Spielberg's Production Company Inks Multi-Film Deal With Netflix, I Guess To Win A Bunch Of Emmys Instead Of Oscars

from the about-face dept

Way back in the ancient history of 2019, famed director Steven Spielberg became something of the front man for the aging Hollywood crowd that sees streaming services as somehow deficient when he announced plans to push the Academy to disallow Oscar nominations for films that appeared first on streaming services, arguing they should instead be considered for Emmys. Spielberg's plans were for naught, however, as the Academy refused to ban stream-first films from nominations. This led to Spielberg, directly and through mouthpieces, walking back his very clear intentions so as to pretend that he felt differently than was the reality. I'll stress again that all of this occurred all of two years ago.

Which is part of what makes it strange that Spielberg's production company, Amblin Partners, just inked a multi-film deal with Netflix.

In a press release on Netflix's website, the two companies announced that the partnership will result in "multiple new feature films per year." As is often the case, today's press release was accompanied by prewritten statements by various executives involved, including Spielberg himself. The quote attributed to him says:

At Amblin, storytelling will forever be at the center of everything we do, and from the minute [Ted Sarandos, Netflix co-CEO and chief content officer] and I started discussing a partnership, it was abundantly clear that we had an amazing opportunity to tell new stories together and reach audiences in new ways. This new avenue for our films, alongside the stories we continue to tell with our longtime family at Universal and our other partners, will be incredibly fulfilling for me personally since we get to embark on it together with Ted, and I can’t wait to get started with him, [Scott Stuber, Netflix head of Global Film], and the entire Netflix team.

The obvious immediate question that comes to mind is to wonder aloud just how many Emmys Spielberg thinks he can win under this partnership. Snark aside, it's worth noting that Amblin doesn't solely produce films by Spielberg and that the production company has already produced some streaming hits on Netflix, most notably The Trial of the Chicago 7, as noted in the ArsTechnica post.

Still, it's quite an about face for a world famous director, who, only 2 years ago, was plainly arguing that films that release on streaming services like Netflix are somehow a different animal than those that first enjoy a theatrical release. That whole argument was flawed for multiple reasons, including just how much movie content is now primarily enjoyed via streaming, coupled with the shoddy job theatres have done in actually fulfilling their value-add propositions, otherwise known as the only real reason why the public should want to go to the theatre instead of watching a film at home.

If Spielberg can be dragged into modernity, that's a good thing. But we shan't forget his previous statements, if for no other reason than they should probably serve as a warning to any other "get off my lawn" crowd members who want to pretend like culture doesn't change.

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Sweden Abruptly Decides Esports Are Not Sports When It Comes To COVID-19 Exemptions

from the going-viral dept

We've marked an awful lot of progress markers when it comes to the emergence of esports into the popular lexicon throughout the world. If there were a general theme to those posts, it certainly would be the progress esports has made in being considered a real, established sport, and not just a hobby that borrows that word with no validity. Progress, as I enjoy saying, is not linear, however.

And now it appears that how at least one nation is dealing with the world's early emergence from COVID-19 protocols, is exposing one minor step back on all the progress. Sweden was set to host Valve's DOTA 2 big championship contest, The International, until very recently when the country's sports federation suddenly decided that esports aren't actual sports when it comes to COVID-19 travel exemptions. By way of background, this tournament was originally supposed to be held in Sweden in 2020, but it got pushed to 2021 due to the pandemic. As Valve planned for the event, it worked with the Swedish authorities to make sure everything was a go.

As Valve outline in a blog post, Sweden still has a number of stringent restrictions in place regarding public gatherings, which would otherwise threaten the ability to hold a big in-person tournament like The International, even though elite sporting events have been excluded from these.

Valve claims that as planning continued local authorities “continued to reassure us in our regular and constant communications with them that The International - Dota 2 Championships qualified for the same exemptions other elite sporting events there received.”

The exemption language specifically states that travel exemptions would apply to, among other categories,:

-people travelling for the purpose of performing highly skilled work, if their contribution is necessary from an economic perspective and the work cannot be postponed or performed remotely, including people who will take part in or perform necessary tasks at elite sports competitions

That sure does sound like The International would fit the categorization. Due to that and to the communication with the Swedish government, Valve planned to host the tourney in Stockholm. Then, suddenly, The Swedish Sports Federation voted to not allow any esports organizations as members. As a result, the COVID-19 exemptions no longer would apply to anyone traveling to the country for the tournament. Soccer and other sporting matches that include large crowds and international players are all moving forward; esports tourneys like The International will not.

Not wanting to give up, Valve instead asked Sweden’s Minister of the Interior to “reclassify The International - Dota 2 Championships as an elite sporting event.” Which he immediately refused. They then appealed directly to the Swedish government, and were knocked back again.

So now, as July approaches, Valve has decided to all but abandon their Swedish plans and start “looking for possible alternatives elsewhere in Europe to host the event this year, in case the Swedish government is unable to accommodate The International - Dota 2 Championships as planned.”

Now, we can argue all day long whether the world in general, or Sweden in particular, is in the right place when it comes to combatting COVID-19, whether large sporting events like this should even be held, or under what circumstances they should be held. But what doesn't seem to make sense in any capacity is to have the approval to host this agreed upon tournament live at the pleasure of a Swedish sports organization's opinion on whether or not esports is sports-y enough to warrant the same exemptions as other large sporting events.

Two steps forward, one step back, when it comes to esports' place in the world alongside more traditional athletic events. And with just a dash of annoying bureaucracy to boot.

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Chinese Government Continues To Arrest More Journalists Over Nonsense 'National Security' Law

from the seeing-red dept

The decline of democracy in Hong Kong, with Beijing continuing to tighten its grip, has accelerated. While the Chinese government pledged a hands off posture towards Hong Kong for 50 years when the UK relinquished its control, that pledge seems to have been worth less than the paper on which it was written. A couple years ago, Hong Kong implemented a new "national security" law that has almost nothing to do with national security beyond allowing for the prosecution of anyone who doesn't think the CCP are perfect in every way. The end result of that has been the arrest of media members accused of participating in "unauthorized protests", arrests of protesters themselves, and the ousting and later arrest of pro-democracy lawmakers for the crime of being pro-democracy.

One of the media members arrested early on was Jimmy Lai, founder of the Apple Daily newspaper and website. Lai had initially gotten out on bail, only to have that bail revoked by the court on reinterpretation of the national security law. If the Chinese government thought that his arrest and treatment would end the voracious threat of an actual journalistic outfit in the Apple Daily, it was sorely mistaken. As you might expect, this of course has led to even further arrests of Apple Daily staff and partners.

Hong Kong police have arrested five editorial executives, including the editor in chief, of media outlet Apple Daily, freezing more corporate accounts and imperiling the future of the region's most feisty, investigative paper. Ryan Law, the chief editor, the CEO of the newspaper's publisher Cheung Kim-hung, the publisher's chief operating officer Chan Puiman, and two other editors were among those arrested. The Apple Daily live stream showed Law being led out of the paper's offices in handcuffs early Thursday morning.

"They're our top three editorial people, they've just stripped out our top three editorial people," said Mark Simon, a Taiwan-based executive with the paper's publisher Next Media.

These types of arrests in Hong Kong are so frequent now that they risk becoming routine in the eyes of the world. Thanks to the unfortunate rise of populist authoritarianism in many Western democracies, many world nations have self-neutered their ability to credibly respond. The end result is that Hong Kong has been largely left to the communist wolves, with much lip-service being paid by the rest of the world.

In the case of these specific arrests, the Hong Kong stasi did its stasi-thing because the Apple Daily had the gaul to suggest that other countries should actually get off their asses and do more to help the Hong Kong people.

Li Guihua, a senior officer with Hong Kong's special legal body set up to prosecute national security cases, said that the editors were arrested because of "dozens of articles in Apple Daily that called on foreign agencies to impose sanctions on China or the Hong Kong government."

Around 200 police officers were sent to Apple Daily's offices to search the premises and confiscate "journalistic materials," according to a national security police statement.

"There is huge frustration that Apple Daily won't stop," said Simon.

