Digital Camera Review Taken Down By A Botched DMCA Notice That Makes Claims Of Trademark Infringement

from the IP:-it's-all-so-much-peanut-butter-and-chocolate,-apparently dept

We've seen the DMCA takedown process abused to stifle criticism or remove unflattering content from the web. Knowing that, the first reaction to reading about a website being forced to remove a product review after being hit by a DMCA notice is to assume some overzealous representative of the affected company is simply using copyright's powers for evil.

DigitalRev recently posted a review comparing GoPro's Hero 3 camera with Sony's HDR-AS15. Not long after that, a DMCA notice arrived from GoPro (or rather, its "brand representative"), demanding that the review be taken down. So far, so censorious. But the DMCA notice sent didn't describe any sort of copyright violation. Instead, it headed off into a completely different IP area.

The notice starts out like many others:

We are providing you this letter of notification pursuant to the Digital Millennium Copyright Act 17 USC??512(c) to make Softlayer.com aware of material on its network or system that infringes the exclusive copyrights of Woodman Labs, Inc d/b/a GoPro (“Company”). We hereby affirm that the undersigned is authorized to act on behalf of Company whose exclusive intellectual property rights we believe to be infringed as described herein.

Barring the extraneous question marks, this all looks perfectly normal. But the next paragraph reroutes the entire DMCA.

We have a good faith belief that the Internet site found at digitalrev.com infringes the rights of the Company by using the following trademarks of the Company:

“GOPRO” Registered: 3/3/2009 US Registration# 3032989

“HERO” Registered: 12/20/2005 US Registration# 3308141

At this point, the notice's issuer, Patrick Hayes (Brand Manager for Woodman Labs), is in uncharted territory. The Digital Millennium Copyright Act notice is for copyright violations only, as can readily be determined by name of the notice itself. Hayes reasserts his trademark violation claim a few paragraphs later, along with a sentence that briefly raises copyright again before returning to the misguided effort at hand.

As you may know, if this information is not removed after notice that complies with the DMCA, the Internet Service Provider may also be held liable for the copyright infringement.

I have a good faith belief that use of the trademark(s) described above in connection with the domain and URLs described above is not authorized by the trademark owner, and such use is not otherwise permissible under applicable law.

I represent that the information in this notification is true and correct and that I am authorized to act on behalf of the trademark owner.

Hayes really shouldn't be "representing" that any of this bizarre IP melange is "true and correct." Most of it isn't, starting with using a copyright-only takedown form to shutter a review over alleged trademark infringement. Then there's this: the trademarks mentioned are character marks for the name of the product itself -- "GoPro Hero" -- suggesting that DigitalRev is not allowed to use the name of the product when reviewing the product. This is not how trademark law works. At all.

Hang on, though. It gets a bit weirder from there.

As I mentioned earlier, the first reaction is that GoPro doesn't like DigitalRev's review and wants it removed before many more people can read it. (That was DigitalRev's first instinct as well, as detailed in its follow-up post on the subject.) Fortunately, DigitalRev screencapped the relevant part of the review.

There's nothing in that review that looks like it should trouble GoPro enough to overreact in this fashion. In fact, commenters on the site point out that DigitalRev's reviews of GoPro products usually range from "positive" to "overenthusiastic." So, if the review isn't the issue, what is?

Thankfully, another rep from GoPro responded quickly to clear up the confusion... by adding more confusion. The official statement, left at both Reddit and PetaPixel reads as follows:

Thanks for the heads up on this issue. The letter that was posted next to the review on DigitalRev was not sent in response to the review. Obviously, we welcome editorial reviews of our products. This letter was sent because DigitalRev is not an authorized reseller of GoPro products and they were using images and had incorrect branding and representation of our product in their online commerce store. As part of our program – we ask merchants who are selling our product to use authorized images. That is why DigitalRev was contacted. But – our letter did not clearly communicate this and that is something we will correct.

There are a few problems with this, but first and foremost is the fact that the URL specified in the takedown notice is the review's URL. Nothing involving DigitalRev's online store was mentioned in the letter and no offending URLs listed. Not only that, but this rep claims to have spotted offending 'images,' something the mentioned trademarks don't cover. A comment left at PetaPixel by GoPro's social media rep adds this to the conversation:

There are a few things that are muddling this situation at the moment. The notice was sent to digitalrev.com not because of the review, but because digitalreview.com is not an authorized reseller and are using our trademark and product images inappropriately. The notice is in regards to the sidebar, not the review itself, but we can see why it seemed like it as the url links to both.

