, Dan McCall, who was represented by friend of the site Paul Alan Levy.

I recently had the pleasure of representing Dan McCall again — author of such wicked parodies as NSA – the Only Part of Government That Actually Listens (we got to sue the NSA for a declaratory judgment of noninfringement); Ready for Oligarchy (over which we came with hours of filing suit against Hillary Clinton’s exploratory committee); and Bernie Is My Comrade (Sanders’ committee had the smarts to retract quickly). Last week, I sent a response to a demand letter sent on behalf of Trader Joe’s from a BigLaw attorney lawyer who, considering his claim to be a “seasoned intellectual property litigator,” really should have known better than to subject his client to the Streisand Effect.

You can see the image in question below.

I’ve included Levy’s response embedded below so that you can read it in full. Now, if McCall sounds at all familiar to you, it’s because he’s made a habit out of annoying large institutions by creating parody logos of their branding. Hillary Clinton, Bernie Sanders, the NSA, and DHS have all come calling for him at some point. This is part of the context of Levy’s note that competent counsel really should know better than to send this threat letter: McCall and Levy have been through this before and they’ll get through it again.

As to the merits of supposed trademark infringement, well, the response letter does a fairly thorough takedown of any such arguments. Levy starts off by pointing out to Trader Joe’s that literally nobody is going to think it endorsed or produced this t-shirt. In fact, the company’s own threat letter notes how this puts the company in a bad light, so why would it also think the public would think the shirt came from Trader Joe’s?

But the real trump card in all of this is that the t-shirt is protected speech as parody.

Trademark law aside, McCall’s use of the image to comment on the President of the United States, while playing on the name of a leading grocery store chain, is speech squarely protected by the First Amendment. Consequently, any application of trademark law to quash such uses would be highly suspect. Although McCall’s products are sold, their contents are noncommercial speech, which qualifies for full First Amendment protection.

There’s a bit more in there, including an odd copyright claim over some of the imagery and the fact that Trader Joe’s invoked the DMCA against McCall even though his company, Liberty Maniacs, is not an interactive website allowing user input, but that’s more icing on the cake type stuff. What is made clear in all of this is that Trader Joe’s has a legal team that is making quite spurious threats that would be highly likely to be defeated in court.

Posted on Techdirt - 14 October 2021 @ 08:37pm

Billy Mitchell Survives Anti-SLAPP Motion From Twin Galaxies A Second Time

The Billy Mitchell and Twin Galaxies saga rolls on, it seems. Mitchell has made it onto our pages several times in the past, most recently over a lawsuit filed against gaming record keepers Twin Galaxies over its decision to un-award his high score record for Donkey Kong on allegations he achieved it on an emulator instead of an official cabinet. The suit is for defamation and Twin Galaxies initially tried to get the case tossed on anti-SLAPP grounds, but the court denied that request under the notion that Mitchell only has to show “minimal merit” in the overall case to defeat the anti-SLAPP motion.

And now, on appeal, California’s Second Appellate court has affirmed that ruling, again on “minimal merit” grounds. You can read the entire ruling embedded below, though I warn you that there are many pages dedicated to the back and forth between Mitchell and Twin Galaxies over a video game record, so you may come away with sore eyebrows from rolling your eyes so hard at all of this. There is also a metric ton of context as to how the court is supposed to apply the anti-SLAPP statute. Go nerd out if you like, but the whole ruling boils down to this:

The parties agree, as do we, that Mitchell’s claims for defamation and false light arise from protected activity and meet the first prong of the anti-SLAPP analysis. We therefore focus on the second prong: whether Mitchell has shown a probability of prevailing on his claims. Twin Galaxies contends Mitchell has not provided sufficient evidence to show the challenged statement was false or it made the statement with actual malice. We are compelled by the standard of review, however, to conclude Mitchell has demonstrated the requisite “minimal merit” to his claims to defeat Twin Galaxies’ anti-SLAPP motion.

It’s incredibly important in a case like this to keep that standard in mind. And, though some folks, including some at Techdirt, don’t necessarily agree with me, I think I agree with the court’s ruling on this. Given the minimal merit standard, it seems the court is simply reluctant to not let this proceed to trial.