No doubt, but none of this means the rest of the world has to stand by and do nothing. Unfortunately, standing by and doing nothing appears to be the plan, as the Chinese government continues the slow reverse-drip of any independence in Hong Kong, sucking out the established freedoms of the population a handful of arrests at a time. The government's plan appears to still be to scare the absolute shit out of everyone until they self-censor. The below is again from Li Guihua:

“I also want to give a warning – don’t attract suspicion. If there’s no special circumstances for you to share it, I advise you not to do it, so as not to attract suspicion,” Li said.

And that's the real purpose in all of this. Yes, news organizations like the Apple Daily are a threat to Chinese rule, but the real threat is Hong Kong's citizens. If they collectively decided to really kickstart a pushback, that would create a crisis that would put Hong Kong in the type of international crosshairs that are more difficult to ignore.

But for now, it seems, the world is content to just watch all this from the sidelines.

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New 'Guardians Of The Galaxy' Game Has Game Streamers Worried Over Integral Music In The Game

from the ooga-chaka dept

With streaming games and "let's plays" becoming a dominant force of influence in the gaming world, one of the sillier trends we've seen is video games coming out with "stream safe" settings that strip out audio content for which there is no broadcast license. We've talked already about how this sort of thing is not a solution to the actual problem -- the complicated licenses surrounding copyrighted works and the permission culture that birthed them -- but is rather a ploy to simply ignore that problem entirely. That hasn't stopped this from becoming a more regular thing in the gaming world, even as we've seen examples of "stream safe" settings fail to keep streams from getting DMCA notices.

Well, if there were a perfect example of a video game that highlights the absurdity of all of this, it may well be the forthcoming Guardians of the Galaxy title. If you're not familiar with the GotG movies, you should know that retro music plays a major role in the films. The game promises that retro music will be just as important as in the films. And that's what immediately set off concern for game streamers.

One group that is wary of this heavy emphasis on pop music is the livestreaming crowd, who are concerned that it could make the game near-impossible to broadcast. This is because Twitch and YouTube creators are regularly hit with what are known as Digital Millennium Copyright Act (DMCA) notices.

As such, a number of social media users have expressed hesitancy to livestream Guardians of the Galaxy when it comes out in October, as they are worried that the game's licensed soundtrack might cause them to receive a DMCA strike.

This seemed to be the general reaction to the game among streamers. The game publisher of course secured the rights to the songs to be included in the game, but did not license the songs for rebroadcast. Because the world is an extremely stupid place, streaming a game equates to a rebroadcast of any music within it. And, also because the world is an extremely stupid place, Eidos-Montreal's solution to this is once again to mute licensed music.

Newsweek contacted Eidos-Montréal to ask if they had made any considerations for Twitch streamers in respect to Guardians of the Galaxy's music. Over email, a spokesperson confirmed that there will actually be an option to mute licensed tracks, if players want to be absolutely safe from potential DMCA takedowns.

And so a major thematic element for the franchise will be nixed in any live-streams of the game. That is immensely frustrating. Yes, "dad rock" is an important component of the franchise and will be likewise in the game, but nobody is buying the game in order to listen to the music. By the same token, nobody is going to watch a stream of the game for that music, either. The music is important to the franchise, but its appearance in a live-stream of the game is certainly not a replacement for buying it in the marketplace.

But here we are, because permission culture demands it.

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Nintendo Hates You And The Company Most Certainly Does Not Want You To Co-Stream 'Nintendo Direct'

from the direct-as-in-direct dept

If you're a fan of gaming giant Nintendo, you really should know by now that Nintendo hates you. More specifically, when Nintendo is presented with a choice to either allow its rabid fans to express their fandom in new and interesting ways or attempt to exert iron-fisted control over every last thing, the company will always, always, always choose control. From taking down fan-games, DMCAing let's plays and much-loved video game music from its properties, or shutting down fan-projects for fiction or movies, the company behaves as though it just can't help itself. To be clear, Nintendo is typically within its rights in taking these actions, but it doesn't have to. This is a choice, not a necessity.

And now, on the cusp of this year's Nintendo Direct, the company's E3 presentation that serves essentially as one giant commercial for what's coming out from Nintendo in the near future, the company has put out a statement in Japan insisting that nobody co-stream the event.

Leading up to the event, the Kyoto-based game company has issued a request on its Japanese Twitter account: Do not co-stream our presentation.

“Please refrain from mirroring Nintendo Direct footage and sound during the Nintendo Direct livestream,” the tweet reads. Nintendo will allow simultaneous viewing (reactions, basically) without mirroring—and thus, without streaming sound or footage.

Nobody seems to be sure if this applies in other countries, such as America, as well. Even if this is limited to just Japan, or perhaps especially if this is limited to just Japan, this makes little sense. The very idea behind big productions like Nintendo Direct is to generate massive amounts of interest in future Nintendo projects. Why in the actual hell would the company not want that production disseminated as far and wide as possible? Why limit the avenues by which people can watch what is essentially a commercialized hype-video for its own products?

This is something akin to when companies have on occasion DMCA'd their own commercials on sites like YouTube, except those are typically done in error. I guess some should take this as a sign that maybe Nintendo doesn't actually want you to watch Nintendo Direct this year.

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Geigner's Effect: CDPR Breach Worse Than Originally Reported, Because Of Course

from the this-is-the-way,-unfortunately dept

There has been a theorem proposed on these pages, originally by Mike himself, for a long time that goes something like this: when a data breach is first reported in the news, the severity of the breach is always, always, always underreported and there will eventually be an admission that the breach was much worse. Despite this not having been my original idea, I nonetheless slapped my name on it and called it The Geigner Effect. If that sort of name-slapping is good enough for former US Presidents, it's damned well good enough for me.

Anyway, an example of this is Ninteno's 2020 breach, where user data for the Nintendo Network was stolen, with the number of reported accounts effected magically doubling from 140k to 300k after a few months. It's also happened with Equifax, TJX, and even our own federal government. Perhaps most infamously, it also occurred when Yahoo acknowledged there was an email breach of a few hundred thousand accounts in 2013 that grew and grew over subsequent reports until, eventually in 2017, Yahoo acknowledged that literally every account had been affected.

In February, game studio CD Projekt Red acknowledged a breach of their corporate network. That breach was mostly for corporate assets, including source code for several games along with data from CDPR's "accounting, administration, legal, HR, investor relations, and more". Held for ransom, there was no mention in the ransom note one way or the other if user data was effected. CDPR for its part indicated it would not be giving into any monetary demands by the nefarious actors, but indicated it was working with law enforcement authorities to investigate the incident.

“We will not give into the demands nor negotiate with the actor, being aware that this may eventually lead to the release of compromised data,” the company writes. CD Projekt Red writes that it does not believe the breach contains personal data from players.

“We have already approached the relevant authorities, including law enforcement and the President of the Personal Data Protection Office, as well as IT forensic specialists, and we will closely cooperate with them in order to fully investigate the incident,” the company writes.

And, well, that's been it since February. For the lay observer, this looked like CDPR's systems and data had been restored from backup and that whatever work the authorities had done must have had a good effect, as no more information was released. For all the world, it appeared as though there was no real fallout from any of this.

Until this past Thursday, "coincidentally" the same day that E3 kicked off, when CDPR came out and admitted that the fallout from the breach both very much happened and is still going on.

As the entire gaming world laser-focused on Geoff Keighley’s sartorially questionable sneakers during the Summer Game Fest Kickoff Live! event, Cyberpunk 2077 studio CD Projekt Red released a statement regarding a February cyberattack against the company. Turns out, that data breach could not be contained.

“Today, we have learned new information regarding the breach, and now have reason to believe that internal data obtained during the attack is currently being circulated on the internet. [...] We are not able to confirm the exact contents of the data in question, though we believe it may include current/former employee and contractor details in addition to data related to our games,” CDPR wrote in a tweet published at 2:39 p.m. ET, smack in the middle of today’s hotly anticipated showcase of video gaming advertisements.

This is the gaming industry equivalent of the old axiom: if you have to break news you really want to bury, break it at 5p on a Friday. In this case, CDPR was obviously attempting to limit the exposure of this news by announcing it just as the entire gaming world was focused on the start of E3. Why?