We would never attempt to restrict anyone's freedom to share their opinion about us or our products, positive or negative.

Even if this rep is correct and Woodman Labs meant to target improper use of its trademarks, it missed with both the delivery system and the URL specified. A DMCA notice can't stop trademark infringement. Furthermore, while a hosting company can be held liable for contributory trademark infringement, it's usually a result of the host mishandling takedown notices (and some conflation of copyright and trademark by the presiding judge), rather than a foregone conclusion. Then again, if you want to hold a service provider liable for this sort of infringement, it helps to use the standard process -- directly contacting the site owner and asking him or her to remove the infringing items. Using a DMCA notice for alleged trademark infringement is just plain wrong, although various GoPro reps' insistence that the trademark infringement includes "images" most likely explains the existence of this half-copyright, half-trademark aberration.

However, the most probable explanation for this IP circus is probably contained in this blog post from last November, which details the author's brief altercation with Patrick Hayes and Woodman Labs over a parked domain containing the word "gopro." The letter he received accused him of "domain infringement," and while the tone of the letter was generally cordial, Patrick Hayes made the assumption that any registration of the term "gopro" could only be related to Woodman Labs' products.

GoPro does not authorize any of its resellers (or anyone else) to use “GoPro” or “HERO” in domain names. Your registration of goprodivemaster.com is unfortunately in direct violation of this policy. We understand that your intention is simply to sell and promote our products, but GoPro cannot risk misleading customers into believing that they are interacting directly with GoPro when they are engaging with your website or your organization. The use of our trademark terms in your business name may cause confusion, and is prohibited under international trademark law.

Even if the domain redirects to another site, this is not a permissible use of our brand terms.

Please understand: GoPro has spent years building its brand name—only the company itself is legally represented as “GoPro” or the manufacturer of the “HERO” line of cameras. We need you to kindly discontinue the use of our registered/trademarked name as soon as possible.

The author points out that his parked domain had nothing to do with GoPro or its cameras. He also points out that this issue will certainly surface again, considering the Professional Association of Underwater Instructors uses the term quite often in relation to its instructor development centers. Additionally, he did a little detective work and checked out the WHOIS information on the email address and found the domain was associated with MarkMonitor. So, it appears GoPro is outsourcing its IP protection to a company that seems to take a pray-and-spray approach to takedown notices.

Quite possibly it takes little more than having the word "gopro" appear in a URL (like the review above) to summon the bot-fury of MarkMonitor and Patrick Hayes, "Brand Manager." This explains the bizarre trademark claims and the incomprehensible takedown of a positive review. If this is indeed the case, GoPro is probably considering taking the job back in-house, seeing as its reputation is being damaged further with each retelling of this unfortunate saga.

UPDATE: GoPro's Twitter account claims that five other URLs were included in the takedown notice, but were scrubbed by DigitalRev prior to publishing. However, it has not posted the unedited version for verification.

Filed Under: cameras, copyright, dmca, reviews, trademark
Companies: gopro, markmonitor

News.com Picks Best Of Mobile World Congress, But Leaves You Wondering Which CBS Lawsuit Partner They Didn't Review

from the tainted dept

Mobile World Congress, the big trade show for mobile devices, just wrapped up. It's become sort of the go-to place for mobile device makers to announce their new products (even though two of the bigger Android developers, Samsung and HTC, decided to do their big announcements outside of MWC). For the tech press, it's the the "next big show" after CES. As you may remember, there was a bit of a kerfuffle as CNET's parent company, CBS broke down (with sledgehammers) that big wall between business and editorial by forcing CNET to take away the "Best of Show" award they had chosen to give Dish's latest DVR, all because CBS was suing Dish over the product. So, when I saw that CNET had awarded the Ubuntu Touch as "Best of Show" for MWC, all I could wonder was what products did CBS ban CNET from covering at MWC. Once tainted, it's difficult to trust their reviews ever again, which is a real shame.

Filed Under: best of, ces, cnet, journalism, mobile world congress, reviews, trust
Companies: cbs

A Merger Challenge Not Worth Rating: The DOJ's Misguided Suit Against A Paltry Software Merger

from the doj-strikes-again dept

The following is a guest post from David Balto, former Federal Trade Commission Policy Director. Mr. Balto represented SunGard Data Systems in the US v. SunGard case described in this post.