And, as I stated in the last post, to discovery. And it’s going to be in discovery where all of this gets far more interesting. Because at trial, there will be no minimal merit standard for the claim of defamation. Instead, Mitchell is going to have to prove two things: that the accusation of cheating is false and that Twin Galaxies made that claim not out of error, but out of “actual malice”.

And that is going to be an extremely tall hurdle over which Mitchell needs to jump.

Posted on Techdirt - 13 October 2021 @ 07:59pm

Public Backlash Leads Tulsa Park To Stop Bullying Coffee Shop Over Trademark

A good public outcry and backlash can lead to many, many good things. We see it here at Techdirt all the time, particularly when it comes to aggressive bullying episodes over intellectual property. Some person or company will try to play IP bully against some victim, the public gets wind of it and throws a fit, and suddenly the necessity over the IP action goes away. Retailers, manufacturers, breweries: public outcry is a great way to end ridiculous legal actions.

A recent example of this comes out of Tulsa, OK, where a riverside park of all places decided it had to sue a coffee shop over a similar, if fairly generic, name. Gathering Place is a park in Tulsa, a… place… where people… you know… gather. The Gathering Place is a coffee shop in Shawnee, 90 miles from Tulsa, where people get coffee and, I imagine, occasionally gather. But despite any gathering similarities, coffee shops are not parks and 90 miles is a fairly long way away. Which makes a lawsuit over trademark infringement brought by the park very, very strange.

The lawsuit alleged the coffee shop “intentionally mimicked” the name of the park to unjustly benefit from its fame.

“This couldn’t be further from the truth,” the coffee shop owners countered in a Facebook post. “It is hard to think that someone would actually be confused between a world renowned outdoor play space and a small local coffee shop located an hour and a half apart.”

It appears the public very much agrees with the coffee shop owners, as many went online to register their displeasure over the lawsuit. Several thousand people also signed an online petition backing The Gathering Place.

Hundreds lashed out at the park on Facebook after the lawsuit was filed, with some vowing never to go there again.

“Shouldn’t be suing PEOPLE. Especially mom and pop businesses. SHAME SHAME SHAME!” one critic commented on the park’s Facebook page.

The result was fairly swift. Suddenly, both sides came together and entered one of those annoying settlements I complain about so much, where nobody gets to learn any details of the terms. What has been made public is that The Gathering Place has gotten a license from the park, Gathering Place, to continue to use its name. As the source post notes, often times these licensing arrangements come with some sort of money changing hands, but what that amount might be is anyone’s guess. Given the size of The Gathering Place, you have to imagine it is fairly minimal.

Instead, the park probably witnessed the backlash and decided a quick exit is what was needed. Both to limit the legal costs of litigation as well as the cost to the reputation of the park due to the backlash by the public. Either way, I very much doubt this settlement would have been reached so quickly without the public outcry.

Posted on Techdirt - 12 October 2021 @ 07:44pm

Twitch, Others, Ban Amouranth Yet Again, Once Again With Zero Transparency

Regular readers here will by now likely be familiar with Twitch streamer “Amouranth”. She has made it onto our pages as part of the year-long mess that Amazon’s Twitch platform appears to be making for itself, during which it has demonstrated its willingness to both treat its creative community quite poorly and fail to properly communicate that poor treatment to much of anyone at all. For instance, Twitch has temporarily banned or kept Amouranth from live-streaming several times, all likely due to the content of her streams. That content seems nearly perfectly designed to poke the line on Twitch’s streaming guidelines, including so-called “hot tub streaming” and ASMR streams. Twitch has never been great about explaining the reasons for bans like these, but in the past it has at least linked to the offending content so that a streamer knows which videos were objectionable. But with some, including Amouranth, Twitch often times doesn’t even bother doing that, such as when it demonetized Amouranth’s videos without warning or explanation.

So, while Twitch, quite frankly, now has far, far bigger issues on its hands, it’s worth pointing out that Twitch has yet again banned Amouranth without warning or explanation. Though, it appears this time Twitch has some friends tagging along in Instagram and TikTok.

Popular streamer Kaitlyn ‘Amouranth’ Siragusa has had Twitch channel, TikTok, and Instagram pages banned within quick succession, but what actually happened and what is she doing next? On October 8, Amouranth received her fifth ban from Twitch but it seemed to come pretty out of the blue. While there is usually a clip to point to that mostly explains the suspension, that hasn’t been the case this time around and the exact reason is up for speculation.

