Netflix Asks Court To Dismiss Chooseco's Lawsuit For All The Obvious Reasons
from the this-adventure-sucks dept
You will recall that Chooseco LLC, the company behind the Choose Your Own Adventure books that people my age remember with such fondness, decided quite stupidly to sue Netflix over Black Mirror's audience-influenced production called Bandersnatch. The lawsuit is silly for any number of reasons, including that the whole thing rests on a character in Bandersnatch mentioning a CYOA book as the inspiration behind his fictional video game coupled with the fact that the film (a third medium) lets viewers choose how the story progresses. How Chooseco thinks any of that legal pixelation resolves into an actual trademark or copyright violation is anyone's guess, because it most certainly does not. Storytelling mechanics are most definitely not protectable as intellectual property. On top of that, Chooseco subsequently announced its own licensed deal with Amazon for Alexa. The timing of it all sure seems to indicate that Chooseco might have wanted to send Netflix a thank you for revitalizing interest in its products, rather than filing a lawsuit.
But since the lawsuit was filed, it was only a matter of time before Netflix tried to have it tossed.
But lawyers for Netflix argue the phrase is common and simply “a reference to the book’s narrative device”.
It also dismissed claims by Chooseco of similarities between the border of a game by fictional video game developer Tuckersoft and its own book covers. Netflix said there was “nothing distinctive” about the publisher’s borders and the designs were in any case “markedly different”.
In a filing last week, the online broadcaster said: “No amount of further amendment will change Bandersnatch’s actual uses of the phrase ‘Choose Your Own Adventure’. Nor will amendment change the fictional ‘Tuckersoft’ company’s uses of the rounded color borders, let alone make them similar to Chooseco’s. Nor will amendment alter the First Amendment protection for such artistic uses, the protection for descriptive fair uses like the use of the challenged phrase, or the absence of any secondary meaning for the rounded color borders element of Chooseco’s trade dress.”
It's pretty much as we predicted. Netflix would like the court to acknowledge that pretty much everything Chooseco is complaining about that is included in Bandersnatch is not protectable, and that pretty much all the rest is protected as expression and art by the First Amendment. Frankly, it's hard to imagine how the court could argue differently, although there's always the chance the court might decided that these are issues best decided in the trial phase.
Which would be too bad, really. Lawsuits as plainly silly as this deserved to be tossed, not validated by full trials.
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Filed Under: bandersnatch, choose your own adventure, fair use, trademark
Companies: chooseco, netflix
Reader Comments
The First Word
““Journalism 101: If someone says ‘it's raining’ and another person says ‘it's dry’, it is not your job to quote them both — it is to look out the fucking window and find out which statement is true.”
Both sides in an argument may be equally valid for a given argument, but in a not-zero number of cases, that is not true. Reporting on and quoting Flat Earthers as if their theories hold any sense of scientific value or weight, for example, gives them a credibility that they do not deserve and helps to ever-so-slightly undermine the credibility of scientists who know what the hell they are talking about. Any journalist who refuses to call out Flat Eartherism as being a bullshit theory is a journalist who has not done their job.
There will always be bias in journalism; someone must decide what to publish, what to distill out of the mass of available data, and what facts to check. But the best journalism, even if it is biased, is a contribution to the truth. The best journalists know that showing a bias against lies and provable falsehoods when necessary is an acceptable bias to show — and frankly, I would rather have a journalist who challenges anti-vaxxers on what they say than a journalist who reports what anti-vaxxers say in “view from nowhere” style and gives them the kind of credibility that leads to children dying from wholly preventable diseases.
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Netflix should file a motion that concludes with:
"The judge carefully weighed the motion and chose...
To decide for the plaintiff, turn to page 78.
To decide for the defendant, turn to page 77."
But the whole motion only has 77 pages...
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Re:
The judge in a lawsuit involving the Da Vinci Code wrote the opinion in some type of code.
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Re: Re:
If this judge ends up writing his opinion in a choose your own adventure style, it should show once and for all that you can't steal a style and sue anyone who also creates things that seem similar.
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Re: Re: Re:
Obviously you can sue, and they did. Chooseco didn't invent the adventure path type story, and Netflix didn't invent the adventure path movie.
What you can't do is sue and not look stupid....
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Motivation
Chooseco's thinking is simple: Netflix has money and they want some of it.
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Don't you just love it when copyright law is enforced?
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Copyright Abuse
Well, I guess abuse is a form of enforcement…
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Re:
Chooseco probably won't.
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Re:
Except it's not in this case.
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What kind Of writing is this?
Is this “journalism”? If you describe a situation which is (as of yet) unresolved, and then assert that only one resolution makes sense, and the other has no merit at all, is this “journalism”?
Seeking out multiple witnesses, disclosing as much as possible about sources, or asking various sides for comment, all signal journalism. This discipline of verification is what separates journalism from other forms of communication such as propaganda, advertising, fiction, or entertainment.
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Re: What kind Of writing is this?