Antitrust merger enforcement is a unique area of the law. It requires an assessment of whether a merger carries the potential of significantly harming competition. Courts are not very good at predicting the future and justifiably are very reluctant to prevent or unwind an acquisition without strong evidence of likely anticompetitive effects. Appropriately the antitrust enforcers rarely turn to the courts to try to stop business conduct that is typically procompetitive.

This cautionary approach is particularly necessary in software and other high tech markets. Antitrust analysis works best in traditional products, such as industrial products, that have existed for years in which the characteristics of products and the dimensions of competition are well defined. But in software the products are rapidly evolving, demand is ever changing, and the nature of competition can change overnight. Today's so called dominant firm may find itself an afterthought as the market turns to a whole different set of solutions. Not surprisingly, in the past decade the two litigated challenges to high tech mergers, Oracle's acquisition of PeopleSoft and SunGard's acquisition of Comdisco, resulted in stunning defeats for the Department of Justice's Antitrust Division.

That is why many observers were puzzled when the Antitrust Division sued to unwind the merger between Bazaarvoice, a social software and data analytics company, and PowerReviews, a small provider of online reviews that had less than $12 million in total revenues at the time of the transaction. (No one can seem to recall anytime the Division has sued to block a merger of a firm with an amount as paltry as $12 million in revenue). The merger involves the exciting software for providing ratings for products on the Internet, a product that did not exist a few years ago. Although the Division seems to highlight some documents that seem to suggest potential anticompetitive effects, the wooden analysis of the complaint reflects a simple structural view that overlooks the many dimensions of competition and the dynamic nature of the market. Rather than fully probing the likely competitive effects and dynamism of the online retail industry, the Division describes markets, consumer choices, and entry conditions that do not reflect reality. As a result the complaint is plagued by internal inconsistencies and fails to recognize the true price constraints that mitigate the potential for any harm the DOJ predicts as a result of this transaction.

The DOJ Fails to Articulate a Proper Relevant Market

Antitrust analysis may sound daunting, but it is very straightforward. The lodestar in any antitrust case is to define the relevant market – that is to determine what are the products that effectively compete with one another. In a merger challenge, if the government does not properly define the relevant market then the case is over. Defining the market can be very challenging, especially in dynamic markets such as software. Not surprisingly, the government's defeats in challenges to software mergers have typically been because they did not define the relevant market properly.

The DOJ defines the relevant market as "product ratings and review platforms," or "PRR platforms," and explains that these platforms "collect and display consumer-generated product ratings and reviews online." It is axiomatic that defining a relevant market establishes the boundary between products that do compete and those that do not, and determines the firms or products that constrain the relevant firm’s exercise of market power. As the Ninth Circuit has opined, "A relevant market is identified by considering commodities reasonably interchangeable by consumers for the same purposes. Put another way, the relevant market includes all sellers or producers who have actual or potential ability to deprive each other of significant levels of business." As the literature makes clear, if a putative relevant market is too narrow, and does not account for competitive forces that serve as a real price constraint on the parties, then the analysis risks condemning perfectly legitimate and competitive behavior by imputing market power where it does not exist.

On this count in Bazaarvoice, the DOJ does not get to first base. The DOJ's alleged PRR platform market is too narrow and falls prey to the mischaracterization of market power risk embodied in the literature. PRR platforms are one of many social-technological tools that retailers and manufacturers use to communicate with end-user customers. Bazaarvoice and PowerReviews compete against numerous firms that strive to empower the consumer's voice through social media to "collect, organize, and display consumer-generated product ratings and reviews online." Manufacturers may use popular network-driven social media tools such as Facebook, Twitter, Google+ and Yelp or more nuanced social media tools such as YouTube, Pinterest, and LinkedIn to give the consumer a voice in online product reviews. Alternatively, manufacturers and retailers can include social media tools that are similar, but not identical, to consumer reviews such as question-and-answer, and community forums.

These alternative platforms constrain Bazaarvoice, PowerReviews, and other companies that provide third-party review and aggregating services. When a retailer or manufacturer considers purchasing services from these companies, they do not look only at these two options, but also at the available outlets for consumer review generation provided by the ever-increasing array of social media platforms.