Well, perhaps it has something to do with just how vague CDPR is still being about what it lost in this data breach.

Today’s statement doesn’t say whether or not players of CDPR’s games were affected. Representatives for CDPR did not immediately respond to Kotaku’s request for comment.

That silence is not a good sign. Either CDPR doesn't know if user data was included in the breach, or it does know and doesn't want to say. That would indicate that the answer to the question of whether CDPR's customers' data is out there in the wild is somewhere on a spectrum of "yes" and "maybe".

And if the Geigner Effect holds true, one could expect a follow up post to this one on exactly that topic.

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Oatly Sues PureOaty For Trademark And Trade Dress Infringement

from the milking-it dept

Maybe it's something about being in a beverage industry that makes people treat trademark law as though it were something it most definitely is not. For years, we've discussed the trademark problem that the exploding craft beer industry has faced. Oatly, the Swedish company that produces that well known non-dairy milk product, is most certainly not in the alcohol business, but they appear to be aping the most aggressive members of that unrelated industry in a recent lawsuit filed overseas against a very small competitor, which makes a product called PureOaty.

Oatly, the Swedish oat milk maker with a market value of $15bn, has taken legal action for trademark infringement against a Cambridgeshire-based family farm over its PureOaty drink. The Malmo-based group accuses Glebe Farm Foods, which specialises in gluten-free oats, of infringing trademarks including the Oatly brand name and pack design, and of “passing off” the beverage as Oatly, according to documents submitted to the court.

Now, most of Glebe Farm Foods' business has nothing to do with selling oat-based milk substitutes. Instead, the company makes most of its money selling gluten-free oat-stuffs to food producers. But it does sell PureOaty as a side product, rebranded under its current name in early 2020. Notably, the oat-based milk industry is expanding quickly, with plenty of startups getting into the business. In other words, this very much looks like an early-stage version of the craft beer industry.

With that in mind:

Lawyers for Oatly and its UK business claim that when Glebe Farm rebranded its Oat Drink product as PureOaty in 2020, “Glebe Farm’s intention was to bring Oatly’s products to mind and thereby to benefit from the huge power of attraction and reputation of Oatly’s branding”.

Oatly’s lawyers claim that the name PureOaty calls to mind Oatly, while the product’s blue packaging and image of a teacup also recall the Swedish brand.

Okay, let's take these two claims, the basis for the lawsuit, in order. The claim that PureOaty calls to mind Oatly is odd. Sure, both brand names include the word "oat", but that's descriptive of what the milk product is made of. The "Pure" is, frankly, doing a lot of work in differentiating the two brands. All that's really left is the "y" at the end of each brand name and if that's where the confusion claim rests, well, that isn't very convincing at all.

As for the argument that the trade dress is going to be confusing, well:

If those two products confuse you, you need help. The color scheme is different, as is the placement of the branding and all the verbiage on the packaging. The only real commonality is, as Oatly called out, the inclusion of a tea or coffee cup. And the fact is that both of these products are used as creamers. Including a tea or coffee cup isn't particularly distinctive for these oat-milk products.

But, as is always the case when it comes to trademark bullying, this is likely happening at least in part because Glebe Farm Foods is tiny compared with Oatly. That's why trademark bullying works. Whether it does in this case I suppose will come down to how hard and long Glebe Farm Foods wants to fight back.

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The Decades-Long Trademark Dispute Over 'Pretzel Crisps' Comes To Its Obvious End

from the getting-twisted dept

It's quite incredible how often the unfortunate growth of ownership culture in America produces silly trademark disputes over terms that obviously shouldn't be valid trademarks. While examples of this are legion, let's get right into what has become a decade-plus long dispute over "pretzel crisps". Snyder's, acquired by Princeton Vanguard, has long made a "pretzel crisp" product. In 2004, the USPTO registered the company's "pretzel crisp" mark, but as a supplemental to an earlier registration, deeming it "descriptive". If you want to argue that the term "pretzel crisp" is not descriptive, well, don't because you're wrong. Even Princeton Vanguard didn't argue differently until 2009, when it attempted to argue that the term had acquired distinctiveness in the public, associated with the company's brand and product. The USPTO remained unconvinced when Frito-Lay opposed the registration as it had its own similar product, with that opposition going so far as to actually seek to have any registration for the term canceled as generic.

From there, the companies found themselves in lawsuit-land.

(Note to the reader: this is normally where I would include a useful pull-quote from the bakeryandsnacks.com link above about how two federal appeals courts ruled against Snyder's, affirming the mark as generic, but unfortunately that website seems to think that disallowing any copy/paste of its text is somehow the same as enforcing copyright. When attempting to do so, you get a copyright warning. Now, I could simply type out the quote and use the text anyway, given that such use would fall squarely in fair use territory, but instead I'll use this space to give a big "fuck you!" to bakeryandsnacks.com. You're welcome for some traffic, you restrictive ass-bags!)

Anyhoo, while two losses in federal court really should have been the end of this, yet another civil action was brought by Princeton Vanguard in the US District Court for the Western District of North Carolina. Both parties asked for summary judgement as to whether the term "pretzel crisp" can be registered as a trademark or if it's generic. The court declined to grant summary judgement based on a procedural technicality. But the court did still rule on the overall question of the generic nature of the term.

Especially significant here, the law forbids trademarking generic terms, even when a putative mark holder engages in successful efforts to establish consumer recognition of an otherwise generic term. Id. at 193-94. “[N]o matter how much money and effort the user of a generic term has poured into promoting the sale of its merchandise and what success it has achieved in securing public identification, it cannot deprive competing manufacturers of the product of the right to call an article by its name.”...In sum, courts have long sought to foreclose companies from monopolizing common terms, holding that no single competitor has the right to “corner the market” on ordinary words and phrases.

From there, the court gets into a long discussion on the standards of determining if a term is generic, with specific standards around the combining of two descriptive or generic terms and how that effects the compound term's generic or not nature. It's all very interesting if you're into that sort of thing, as am I, but the court's conclusion is the larger point.

Although the Court concludes that the combination of the generic elements “pretzel” and “crisps” does not create any additional meaning for consumers from which they can distinguish Plaintiffs’ product and thus indicates that PRETZEL CRISPS is generic, the Court does not rest its finding of genericness on that finding. Rather, after considering de novo all the evidence offered by the Parties which bears on consumers’ perception of the mark, the Court finds that, on balance, a preponderance of the evidence supports the conclusion that the mark, considered only in its entirety, is generic.

Of course it is. The term "pretzel crisp" tells you absolutely nothing about who produced that product. The rest of the branding on the packaging has to do that instead. Why? Well, because the term "pretzel crisp" merely tells you what product is in the bag or box you're buying. It's descriptive, a generic term for a type of foodstuff.

Meanwhile, this order is 53 pages long, filled with the history of this dispute, with survey evidence brought by both parties, legal standards and the like, all just to outline why, for the fourth time now, someone has had to tell Snyder's that "pretzel crisp" is a generic term.

If that isn't a perfect example of how insane ownership culture is, I can't imagine what would be.

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Denuvo Is Still Claiming It's In The Anti-Piracy Business Even As Games Continue To Strip Out Denuvo Post-Launch

from the useless dept

For a three year period or so, we had a ton of coverage on Denuvo, a DRM platform once touted as undefeatable. That era of invincibility soon crumbled completely, with cracking groups eventually figuring out how to get around the DRM. Cracking times on games went from months, to weeks, to days, to essentially games being cracked at launch. Games started patching Denuvo out of games, which is roughly the equivalent of admitting defeat. In response, Denuvo began claiming that it's platform was still a success because it could protect some games for some number of hours at the time of launch and the company apparently believed that really should be good enough. The company also announced a pivot to providing anti-cheat software for online games, though publishers began ripping that out of their games at record speed as well.

So, where are we now? Well, the new status quo appears to be this: Denuvo still advertises both its anti-piracy and anti-cheat platforms as successes while games that use the software are still having them peeled out via patches. Notably, Denuvo's marketing material now reflects the emphasis on the initial release window, where Denvuo claims its platform can protect a game for 14 days after launch, during which publishers earn "59% of their revenue from their new title."