And not just speculation by the public. It appears that at the time the ban-hammer was brought down on her, Amouranth had absolutely no idea why she’d been banned across multiple platforms. Perhaps she’s playing coy, but publicly she actually asked others to let her know if they found out the reason for all of this.

Why Twitch can’t seem to get communication and basic public relations right is an ongoing mystery. But whatever that reason is, it seems like they just can’t. The wrinkle here would normally be that Instagram and TikTok have followed along the same path… except that Twitch actually reinstated Amouranth a few days later. She remains banned on the other platforms, though, making this all remarkably strange. Ban, unban, ban, unban, and all without proper communication to a member of Twitch’s creative community.

Now, Amouranth will be fine. She makes most of her money from OnlyFans, after all. But that really isn’t the point. How much harm Twitch is doing to creators by not bothering to communicate with them isn’t as important as why any of this harm is occurring at all.

If that keeps up, she may never have to make a return to streaming. Though, YouTube could be an option seeing as Indiefoxx – who was in a similar situation to Amouranth with being banned – has recently made the switch herself.

She’s also talked about starting a venture capital fund that focuses on the “grey market space” of things that are not entirely brand-friendly. Though, who knows if that’ll happen anytime soon.

And, while Amouranth is a very visible creative whom this is happening to, there are plenty of others. And at some point, those people are not going to put up with this concept of a platform being managed by whim any longer.

Posted on Techdirt - 7 October 2021 @ 08:04pm

Seuss Estate And ComicMix Copyright Case Settles In The Saddest Possible Way

Readers here will know that we’ve followed the trademark and copyright lawsuit filed by the estate of Dr. Seuss against ComicMix LLC, creators of the mashup book Oh, the Places You’ll Boldly Go! The entire thing has been a multi-year rollercoaster designed to be serpentine, with ComicMix arguing that the mashup book was transformative and covered by fair use, and winning on that front, only to have the copyright portion of the argument overturned on appeal. Go and read Cathy Gellis’ writeup on the appeal; it’s incredibly detailed and informative.

But if anyone was hoping to see this case progress up the federal court ranks, they will be both disappointed and sad. Disappointed because the parties have now settled the case with ComicMix agreeing to acknowledge that the book did, in fact, infringe on Suess’ copyrights.

Dr. Seuss Enterprises LP and the makers of the Dr. Seuss/”Star Trek” mashup book “Oh, the Places You’ll Boldly Go!” have settled Seuss’ copyright infringement claims, according to a Tuesday filing in San Diego federal court.

In an agreement filed with the court, the parties agreed that the book infringes Seuss’ copyrights and permanently bars ComicMix LLC, former “Star Trek” writer David Gerrold, illustrator Ty Templeton and others from selling it, while Seuss agreed to drop any claims for damages or attorneys’ fees.

The court document is embedded below so you can see it for yourself. This is normally where I would rant and rave about how these settlements, which might make sense for one or both sides of a given conflict, are actually very bad for the larger public as they do not properly resolve the open questions contained in the dispute. In this case, the full weight of the court and legal system has not had its say on whether the mashup book infringed Suess’ copyrights. Two courts have disagreed and this could have progressed further, potentially up to the Supreme Court, but the settlement puts a stop to that process.

That said, it’s difficult to be to rant-y and rave-y about this particular settlement given the reason it was sought out. Remember that part I said above about this being sad? Well…

The defendants’ attorney Dan Booth of Dan Booth Law said in a statement that his clients settled because of Templeton’s diagnosis of Stage 3 colorectal cancer earlier this year.

“After five years of litigation and with the pre-trial deadlines looming, as Ty’s collaborators and friends, we refuse to put him through any additional stress that would in any way impinge on his health and recovery. To the credit of the people at Dr. Seuss Enterprises, they didn’t want to put Ty through that either,” Booth said. “So we joined in a motion to end the suit the day before Ty’s surgery, in order to alleviate the less serious pain in his butt.”