In defining markets, the courts rely on a wide variety of evidence including econometric price studies, other pricing evidence, win/loss data, and testimony of customers. None of this is present in the DOJ complaint. Instead the DOJ relies largely on the defendant's documents, but this is a thin reed indeed. Many of these documents are outdated and ignore the realities inherent in this fast-moving industry. It is debatable whether these documents reflected the true nature of competition at the time they were created. It is certain, however, that these documents no longer reflect the current state of competition. For instance, the DOJ twice references an April 2011 email in which a Bazaarvoice executive characterized the nature of the industry and opined that alternatives to Bazaarvoice are "scarce" and "low-quality." In the intensely rapid changing world of the Internet, documents from 2011 are about as relevant as a floppy disk. Instead of 1) demonstrating that this was in-fact true in 2011, and 2) reestablishing that this description remains accurate, the DOJ's complaint merely assumes that both are the case. However, this description does not align with today's online retail industry or its intersection with social media. These are industries highlighted by dynamism, and it would be incorrect to believe that the relationships between PRR platforms and other social media outlets for consumer reviews have remained stagnant.

Even If One Accepts the DOJ's Relevant Product Market, the DOJ Fails to Recognize the Dynamic Nature of Competition

As explained above, a product market of PRR platforms is not a proper relevant market for antitrust purposes. Even assuming arguendo that PRR platforms constitute a proper market, however, the DOJ's complaint fails to discuss adequately the nature of competition within these parameters.

Two fatal flaws plague the DOJ's analysis. First, the DOJ fails to offer any explanation for portraying the PRR platform market as consisting of just two meaningful competitors and numerous fringe competitors who offer no real constraint. The DOJ attempts to justify this portrayal by analyzing the nature of competition between Bazaarvoice and PowerReviews within the "Internet Retailer 500," but it is unclear why the government focuses so closely on this tiny market segment and it is even less clear whether an impact solely on that segment would violate the law. The DOJ even concedes that the PRR platform industry "can range from simple software solutions a company has developed with internal resources to sophisticated commercial platforms offering a combination of software, moderation services, and data analytics tools." However, despite this wide range of styles and services, the complaint analyzes only a small segment of the market and suggests that these large sophisticated companies have only two effective alternatives.

The Division has made this mistake in the past, and it did not end well. In Oracle the DOJ "failed to prove that there are a significant number of customers (the 'node') who regard Oracle and PeopleSoft as their first and second choices." Instead, the DOJ tried to make the unilateral effects argument with the unpersuasive facts that it had. Judge Walker admonished the DOJ, stating the "Plaintiffs' attempt to show localized competition based upon customer and expert testimony was flawed and unreliable. Moreover, plaintiffs' evidence was devoid of any thorough econometric analysis such as diversion ratios showing recapture effects." (A "diversion ratio" shows how much of one competitor's business will shift to another competitor if there is a price increase.)

The complaint against Bazaarvoice is equally flawed. The diversion ratios will simply not tell a story wherein a sizeable portion of all participants in the DOJ's (already flawed) market perceive only Bazaarvoice and PowerReviews as next-best options. If the evidence of diversion ratios were available, the DOJ would have presented it already. In fact, this is a consummated merger – the real-life data should show this effect if it is true. Instead, the data likely tells a story of widespread, dissimilar, and largely unpredictable cross-elasticity of demand. It is probably the case that no "node" in the PRR platform industry exists because the dynamic nature and subjective needs of clients dictate that there is no significant captive set of consumers choosing only between Bazaarvoice and PowerReviews.

Second, the DOJ completely ignores the concept of self-help in the social media consumer reviews industry. At its core, the products supplied by Bazaarvoice and PowerReviews are based on simple technology. These companies create software that appears on a retailer's website and enables consumers to provide first-hand product reviews. The companies also provide differing analytic and syndication services, both of which are a function of nothing more than intelligent use of data. There is nothing stopping retailers and/or manufacturers from creating the same service and extracting value from the data. Unsurprisingly, companies often perform some or all of these tasks themselves. Amazon stands out as a leader in providing consumer review platforms and uses the data to drive marketing and sale decisions. Zappos, the online shoe and apparel company from Henderson, Nevada provides its own consumer review platform on its website, and uses this information not only to improve sales and marketing, but to provide an added level of consumer care.