As with all things Denuvo, this claim should be taken with enormous grains of salt for a variety of reasons. First, that revenue claim seems spurious, given how many games make revenue in how many different ways. Online games make their revenue on an ongoing basis, while single-player only games may make the largest chunk at release. But many single-player games make lots of money on an ongoing basis by embracing their modding community, updating games to keep them relevant to new buyers, releasing DLC, etc. It's also worth noting that Denuvo has failed spectacularly to protect many, many titles for anything close to 14 days.

But most important to note is that this represents the continued moving of the goalposts by Denuvo. The platform was once touted as "the end of gaming piracy." Now the focus is on 14 days of protection. Why? Well, the answer is that games long in existence are still patching Denuvo out.

When Monster Hunter: World launched on Steam in 2018 it came with a DRM system to deter pirates by requiring online activation to launch the game. This is often a source of ire for players because of a perception that it causes higher CPU usage and more frequent utilisation of storage devices that could affect gameplay or damages hardware. Denuvo has denied these claims.

Monster Hunter: World’s latest patch has removed around 500MB of files from the game, and the steam page no longer states that MH:W has some form of DRM.

That post, in addition to noting Denuvo's denial that the DRM has literally any performance impact on a gamer's machine, also goes on to claim that "it is not uncommon for companies to remove the DRM in a patch once it is no longer necessary."

That may be true for Denuvo's anti-piracy platform specifically, but it certainly is not the case for how DRM has been handled generally throughout gaming's history. In addition, think about what is being said in that claim. A DRM that has at least some utility and no performance impact on gaming machines is stripped by publishers like that of Monster Hunter: World because... why? Just because of public perception on gaming performance? A perception that exists at launch? Why, after a couple of years of the game being sold, would the publisher now even bother to strip out the DRM if it has no actual negative downside?

Well, there are three possible answers. One is that the game publisher knows that, in fact, Denuvo does have an effect on the game's performance on a buyer's machine. Another is that the game publisher realizes that the DRM does not in fact have any actual utility. The third option is that the game publisher concludes that both are the case.

Either way, a successful product doesn't get stripped out of games through patching. Unsuccessful products do that. No matter what Denuvo wants to claim for itself in its marketing material.

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Chief Publishing Lobbyist Maria Pallante Claims Copyright Is 'Under Assault' At Annual Meeting

from the unfortunately-not dept

The Association of American Publishers, like most industry lobbying groups, has a reputation for jealously guarding industry profit-making, no matter the larger implications of their doing so. In the past, the AAP has advocated for secret copyright treaties designed specifically to protect the publishing industry, getting Google to make its Google Library project far less useful, and has sued the Internet Archive's digital library program in the middle of the COVID-19 pandemic. Again, the AAP is a lobbying group and we should expect them in some respects to behave like one, but it's important to tease out what they're lobbying for and against and whether its interests are shared with the interests of the general public. Spoiler alert: they absolutely are not.

So, when the AAP held its recent annual meeting and devoted a portion of this 90-minute affair to the importance of copyright, that would typically be met with something of a yawn and a hand-wave. And when it got several mediocre persons to also speak at that meeting in part to rail against the omni-present threat of "big tech", well, most of us probably just kept yawning.

As part of their remarks, Brian Napack, AAP chair and CEO of John Wiley, and Maria Pallante, CEO of AAP, made clear that protecting copyright remains the top priority for the association.

Minnesota Senator Amy Klobuchar voiced her concerns over the power of Big Tech in accepting the AAP’s 2021 Award for Distinguished Public Service. Keynote speaker Don Lemon (CNN host and author of This Is the Fire), urged publishers to publish more authors of color, while closing keynoter Brad Stone focused his remarks on Amazon, the subject of two of his books, The Everything Store and the recently released Amazon Unbound.

If Senator Klobuchar wants to join the likes of Donald Trump in complaining vaguely about "big tech", well, I guess I'll just have to somehow manage to keep my eyes dry. The inclusion of divisive cable news commentators is certainly a choice to be made, I suppose, as is the inclusion of a biographer for Amazon and Jeff Bezos who isn't always super kind to the company or its leader. That Stone's books can be bought on Amazon is at least a partial rebuttal of all the "big tech" complaining, but I digress.

Instead, what is most notable from this annual meeting is the CEO of the AAP, Maria Pallante, proclaiming to the audience that the association would do everything possible to beat back the "assault" in progress on America's copyright laws.

To make sure that publishing remains a good business to be in, AAP’s job, Pallante said, “is to ensure that you can compete fairly in the modern marketplace.” Regrettably, she continued, “there are actors who seek to weaken your legal protections in order to advance their business interests, whether that interest is in bloating the fair use doctrine to illogical boundaries or, more blatantly, appropriating and monetizing your works without permission.”

In Pallante’s view, the exclusive rights delineated in the Copyright Act are under assault, as is an effective enforcement framework, and she said the DMCA, which governs how infringing content on websites can be taken down, “is badly in need of updating.” She also lamented the lack of a competitive marketplace in which authors’ works can be discovered and publishers can compete “without unfair control or manipulation from dominant tech giants.”

Think about the claims in that statement. "There are actors that seek to weaken your legal protections in order to advance their business interests" is a hell of a take from the CEO of a lobbying group that literally does that exact thing to the public. More copyright laws that strip away the public's rights, stricter enforcement with less legal protections for the accused among the public, diminishing the role of fair use: literally all of these things Pallante is advocating for are well-described as an actor seeking to weaken your legal protections to advance its business interests. Pallante is literally the villain she's complaining about.

As for copyright being "under assault", well, I can only assume it's under assault in the same fashion that I'm constantly told that Christmas is under assault, by which I mean it only expands, becomes more arduous and annoying, is omni-present, and is tied strictly to commercial interests.

Pallante goes on to suggest that the AAP's lawsuit against the Internet Archive's library platform had better be victorious... or else basically all copyright protections go away.

In a final point about copyright, Pallante said that the lawsuit the association filed a year ago against the Internet Archive for copying 1.3 million scans of books is still in discovery, but said the IA’s activities “are well outside the boundaries of both the law and copyright commerce, and ultimately pose an existential threat to the copyright framework on which authors and publishers rely.”

If you can read that and not burst out laughing, you have a stronger constitution than I do.

Now, if Pallante's name sounds at all familiar to you, it's because she previously ran America's Copyright Office. Now, I will say this much: I will happily take Pallante's doomsday for copyright claims more seriously than I have in this post if she can tell me what happened to the $11 million that the Copyright Office, under her leadership, managed to spend on a computer system that never materialized, was supposed to cost a tenth of that spend, and was the subject of several lies in the Copyright Office's reports to Congress.

Otherwise, I'll just note that copyright law in this country is so laughably bloated that it deserves an assault, but isn't actually on the receiving end of one.

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Twitch Manages To Get Out Some 'Disappointment' With Music Industry Over Latest Round Of DMCA Claims

from the oooooh-disappointment! dept

The saga that has been Twitch's last six or so months is long and somewhat varied, so you should go read up on our historical coverage if you're not familiar with it, but we need to at least preface this post with the origins of how Twitch's bad time began. What has been a tumultuous several months began when it absolutely freaked out over a flood of DMCA takedown notices it received, mostly from the music industry. In response to that, and without warning to its creative community, Twitch nuked a bunch of content from the platform, mostly ignored the outcry from its creators, and did very little to put anything in place that would keep such a disastrous situation from happening again.

So of course it happened again. Twitch recently sent out an email that it had received roughly 1,000 additional DMCA takedown notices, almost all of them again over music playing in the background of recorded Twitch videos.

Said Twitch in its email on Friday: “We are committed to being more transparent with you about DMCA. We recently received a batch of DMCA take down notifications with about 1,000 individual claims from music publishers.

“All of the claims are for the VODs and the vast majority target streamers listening to background music while playing video games or IRL streaming. Based on the number of claims we believe these rights holders used automated tools to scan and identify copyrighted music in creators VODs and clips, which means that they will likely send further notices."