Two things I absolutely have to mention. First, I appreciate the hell out of Booth including a butt joke in a statement about his friend having colorectal cancer. I imagine that he knows Ty would be okay with such a joke, in which case this is just plain good comedy. Second, and more important, the proper framing of this news story should be that the Dr. Seuss Estate extracted a settlement over a copyright dispute for a book that very much did the estate no harm because it was bullying a cancer patient. Somehow, one imagines Suess himself not being in love with this idea, but that is pure speculation.

What isn’t speculation is that, as Cathy made the point in the earlier post, this represents a culture loss. Mashup art is not rare and has become, to some discernable level, a part of our culture. This settlement manages to add another bit of ammunition from protectionists who want to control and license every last thing related to their works, whether fair use ought to apply or not.

I understand why this settlement was reached… but it both sucks and is sad.

Posted on Techdirt - 6 October 2021 @ 07:42pm

Perfect Timing: Twitch Gets Compromised With Voluminous Leak Of Data Via Torrent

It’s no secret that Amazon-owned Twitch has had a rough go of it for the past year or so. We’ve talked about most, if not all, of the issues the platform has created for itself: a DMCA apocalypse, a creative community angry about not being informed over copyright issues, unclear creator guidelines for content that result in punishment from Twitch while some creators happily test the fences on those guidelines, and further and ongoing communication breakdowns with creators. All of that, mind you, has taken place over the last 12 months. It’s been bad. Really bad!

But great news: now it’s even worse! Someone managed to get into the Twitch platform and leak it. As in pretty much all of it. And even some information on a Steam-rival Amazon is planning to release. Seriously.

An anonymous hacker claims to have leaked the entirety of Twitch, including its source code and user payout information.

The user posted a 125GB torrent link to 4chan on Wednesday, stating that the leak was intended to “foster more disruption and competition in the online video streaming space” because “their community is a disgusting toxic cesspool”.

The leaked Twitch data reportedly includes:

-The entirety of Twitch’s source code with comment history “going back to its early beginnings”

-Creator payout reports from 2019

-Mobile, desktop and console Twitch clients

-Proprietary SDKs and internal AWS services used by Twitch

-“Every other property that Twitch owns” including IGDB and CurseForge

-An unreleased Steam competitor, codenamed Vapor, from Amazon Game Studios

-Twitch internal ‘red teaming’ tools (designed to improve security by having staff pretend to be hackers)

As you can see, yeah, pretty much everything. And keep in mind that whoever leaked this via torrent has noted that this is “part 1”. Now, while a great deal of attention is being paid to Vapor, an unreleased platform created by Amazon to compete with Steam, let’s focus instead on the release of the financial compensation for Twitch creators. Because this represents yet another failure by Twitch to protect its own creative community.

How detailed are these financial records. Extremely, as it turns out, with names and dollar amounts attached so that enterprising individuals are able to rank them. For instance, my own beloved Critical Role appears to be the top Twitch earner since 2019.

Now, I love Critical Role and am quite pleased that they’re doing so well for themselves. But I’m pretty sure they also aren’t loving their exact compensation through Twitch being out there for the entire world to see. I need to avoid getting into a victim-blaming issue here, since Twitch is very much a victim of this hack/compromise/leak… but we also don’t have details from Amazon as to how this leak occurred, only that it is authentic. The next question is obvious: did Twitch do something stupid that left itself vulnerable to this sort of thing?

We don’t know. But this is the problem when a platform torches its reputation among its own creative like Twitch has over the last year or so. There’s no goodwill in the bank for Twitch to rely on as it navigates through the fallout of all this. And, while it’s worth noting that the person posting this leak claims they did so out of anger with how Twitch operates and its “toxic cesspool” of a community, the public and media framing of this leak has shown little sympathy for the platform overall.

This all comes at a time of much tribulation for Twitch, with the #DoBetterTwitch/#TwitchDoBetter hashtags at the forefront of efforts by users to demand a better service from the platform, including boycotts to demand action over hate raids. Twitch seems to be making some positive moves, but then always finds a way to do something terrible too.

If Twitch wants to start repairing this reputation, it should be in full “good PR” mode: admit what happened, be transparent, do not talk about other great things you’ve done, build a plan to repair this. Sadly, given Twitch’s history, it’s an open question whether it will do the right thing or not.

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