...ever heard of editorials?
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Re: What kind Of writing is this?
What you're describing is "the view from nowhere", which is terrible journalism.
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Re: Re: What kind Of writing is this?
Yes, considering both sides of an argument is such a waste of time when you are paid to just present one side.
Have you ever considered that you might find more readership if your articles were more interesting?
For example, “Party A says Party B is bad, but Party A says that about a lot of other parties. Party B says it’s not bad at all, but that’s not 100% true either. Actually, both sides have a point, but the more important point is how long it takes and how much money is spent to resolve this kind of disagreements. If resolution was faster and cheaper, most real justice would be dispensed.”
Maybe if you wrote about some actual insight, you would find more readers.
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Re: Re: Re: What kind Of Trolling?
Perhaps the AC's can kindly point us to their much better websites with super-cool stories they've written?
Nope, they just came by to make themselves look like ineffectual whiners like Blue Balls.
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Re: Re: Re: What kind Of writing is this?
Have you considered that not every argument has two sides with equally valid points?
Your "insightful" paragraph says exactly nothing and informs the reader of nothing.
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Re: Re: Re: What kind Of writing is this?
I thought all you Techdirt critics ever cared about was this place getting less readership, not more.
But good to see that this site you loathe with the intensity of a thousand suns has such office space in your head that you can't stop coming back.
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Re: Re: Re: What kind Of writing is this?
“Yes, considering both sides of an argument is such a waste of time when you are paid to just present one side”
You got a citation for that claim, like a real journalist would bro?
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Re: Re: Re: What kind Of writing is this?
Actually the "both sides" crap is bad journalism when one side is a clear bad actor, and the root of some of the extremist stuff that infects our media today.
For example - you have news reports about vaccines where people armed with the facts about what vaccines do and how they've helped people for decades on one side, and a vapid airhead armed with a single debunked study written by a fraudster on one side. What happens when you present both sides as equally valid? Frigging measles epidemics...
"Actually, both sides have a point"
In this case they don't, unless you wish to explain what's missing from the article.
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Re: Re: Re: Re: What kind Of writing is this?
This is just intended to be constructive criticism. Constructive. Not destructive.
Here’s the kind of journalism I like to read:
“You may have heard about A and B being conflicted about XYZ. Well, I talked to A, and I talked to B, and I listened to both sides of this conflict, which sounds like this: ... ... ... After listening carefully, here’s the view that I think is most constructive and meaningful: ....
Good journalism is like story telling - it gives people new information, it poses interesting questions, and reveals things that may not be obvious on the surface. Ultimately, like every story, it leaves the ultimate determination to the reader. Done well, it gets a point across by getting the reader to “suspend disbelief” and instead provokes interesting thought and novel new views that they (the readers) may not have previously considered. In some ways, good journalism is like a good journal about an interesting journey, it describes the scenery, the background, the events and the perspective. It is compelling and provocative and leaves the reader feeling more educated and engaged with an interesting topic.
It does not say “I am RIGHT and they are WRONG and there is ONLY ONE VIEW. That’s pretty much the opposite of journalism.
I say this totally with the spirit of trying to contribute to the success of the writers here. Really.
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Re: Re: Re: Re: Re: What kind Of writing is this?
And Shiva Ayyadurai still didn't invent email, Hamilton.
Isn't there a Paul Hansmeier appeal fund you need to be working on?
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“Journalism 101: If someone says ‘it's raining’ and another person says ‘it's dry’, it is not your job to quote them both — it is to look out the fucking window and find out which statement is true.”
Both sides in an argument may be equally valid for a given argument, but in a not-zero number of cases, that is not true. Reporting on and quoting Flat Earthers as if their theories hold any sense of scientific value or weight, for example, gives them a credibility that they do not deserve and helps to ever-so-slightly undermine the credibility of scientists who know what the hell they are talking about. Any journalist who refuses to call out Flat Eartherism as being a bullshit theory is a journalist who has not done their job.
There will always be bias in journalism; someone must decide what to publish, what to distill out of the mass of available data, and what facts to check. But the best journalism, even if it is biased, is a contribution to the truth. The best journalists know that showing a bias against lies and provable falsehoods when necessary is an acceptable bias to show — and frankly, I would rather have a journalist who challenges anti-vaxxers on what they say than a journalist who reports what anti-vaxxers say in “view from nowhere” style and gives them the kind of credibility that leads to children dying from wholly preventable diseases.
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Re: Re: Re: Re: Re: What kind Of writing is this?
Good story telling also has a definitive ending that is not open for the reader to choose ending A or ending B. Unless, ironically, you're reading a CYOA story.
If there are two legitimate sides to a story, you might have a point, but there are not two legitimate sides here. The law clearly states Chooseco is wrong and Netflix is right. Saying Chooseco could be right is a denial of reality and antithetical to good journalism.
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Re: Re: Re: Re: Re: What kind Of writing is this?