Of course they will. Twitch invited them to when it showed itself to be a willing partner in treating Twitch creators like a testing ground for DMCA cluster bombs. There are platforms out there that manage to both treat DMCA requests seriously and also provide some protection, or at least communication, to its users. A few tools for creators aside, Twitch's inaction on behalf of its creative community amounted essentially to greenlighting ever more DMCA takedowns from the music industry. Any surprise at that by the Amazon-owned company is laughable.

But this neutered, throwaway line from that same email is simply maddening.

“This is our first such contact from the music publishing industry (there can be several owners for a single piece of music) and we are disappointed that they decided to send takedowns when we were willing and ready to speak to them about solutions.”

As the old saying goes, be disappointed at the music industry's aggressive copyright enforcement in one hand and spit in the other and see which fills up faster. There is no substance to this disappointment. Of course the music industry has gone kazoo filing DMCA notices at Twitch. Twitch has made it clear its on their side, even making it easier than before to file these notices.

The real disappointment here is that Twitch, and by extension Amazon, has so wildly left its creative community out to dry when it comes to copyright enforcement and DMCA takedowns. It's simply not doing enough.

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A Conversation About Video Game Preservation In The Gaming Industry Is Long, Long Overdue

from the we-need-some-speed dept

There has been quite an uptick recently when it comes to the conversation around video game preservation. There are probably several reasons for this. First and most notably, the confluence of the trend toward the gaming public primarily purchasing digital games rather than shiny disks, and the emergence of the latest generation of video game consoles has brought the question of what happens to older games into stark relief for many in the gaming public. Second, America has been in something of a love affair over the last decade or so with all things "retro". And, finally, the concept of video games as works of creative art, rather than wastes of time to be sneered at, has found firm purchase within our society. All of this has combined to make the public much, much more interested in preserving antiquated video games. And, frankly, very disappointed at how often the gaming industry doesn't take preservation at all seriously.

Well, it's happening again. In the near future, Electronic Arts will be shutting down the servers and online portions of several Need For Speed games.

Today, via Reddit (while most the English-speaking world is on a holiday), it’s been announced that Need For Speed: Carbon, Need For Speed: Undercover, Need For Speed: Shift, Shift 2: Unleashed and Need For Speed: The Run will be “retired”. Which I suppose is an apposite word, given they’ll be limping off the tracks as they leave digital storefronts today, and their servers switched off come the end of August.

The reasons given are the usual: that maintaining servers for the few remaining players is prohibitively expensive, and hey, look, they’ve released loads of (astoundingly poor) NFS games since then, so you could buy those instead!

Note a couple of things on this. While the offline portions of the games will still be playable for those who have already purchased them, new buyers will no longer have a place to legitimately buy them. Also, while there is a single player component, a big draw of the games was and continues to be the ability to race against friends online. Finally, note that this announcement comes with absolutely no plan to make the game or online play available in any other way.

Which is where the preservation conversation comes in. Once again, we have a game publisher that enjoys full rights controls over its property choosing to simply deprive the public of some or all of that property. A more perfect antithesis of the concepts of the public domain and copyright law generally probably can't be found. While EA explained away its decision to "retire" these games as the expense that comes along with maintaining servers and backend infrastructure for relatively fewer players -- along with a suggestion that disappointed gamers simply by new games in the Need For Speed series -- it's not like there aren't steps it could take to play nicely with its fans if it wanted to.

It’s always this way. “Shrug! What else could we do?!” Well, here are some other things they could do:

They could release the source code for the 10-15 year old games, and allow others to continue their development in the public domain. They could release the server code for the games, to allow enthusiasts to continue to host the few dedicated players remaining. They could offer to upgrade players to one of the many NFS games of the 2010s (although this may be crueller than just nothing at all). They could recognise that last year EA made a revenue of $5.5bn, and it’s likely they could just about afford to leave the servers on with minimal maintenance, without taking too big of a hit

Delisting them from stores just seems... petty! Sure, they don’t offer all the available features when the servers are off, but come on. Quarter the prices—hell, be decent enough to make them free—and let people buy them as single-player artefacts of the past.

In other words, either preserve the games for fans yourselves, EA, or let the fans do it for you. Either option is viable. But simply switching off the servers and making the games no longer available for purchase at any price is probably not so much a petty thing to do as it is a callous thing to do.

And when a company starts acting callous towards its dedicated fans, well, that's not a good plan for building either goodwill or more buying fans.

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Unofficial Amiibo Guidebook Will Be Released With Changes To Appease Nintendo

from the officially-unofficial dept

Just a couple of weeks ago, we discussed a Kickstarter project for an unofficial guidebook to Nintendo's Amiibo product line. While no regular Techdirt reader could have possibly have been surprised that Nintendo issued threats and a DMCA on the project, it was a bit odd for two main reasons. First, Nintendo's main gripe appeared to be the use of some of the corporate iconography and other "design marks" proposed for use in the publication, rather than any wholesale copyright or trademark claim to literally everything in the book. Nuance of that kind is not the norm for the notably litigious and protective Nintendo. Second, this whole fight looked to be something of Nintendo shooting itself in the foot, as the project is essentially one giant advertisement for Amiibo products. Why in the world, we wondered at the time, would Nintendo not want such a book to be released to the public?

Well, it seems that perhaps the company does in fact understand all of this. Reports now indicate that the author of the project and Nintendo have resolved all issues the company had and the book will in fact get its release as an "unofficial" guidebook.

The webpage for the Kickstarter project led by Paul Murphy and Ninty Media that was previously entangled in a legal dispute with Nintendo has finally been reinstated. Murphy sent an e-mail to backers of the project, explaining that Nintendo had taken issue with the use of copyrighted materials. While there was some uncertainty about whether the project which had raised over £36,000 GBP would see the light of day, Murphy had reassured backers that they would be refunded if he was forced to halt the project completely.

It seems as though fans no longer need to worry, as changes have been made to the project, with the name of the book being transformed into "The Unofficial amiibook", so as to prevent potential readers from confusing the fan project with official Nintendo merchandise. Though Murphy stated that he could not go into the specifics of the legal dispute, he confirmed that it was a copyright strike focused on "the use of a design too close to a trademark owned and registered by Nintendo."

Here we need to employ a bit of nuance ourselves as we analyze what this all means to the Techdirt community. On the one hand, it's nice to see Nintendo appear to have worked relatively amicably with the project author so that this project could still get a release at all. Again, Nintendo has a reputation for employing every possible avenue to exert as strict a level of control over all references to its properties as possible. I'll be frank: a week ago I would have told you there is a near-zero chance this project ever sees the light of day. Nintendo appears to have proved me wrong on that. Good on them.

On the other hand, does anyone really believe that any changes the author agreed to make at Nintendo's request will have an actual material impact on whether buyers of the book confuse it with some kind of official Nintendo release? Of the roughly 15,000 backers of the Kickstarter project, how many previously thought that Nintendo was now crowdsourcing guidebooks like this?

The answer is, for all statistically relevant purposes, "no" and "none." So, sure, it's good that this project is allowed to exist at all, but it sort of sucks that this question ever had to be asked.

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High School Teacher's Copyright Suit Against Netflix Gets Dismissed Because Coincidence Isn't Protectable

from the class-dismissed dept

Of all the areas that result in copyright lawsuits that never should have been filed, it surely must be ignorance of the idea/expression dichotomy that is the most common. That link will take you to a litany of posts about copyright fights in which one party sues another over elements of a creative work that are themselves not protectable. The basic explainer goes like this: the specific expression of a work, or even the specific expression of unique thematic or character elements, can be protected by copyright, whereas mere general ideas cannot. This is why Batman is a copyrightable character, but that copyright cannot be used to sue the hell out of anyone that writes a story about an insane rich person who wears a cape and cowl while fighting bad guys. Idea versus expression.