Like the question of the consumer "node," the DOJ has also failed to account for internal solutions as a price constraint. Once again the DOJ is forgetting an important lesson from a past defeat. In SunGard, the DOJ tried to block the merger of two firms that provided computer disaster recovery services, which sounded like tremendously sophisticated and complex services. But the court found that self-help ("internal hotsite solutions") was a perfectly adequate option for many customers. The DOJ had portrayed the notion of internal hot sites as expensive and difficult to create, and suggested that not enough customers would turn to internal solutions to prevent the merging parties from raising prices. Judge Huvelle disagreed, and pointed out that, not only did internal solutions exist in some capacity, but that the incentive to create internal solutions would increase alongside any increase in price. Furthermore, the evidence demonstrated that customers had varying needs, and "any generalizations regarding customer behavior cannot be arrived at with any certainty, since it depends on a host of factors, including the type of equipment a customer must duplicate, the particular circumstances and needs of the customer, and in some cases, the size of the customer's operations."

The same can be said for customers of social media consumer review -- any attempt to predict the future needs and behaviors of customers is nothing more than generalization and speculation based upon incomplete data, an uncertain technological future, and dynamic and varied customer needs.

The DOJ Fails to Account Adequately for Entry and Expansion, Both of Which are Likely

The DOJ asserts that anticompetitive harm resulting from this transaction will not be corrected by additional competitors entering the market or existing participants expanding. The rationale for this assertion lies primarily in the DOJ's contention that Bazaarvoice's syndication network creates an insurmountable entry barrier. This statement ignores the fact that PowerReviews entered the market and competed effectively without offering a syndication product on par with Bazaarvoice's. Furthermore, the DOJ makes no attempt to quantify the number of Bazaarvoice customers that take advantage of the syndication offering. In fact, many manufacturers and retailers choose not to utilize this service, instead preferring to outsource to another vendor or perform the analytics in-house.

Notwithstanding these factual oversights, the assertion that Bazaarvoice's syndication network is a barrier to entry fails. The aggregation of data through the creation of consumer reviews is a profitable endeavor, but it is also an easily repeated endeavor. Bazaarvoice's reviews and sophisticated analysis may make it a better competitor but it does nothing to cement Bazaarvoice as an enduring competitor in the face of an improved service. Allegations of network effects as barriers to entry are made far too lazily, and the DOJ would have the trier of fact believe that a piece of data can only be captured once, or is a zero-sum game. This is just not the case. There is competition for data just as there is competition for any other product. Finally, as the value of data continues to increase, retailers and manufacturers will have less incentive to continue outsourcing this portion of the business to Bazaarvoice.

Unsurprisingly, entry is already occurring in this alleged market. Reevoo and Yotpo are new entrants looking to disrupt competition, while Amazon and Google are established market participants looking to grow their profits at the expense of companies like Bazaarvoice. The DOJ's entire theory of harm is premised on a presumption of stagnancy that runs contrary to the nature of the high-tech and electronic commerce industries.

Conclusion

Antitrust enforcement in high tech markets poses special challenges -- to recognize the dynamic fast paced nature of competition, the fluidity of product markets, and the opportunities for new forms of rivalry. Unfortunately, the complaint in the Bazaarvoice case takes a static approach hinged to a few outdated documents. Without more it is unlikely a court will take the draconian step of unwinding this merger.

Filed Under: antitrust, doj, market definition, monopolies, reviews, software
Companies: amazon, bazaarvoice, google, powerreviews

What The Tesla / NY Times Fight Teaches Us About The Media

from the the-world-is-changing dept

For media watchers, the very public argument this week between Tesla and the NY Times has been quite fascinating. In case you happened to not be obsessively following each back and forth (what, you have lives?!?), it all began with a NY Times' less than enthusiastic review of the experience of trying to drive a Tesla S (the company's flagship electric car sedan) between a pair of Tesla's new "superchargers." You can read the full review yourself, but the short version is that it did not get the mileage expected, and at one point a flatbed truck needed to come pick up the totally dead car. I will admit that I'm impressed by the Tesla car in general, and most of the reviews have made it out to be about as close to a perfect car as you can imagine (which is pretty impressive considering that it's the first year of the car's existence and it's the first "mass" produced Tesla vehicle). But this review was less than thrilled, since the whole point was to test out the ability to drive between these "superchargers."