"Here’s the kind of journalism I like to read"
Good for you. I would find that sort of journalism pandering if, as in this case, one side is objectively in the wrong. There's not always 2 genuine sides. If you have NASA on one side discussing their latest mission and someone on the other side talking about how it's all a conspiracy and they're just filming it on a soundstage, then it's not good science journalism to give them equal weight.
I understand your point on certain kind of issues. On others, trying to be neutral is actively damaging.
"Done well, it gets a point across by getting the reader to “suspend disbelief” and instead provokes interesting thought and novel new views that they (the readers) may not have previously considered"
I thought its point was to investigate and report facts, not write flowery creative narratives.
"it describes the scenery, the background, the events and the perspective"
This isn't some in depth think piece, it's the latest blog report on an ongoing case (previous articles are linked). Whatever you're trying to get, it doesn't apply to this article.
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Re: Re: Re: Re: What kind Of writing is this?
...and the same argument holds for, for instance:
Equal Rights For All Humans
vs.
<insert color, ethnicity and/or creed here> is obviously superior.
Equal voting rights.
vs.
Women/black people shouldn't be allowed the vote.
Any journalist presenting those two views as equally valid would, quite rightly, not be considered a very good journalist so much as a supporter for a cause which has neither moral nor scientific backing.
But I think we all know which particular sock puppet usually frequents TD and would be keen on this type of presentation being acceptable as "journalism".
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Re: Re: Re: Re: Re: What kind Of writing is this?
While I understand and agree that the view from nowhere approach is largely a bad idea, I also wonder about how to prevent going to extremes in the other direction. Do we want journalists to be the final arbiters of what is true and what isn't? What may be obvious to some may not be to others. While some things are as clear as the examples you and others have given, others are not. And how do you prevent a journalist's own biases from influencing which way he or she reports on a given thing in a non-view from nowhere approach?
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No, I want them to show me verifiable facts and let me make up my own damn mind about a given subject.
Any journalist will have biases; human nature dictates that. They cannot be prevented or avoided altogether — but they can be controlled through fact-checking, the editorial process, and a journalist’s willingness to examine their own biases.
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Re: Re: Re: Re: Re: Re: What kind Of writing is this?
"Do we want journalists to be the final arbiters of what is true and what isn't?"
Essentially that's part of the job of a journalist - reporting factually, and thus doing the digging to find out what the facts actually ARE.
Hence why good journalism is investigative journalism. And why actual sources and corroboration is so important.
When presenting a piece on NASA a journalist should investigate and present the facts - which will include calculations, pictures, live-witness reports, etc.
The same piece on a flat-earther may be carried out the same but the journalist will end up having to state that absolutely no verification could be found on any of the facts the flat-earther asserted.
The "view from nothing" is dangerous for a reason. Good journalism abides by many of the same tenets as good science.
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Re: Re: Re: What kind Of writing is this?
Sometimes there is only one side. Or do you deny that gravity pulls things down instead of pushing them up?
A journalist would look just as stupid giving equal weight to the idea that gravity works in reverse of how it actually does. Just as you do right now for proposing the law doesn't say what it actually does.
News is not always interesting to all people.
There is no disagreement. The law says Chooseco is wrong and stupid.
If you and Chooseco would stop doing stupid stuff, Mike would have more time to right about more interesting things, like quantum mechanics, where it would correct to give equal weight to viewpoint A and viewpoint B because they are both valid simultaneously.
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Re: Re: Re: Re: What kind Of writing is this?
Or do you deny that gravity pulls things down instead of pushing them up?
Of course it pushes them up. Otherwise everyone on the southern hemisphere would fall off the planet since they are below it.
;)
Sorry I couldnt help myself.
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Re: Re: Re: Re: Re: What kind Of writing is this?
...Fine sir, have your funny vote. :)
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Re: What kind Of writing is this?
lol. life is also a choose your own adventure. Try selecting a different option next time. I am sure all the other endings don't have you displaying an unhealthy obsession with Techdirt.
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Re: What kind Of writing is this?
Yes.
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Re: What kind Of writing is this?
Is this “journalism”?
It is! It's called opinion journalism, in which we look at the facts and details and give our opinion on it based on our own knowledge, experts we talk to and more. It is not stenography journalism, or the view from nowhere journalism. Those may (or may not) have their place, but they are not what we do.
If you describe a situation which is (as of yet) unresolved, and then assert that only one resolution makes sense, and the other has no merit at all, is this “journalism”?
Yes. Yes it is.
Seeking out multiple witnesses, disclosing as much as possible about sources, or asking various sides for comment, all signal journalism.
So does expressing our opinion, based on the facts and our own knowledge.
This discipline of verification is what separates journalism from other forms of communication such as propaganda, advertising, fiction, or entertainment.
You seem to be wholly unfamiliar with how journalism works.
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Re: Enquiring minds want to know
Hey bro. Did it hurt getting shut down so hard, we heard the echo from The Southern Hemisphere?
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