It's crazy just how many lawsuits get filed by full grown adult lawyers who don't seem to understand this. One recent example is a lawsuit brought by a high school English teacher against Netflix over the latter's series, Outer Banks. The suit was tossed at the motion to dismiss stage, with the court reasoning that the majority of the 40-plus claims of infringement amount to either non-protectable ideas, or allegations that amount to mere coincidence that has nothing to do with copying anything at all. On the first of those:

In a 25-page opinion, U.S. District Judge Timothy C. Batten Sr. said Kevin Wooten’s 2016 book “Pennywise: The Hunt for Blackbeard’s Treasure!” had a significantly different plot, characterization, mood, pace and settings than the Netflix original.

“To be sure, both works involve shipwrecks and treasure hunts,” Batten said. “But to analyze their plots at such a high level of abstraction would render every work involving a hunt for buried treasure susceptible to copyright infringement.”

It's a useful high-level takeaway on the majority of issues with the lawsuit, but it's worth noting that the court did in fact do a deep dive on each of the claims made. Not all of them amount to generic story ideas such as the above. While the actual plotlines and characters are very, very different -- a different number of main characters, different treasures being hunted for by those characters, different outcomes, etc. -- , some of the claims detailed out in the dismissal are downright absurd.

As a preliminary matter, many of Wooten’s purported similarities either do not exist or are “random similarities” that “could be found in very dissimilar works.” Beal, 20 F.3d at 460 (quoting Beal, 806 F. Supp. at 967 n.2). For instance, he argues that “both Works clearly sought to invoke an avian theme at the mausoleum.” [19] at 14. He points out that in his novel, Nathan and Ben find a clue hidden in the wing of a bird statue at a mausoleum. He argues that this plot device is substantially similar to the protagonists’ discovery in Outer Banks of a clue labeled “For Bird.” But the bird reference in Outer Banks is merely a callback to the nickname John B’s father gave him as a child. The fact that the word “bird” is present in both narratives is entirely innocuous and of no significance in an infringement analysis.

It goes on from there, including where the court looks at the actual main characters of each work, claimed by Wooten to be substantially similar, and concludes:

In sum, the characterization in the novel is in stark contrast to that of the series. The Outer Banks characters are complex, with narratives that cause the viewer to at times sympathize with even the most nefarious individuals. In the novel, on the other hand, the naïve Pennywise twins and their uncle serve as prototypical hero figures while Darwin acts as a classic villain.

Without trying to, the motion to dismiss doubles as something of a literary review, albeit one rather unkind to Wooten's novel.

The real point of all of this is that what should be common sense ought also to be better understood among attorneys willing to file copyright lawsuits on behalf of clients: you cannot copyright general ideas, tropes, nor the obvious story elements that grow from either. Treasure hunts are as tropish as they come, frankly, and attempting to silence an entirely unrelated creative work simply because of "avian themes" and the like is nonsensical.

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Warner Bros. Bullies Airbnb Hobbit-Themed Offering Into Changing Its Name Over 'Hobbit' Trademark

from the napoleon-complex dept

We've covered intellectual property issues that revolve around Tolkien's Lord of the Rings properties before. By now, everyone should know that any use of or homage to those properties, or even coincidental usage, will typically result in angry letters from lawyers. What's even more fun about all of that is you get to play the game called, "Whose lawyers are going to write the angry letter this time?" Between the Tolkien estate and its IP management partners and Warner Bros., the studio behind the LotR films, they have managed to block an unrelated wine business from using the word "hobbit," bullied a pub named "The Hobbit" to get it to change its name before recanting said bullying, and got a Kickstarter project shut down for trying to create a real-world "Hobbit house."

This is where it's worth reminding everyone that Tolkien did not come up with the word "hobbit". That word already existed, though it meant something different than how Tolkien used it to name his race of diminutive folk. The Kickstarter example above is apropos to this post specifically, as it seems that Warner Bros. is at it again, having forced an Airbnb listing clearly designed to be another homage to Tolkien's hobbit homes in the Shire to change its name.

The Okanagan homage to middle earth that doubles as a popular Airbnb spot officially has a new name. It’s now the Second Breakfast Hideaway.

“And the h***** mountain hole is now a Second Breakfast Hideaway (I'm still full from the first one),” the AirBNB owners wrote in a May 22 post.

The popular Airbnb named for its likeness to the housing in J. R. R. Tolkien's Lord of Rings books went on the hunt for a new name following a threat from Warner Bros. which owns the trademark to the word hobbit. Christine Le Combe and her husband purchased the Halfling Hideaway, located roughly 30 minutes east of Osoyoos, last year and renamed it the Hobbit Mountain Hideaway. It's been a popular vacation destination since it opened in 2019. Earlier this week, Le Combe was contacted by entertainment media company Warner Bros. and was told the word “hobbit” is trademarked and they asked her to take down the listing.

Unfortunately, the source post doesn't bother to interrogate whether the takedown request from Warner Bros. is remotely valid. I would very much argue that it is not, considering that Warner Bros. use of the term "hobbit" is solely focused on movies and movie merchandise, both of which are a far cry from the hospitality and rental business. But Warner Bros. also has deep pockets and the folks behind this Airbnb listing likely do not, which is why trademark bullying works. The threat of Warner Bros. taking this far enough for it to see the inside of the courtroom is almost certainly an extinction level scenario for the former Hobbit Mountain Hideaway.

So, instead, a movie studio gets a rental property to change its name. And that sucks, no matter how positive the victims of this bullying want to be.

“Having to get out of my comfort zone and engage with the community has been a good experience,” Le Combe said.

“I really didn’t think that somebody would copyright the word hobbit and then try to hunt a person down if they use the word hobbit because it’s not like I meant any harm. The hobbit house is an homage to the favourite book series of a lot of people.”

It's almost as though at Warner Bros. there is some sort of all-seeing eye that scours the physical and digital worlds for any use of the term "hobbit", all in an effort to track and strike down those that would use it. If only there were some usable analogy I could reference for that without getting sued...

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Getting Absurd: Twitch Creates A 'Hot Tub' Channel, Says It Should Have Communicated With Streamers About Demonitization

from the sigh dept

Twitch seems to be putting on some sort of master class in how to respond to a crisis on its platform in as confusing a manner as possible. Without writing a thousand word summary, this whole thing started when Twitch nuked a bunch of streamer content in response to a backlog of DMCA notices, changed its affiliate program without notice, hung its streamers out to dry over the DMCAs when the backlash occurred, and basically angered the hell out of its most important asset, it's creative community. This basically set the theme for the public that Twitch wasn't treating its community very well.

This continued to the present. Most recently, we discussed one streamer suddenly having her channel demonitized, ostensibly over so called "hot tub meta" streams, in which she appears in a bathing suit in a hot tub. While Twitch can do as it pleases with its platform, the real issue here was that all of this was done without any communication or notice from Twitch to the streamer, who goes by the handle Amouranth. Well, it turns out that she wasn't alone in having her channel suddenly demonitized in this fashion.

The company also addressed the recent controversy surrounding the sudden, uncommunicated demonetization of Kaitlyn “Amouranth” Siragusa’s channel, which took place earlier this week in reaction to complaints which Siragusa says came from from a single advertiser (Siragusa told Kotaku in an email that Twitch would not say which advertiser). Twitch’s post seems to dispute this characterization, instead attributing it to “the majority of our advertiser base.” Siragusa, however, was not alone. Sources have since told Kotaku that a number of streamers had advertising removed from their channels, though it seems that not all of them noticed or said anything publicly. This has alarmed Twitch streamers, who are now in the dark as to what’s considered advertiser-friendly content and what’s not—meaning they, too, are at risk of suddenly not being able to make money off Twitch ads anymore. In the blog post, Twitch did not do much to assuage their fears, but it did confirm that demonetization is a thing that can happen now.

“On Twitch, brands get to decide where and when their ads appear,” the company wrote. “Today, they can target or avoid specific categories of content and flag channels that don’t meet their standards. This means that Twitch, in rare cases, will suspend advertising on a channel at the advertisers’ request. We absolutely do not permit brands to use protected characteristics as a filter for advertising targeting or blocking.”

Note that this is all communication that occurred after the fact. Acknowledging that, Twitch specifically stated that the way it had treated Amouranth was a "mistake." As was the lack of communication with all of the other streamers who had their channels demonitized. As was not getting the communication about what control advertisers had over channels receiving ad revenue until after all this occurred. Mistake after mistake, all of which quite frankly appear to be conscious decisions rather than oopsies.

And, in an almost exact replication of the ready-fire-aim method Twitch employed for its DMCA debacle, the company's remedy for this now is to roll out more tools for advertisers and creators to avoid this situation that should have been avoided with those tools in the first place.

To remedy this and other issues, Twitch said it’s “working to develop more robust controls for advertisers and viewers to enable them to control their experiences on our service.” It’s also working on figuring out how to communicate to streamers what exactly “brand safe” means, but this functionality will apparently “take time to build and implement.”

The other plan Twitch has coming out of this latest situation is, and I cannot stress enough that this is real, the introduction of "hot tub" channels and the like.

In a new blog post today, Twitch announced that it has created a new category: “Pools, Hot Tubs, and Beaches.” Previously, hot tub streamers largely used the catch-all Just Chatting category, which led some streamers and viewers to accuse them of somehow breaking the rules—despite the fact that they were not actually breaking Twitch’s rules. In the blog post, Twitch clarified this.

“While we have guidelines about sexually suggestive content, being found to be sexy by others is not against our rules, and Twitch will not take enforcement action against women, or anyone on our service, for their perceived attractiveness,” the company wrote, adding that it discourages harassment against all streamers regardless of their actions or intentions. “Under our current Nudity & Attire and Sexually Suggestive Content policies, streamers may appear in swimwear in contextually appropriate situations (at the beach, in a hot tub, for example), and we allow creative expression like body writing and body painting, provided the streamer has appropriate coverage as outlined by our attire policy.”

So, Amouranth did nothing wrong as far as Twitch is concerned, but it still demonitized her channel at the request of "advertisers" for reasons never fully articulated, not against Twitch's rules, without notice or communication, and with an almost perfect lack of transparency. But, hey, here's a new hot tub category for you all to stream in? The only real use I see for that is I can finally pitch Mike on my idea for a speedo-clad Twitch Techdirt stream where I yell about beer trademarks in a kiddie pool.

This is where I remind you that Twitch is an Amazon property and has hefty resources to pull from to do its platform and PR right. It just doesn't seem to want to and the one left holding the proverbial bag is its creative community.

Cool.

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Milwaukee Sewerage District Threatens Menards Over Fertilizer Sales

from the oh-shit dept

We have certainly seen some shitty trademark disputes in the past, but this one that centers around lawn fertilizer may take the proverbial cake. Apparently, the Milwaukee Metropolitan Sewerage District, supposedly focused on keeping the city's public water clean and local flooding from occurring, has something of a side hustle going where it also sells fertilizer to citizens, marketed as "Milorganite". Menards, the well-known home improvement retailer based in Wisconsin, sells its own fertilizer, marketed as e-Corganite. For this reason, in part due to an advertisement Menards put out (more on that in a moment), the Sewerage District has sent letters to Menards threatening to sue for trademark infringement. Worth noting is that Milorganite is actually sold in Menards stores.

The sewerage district has sent a letter to the company asking it to stop using the name e-Corganite for fertilizer it's been selling in Menards stores. Menard is trying to convince shoppers to purchase e-Corganite instead of the district's Milorganite fertilizer, according to the letter from Joseph Ganzer, a MMSD senior staff attorney.

The letter includes a photo of a Menard store display showing the two products next to each other.

"As you can see, the name, bag design, and label are virtually identical to MMSD’s Milorganite bag," Ganzer wrote.

So, about that advertising display, well, here it is.

Now, there is quite a bit to say about that ad display. The names of the product are markedly different. While both use "organite" in the names as a reference to the organic material serving as a fertilizer, "mil" and "e-c" are very, very different. These are not homophones. They're not calling out the same origins. They are flatly different.

On the question of trade dress, sure, both products feature a logo at the top of the bag and then a house and lawn in the imagery. The imagery is basically the same as every fertilizer product, or at least most of them. Complaining about including a home and lawn on a home fertilizer product is, frankly, silly. As to the logos at the top of the bag, well, those sure do seem significantly different as well. Different shapes on the borders combine with the prominent use of the different brand names to draw a firm distinction between the two products.

As does, you know, the fact that Menards is putting them side by side specifically to distinguish them in the advertising. Nobody is looking at that display and drawing any confusion that the two products are the same, related, or from the same origin. The whole point of the display is to draw a distinction between the two.

Yet, despite all of this, the Sewerage District has put the possibility of a lawsuit on its agenda for an upcoming commission meeting.

"The commission action is simply to ensure we may file suit if negotiations break down without having to rush an item to agenda in late summer, especially with August recess," Ganzer said.

A lawsuit could seek damages, payment of any profits tied to selling e-Corganite and reimbursement of attorney's fees.

"However, MMSD has had a long and mutually beneficial relationship with Menards and we hope to continue selling our product in Menards stores," Ganzer wrote in the letter to the retailer. "My hope is that we can come to a resolution of this matter that will allow Menards to produce and market a competing biosolid fertilizer product, while simultaneously eliminating the risk of consumer confusion with MMSD’s product," the letter said.

There is no confusion. Menards has taken great pains to distinguish its products from those of the city. The only real question left is why Menards would bother agreeing to sell Milorganite at all any longer, given that the Sewerage District appears to want to bite the hand that feeds it.

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Makers Of 'Peaky Blinders' Show Fail To Get Injunction Against Distillery For 'Peaky Blinders' Whiskey

from the cheers! dept

When you cover as many trademark disputes centered around the alcohol industry as I have, you really do start to realize just how many other industries don't seem to understand that their products are not the same as adult libations. Alcohol, you see, is not the same as a major metropolitan city. Alcohol is also not the same thing as fruit juice. Beer, as well, is not the same thing as wine. Alcohol is also not the same thing as a famous movie franchise.

And, as the producers of the hit show Peaky Blinders are hopefully about to learn, alcohol is also not the same thing as a television show about a famous historical gang. See, Sadler's Brewhouse in the UK recently applied for a trademark on the many "Peaky Blinders" alcoholic drinks it sells in the United States. The production company for Peaky Blinders the Netflix show caught wind of this and promptly sued for trademark infringement, going so far as to ask the court for an injunction to prevent Sadler's from selling its products.

Mandabach sued Sadler’s for trademark infringement in November, alleging Sadler’s “Peaky Blinder” whiskey, gin, rum, and dark beer was likely to cause confusion with its show about the 19th century Birmingham, U.K., gang after which the show is named.

Sadler’s applied for a U.S. trademark for the name in 2017. Mandabach sent it a warning letter in 2018, and Sadler’s began selling the drinks in the U.S. through co-defendants Halewood Wines & Spirits Inc and The Winebow Group LLC in 2020.

Now, before we get to how the court ruled on the injunction, there are a couple of things you have to understand about all of this. Peaky Blinders is not a fictional gang created by the show's producers. They were a very real street gang that operated in England until the early 1900s. Sadler's former owner was a descendent of a Peaky Blinder gang member and the gang used to go to the brewery's venues on the regular as a result. It's for those reasons that the company decided on using Peaky Blinders branding.

Now, the show producers claimed a number of things in its lawsuit and request for an injunction. It claimed that the trademark it held for the show was not at all descriptive, that it had acquired secondary meaning, and that there was real customer confusion in the public due to Sadler's use. The court denied the injunction and the reasoning it did so should give the producers pause on whether to keep this lawsuit going in the first place.

Caryn Mandabach Productions Ltd didn’t show that it owned a protectable trademark in the name, that Sadler’s Brewhouse Ltd’s products were likely to cause confusion, or that the alleged confusion caused it irreparable harm, U.S. District Judge Consuelo Marshall said Wednesday, rejecting the production company’s bid for a preliminary injunction.

Marshall found Wednesday that Mandabach didn’t prove it had a protectable interest in its unregistered trademarks, in part because its use of “Peaky Blinders” is “likely descriptive or suggestive of a television show regarding a group of persons named the Peaky Blinders.” Mandabach also didn’t make the “clear showing” required for a preliminary injunction that Sadler’s was likely to confuse consumers. Mandabach also wouldn’t be irreparably harmed without an injunction, Marshall said, noting that it waited over two years to sue and nearly three years to request an injunction after sending Sadler’s the warning letter.

The full ruling on the denied injunction is embedded below. If you want a sense of why Mandabach maybe should just drop this whole thing, it's worth a read. Injunction rulings have lower bars than would be considered in a motion to dismiss argument, should Sadler's seek one, but the analysis is still fairly damning. In a nod back to the opening paragraph of this post, for instance, consider the court's view on whether these two companies operate in the same marketplace.

“Related goods are generally more likely than unrelated goods to confuse the public as to the producers of the goods.” Network Automation, Inc. v. Advanced Sys. Concepts, Inc., 638 F.3d 1137, 1150 (9th Cir. 2011). Here, Plaintiff’s good is a television show whereas Defendants’ goods are whiskey. Therefore, the proximity of the goods factor does not favor finding a likelihood of confusion.

Most of the tests for trademark infringement and for granting an injunction follow a similar track.

Frankly, a great deal of this hinges on the show's own decision to use the name of a historically famous real life street gang as its show name. The idea that this slice of history could be locked up by a television show and prohibit its use in a totally unrelated market flies in the face of the purpose of trademark law.

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Unofficial Amiibo Guidebook That Was Essentially Advertising Nintendo Products Gets Nintendo'd

from the nintendon't dept

Nintendo really can't help itself. With the company's storied reputation for valuing strict control of all things intellectual property over literally everything else, we have detailed plenty of occasions where this restrictive attitude seems to work directly against the company actually selling things. From DMCAing fan-made ports of Nintendo's games to antiquated game systems, to getting fan-made expressions of Nintendo fandom taken down from 3rd party creation games like Dreams, to just DMCA carpet-bombing a wide range of fan-made games that serve as homages to Nintendo properties, the company has made it very clear that it will choose strict control over being good to its fans at every opportunity. Even, as is so often the case, when that means getting content taken down that essentially serves as an advertisement for Nintendo products.

Perhaps this has never been more evident than when Nintendo recently got a Kickstarter project shut down, as that project was for a guidebook to Nintendo Amiibo products.

Made by Ninty Media, the unofficial amiibo handbook was designed as a guidebook that catalogued every single amiibo available at the time of the book’s release. Not only does this compendium show off every amiibo, it also gives fun facts about each character listed, and even has estimated prices to help those trying to purchase these desired figures today. The Kickstarter for the book launched last month and has long surpassed its initial goal of £3,000 with £36,172 at the time of its being taken down.

However, that Kickstarter has now come to a halt thanks to this new dispute from Nintendo. Viewing the copyright notification on the Kickstarter page reveals that it is under dispute due to the use of the amiibo logo on the cover of the book, along with some of Nintendo’s other design marks. Paul Murphy, the man behind the amiibo handbook, along with other projects from Ninty Media, has posted on Twitter that he would respond shortly to this claim, demonstrating that the book isn’t cancelled yet. But he did offer refunds to anyone who contributed to the Kickstarter in the event that he loses the dispute.

Now, a couple of things I should stipulate right up front. First, Nintendo is well within its rights to take this action. Use of Nintendo's branding and imagery certainly runs afoul of copyright and trademark laws. Second, it was fairly silly of the makers of this book to use that branding and imagery, including font-types, without ever having reached out to Nintendo for any kind of approval. That would be the case if this were a book about the products of "Company X", but when it's Nintendo? C'mon, guys.

So, with those stipulations out of the way, we can now get into just how stupid this all is on Nintendo's part as well. First, again, Nintendo doesn't have to spit directly in the faces of its fans.

Given Nintendo’s history, it’s unsurprising that what have been dubbed by many as the “Nintendo Ninjas” are at it again. Similar to Nintendo’s past cases, it’s a dispute where Nintendo is legally in the right, but dubious in its morality. The more of these projects Nintendo cancels, the clearer the message that Nintendo is against these types of fan projects. It’s not a good message to send to the community, and it harms the relationship Nintendo has with its consumers.

And then let's add to all of that that this book would essentially serve as a giant advertisement for Nintendo's Amiibo products. There are a zillion ways the company could have worked amicably with this Kickstarter project so as to both protect its IP, say with a cheap or free license to use the assets in question, while also ensuring that a book for Amiibo enthusiasts still got released. By all accounts, such possibilities were never even explored by Nintendo.

That's not surprising any longer, but it remains quite disappointing. If we acknowledge that this book generally didn't serve any real threat to the monetary income of Nintendo, and likely would have been a boon instead, there was literally nothing to lose and everything to gain if Nintendo had chosen to be human and cool in this instance.

Instead, it takes a hit on the relationship front with its fans and loses out on the free advertising for Amiibo products. Great job.

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Twitch Yanks Advertising Revenue From Popular 'Hot Tub Streamer' With No Warning Or Dialogue

from the fast-twitch dept

We've covered a variety of issues Twitch is facing as a platform over the past several months, but there has also been a theme to all of these issues. Whether it's been Twitch's decision to simply nuke a bunch of creator content due to DMCA claims it received for them, its tone-deaf attempt to redirect the focus onto a dumb emoji, changes to its affiliate program, or how it chooses to roll out, or not, tools for creators to respond to the DMCApocalypse it kicked off, those stories all have one thing in common: they demonstrate that Twitch does a brutally terrible job of communicating to its most valuable asset, its own creative community.

When changes happen at Twitch, they often come as a shock to Twitch streamers. If you think that streaming on a platform that is constantly pulling the rug out from under you sounds like a terrible idea, well, I agree with you. And it just keeps happening. The latest is one streamer, who at least partially made a name for herself doing so-called "hot tub meta" streams, suddenly having her ability to make advertising revenue stripped from her without warning or dialogue.

Kaitlyn “Amouranth” Siragusa is one of the most popular female streamers on Twitch. As of now, she can no longer make money off ads on her channel. Siragusa, already one of the more recognizable names on Twitch, has benefited tremendously from the so-called “hot tub meta,” in which swimsuit-clad streamers talk to their chats, play games, and perform other activities from hot tubs. This has proven controversial despite Twitch noting to Kotaku and others that it’s not against the platform’s rules. Now Twitch has taken a different, arguably more damaging sort of action against the biggest streamer to participate in the meta.

“Yesterday I was informed that Twitch has indefinitely suspended advertising on my channel,” Siragusa wrote on Twitter today. “Twitch didn’t reach out in any way whatsoever. I had to initiate the conversation after noticing, without any prior warning, all the ads revenue had disappeared from my channel analytics.”

Let's get this out of the way: you may not like the idea of streams that are essentially women in bathing suits in inflatable pools chatting with viewers and doing random things... and that doesn't matter for this story in the slightest. Instead, what matters is that once again we have Twitch making important changes that effect streamers on its platform with both no warning at all and with no clear standard for the rules streamers are supposed to follow. In fact, as Kotaku notes, Twitch has previously indicated that these "hot tub meta" streams don't violate its rules. So, then, why strip the advertising revenue?

Frankly, nobody seems to know.

“Many people complain about [Twitch’s terms of service] being ‘unclear,’ but at least there’s something to go by,” she wrote. “There is no known policy for what results in a streamer being put on this blacklist. With characteristic opacity, the only thing Twitch made clear is that it is unclear whether or when my account can be reinstated.”

“The issue isn’t Twitch removing ads. It’s them doing so without any clarification of what their guidelines are,” she said. “We saw this coming. Everyone expected it. No one expected it without communication, though. Just, like, a stealth removal.”

She also attempted to manually run an ad from her Twitch dashboard as an experiment, but when she clicked the button, nothing happened.

She's exactly right, frankly. Say what you want about the sort of streaming she does on Twitch, but ripping away very real money and sources of income without warning is not a creator-friendly action for a platform to take. And, as I noted, this fits with the ongoing theme of Twitch not giving a hot damn about its creative community. Were it otherwise, the platform might actually attempt to communicate to and with creators, working with them to avoid this kind of policy-by-surprise system it appears to have set up for itself.

Twitch has built up quite a community for itself over the years, but lately its actions have called into questions whether it even deserves that community.

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