Upon publication, Tesla's famous CEO, Elon Musk, began tweeting up a storm about how the article was "fake" and that he had the vehicle logs to prove it. The author of the review, John Broder, responded to many of the tweeted charges, arguing that Musk was misrepresenting things -- leading many watchers to suggest that Musk was making a big mistake in attacking the NY Times.

Then, Musk published a blog post with a graphical representation of the log data they had, in which he argues that Broder lied and even purposely tried to run the car out of juice in order to write a negative story. Musk claims that after their dispute with Top Gear, they now keep logs on any media test drives (though it's unclear if they tell reporters that before giving them the cars). And, suddenly, a lot of people flipped sides, arguing that the data won and clearly the NY Times and Broder had some answering to do. After all, there were charts like this one: Except... then some people started to look more closely at the data and realize that perhaps Broder's story wasn't so crazy and Musk made a number of assumptions that aren't necessarily backed up by the data. For example, Musk insists that Broder claimed he turned down the climate control to low to conserve energy at 182 miles, and points to the fact that at 182 miles, Broder actually increased the temperature over 72 degrees. However, as Rebecca Greenfield points out, in her piece (linked above), it really looks like Musk may have simply assumed incorrectly that the point where this happened was 182 miles, and at about 250 miles it's quite clear that Broder does turn the climate control way down and keep it that way for a while (Greenfield added the purple box below). Then Broder chimed back in as well explaining away most of the accusations, including the charge by Musk that Broder drove the car around trying to run it out of energy:

When he first reached our Milford, Connecticut Supercharger, having driven the car hard and after taking an unplanned detour through downtown Manhattan to give his brother a ride, the display said "0 miles remaining." Instead of plugging in the car, he drove in circles for over half a mile in a tiny, 100-space parking lot. When the Model S valiantly refused to die, he eventually plugged it in.

Except, Broder notes, the "unplanned detour through downtown Manhattan" was not "unplanned" and had been communicated clearly to Tesla beforehand, did not actually go into "downtown" Manhattan, was partially recommended by Tesla employees who thought that the "regenerative braking" might help increase the range and only added two total miles to the trip length. Furthermore, as for the charge of driving around in circles in a parking lot?

Mr. Straubel said Tesla did not store data on exact locations where their cars were driven because of privacy concerns, although Tesla seemed to know that I had driven six-tenths of a mile “in a tiny 100-space parking lot.” While Mr. Musk has accused me of doing this to drain the battery, I was in fact driving around the Milford service plaza on Interstate 95, in the dark, trying to find the unlighted and poorly marked Tesla Supercharger.

Ouch.

In the end this is a fascinating story on many different levels. Dan Frommer makes an excellent point that "everyone's a media company now," noting that it's possible for companies to speak out on their own behalf if they disagree with a story. That used to be a lot harder. He compares that to the Quirky / OXO story we recently covered as well.

But, of course, if you're going to rebut charges made in a newspaper review, the information had better hold up, and it's not clear that it does here. Even worse, it really seems like Musk is making a much bigger deal of this than ever needed to be made. Sure, the initial review wasn't great, but it really didn't strike me as that bad. It basically said that if you try to drive it too far, or if you're unable to charge it enough, you might run out of juice. You know what? Same thing is true of a gas-powered car as well. But Musk has called much more attention to the story in a manner that doesn't necessarily lead to Tesla coming out on top. Carl Malmud's summary seems instructive:

Musk was offended that a reporter didn't operate the hardware properly. Blame the manual, tech support, PR, but not the user.

Musk is obviously quite passionate about the companies he runs and their products. And that's something that's actually quite appealing. Having followed his work for a while, you know that he really is striving to build "insanely great" products. So I can absolutely understand how his first emotional reaction is to lash out at someone who wrote a less than kind review (I've been there myself too many times). But, in the end, it seems like there would have been much better ways to handle this. I'm still a huge fan of the Tesla, and still dream of one day actually getting one, but I'd say that Musk's response probably made me more skeptical of the company than Broder's original article ever did.

When "everyone is the media," amazing and powerful things can happen. And, certainly, the ability to correct the record against questionable stories is something that really changes the game. But, at the same time, everyone is now a fact checker, and that makes for an interesting dynamic for both traditional media companies and those who wade in to respond to them.

Filed Under: data, elon musk, john broder, journalism, media, reporting, reviews, tesla
Companies: ny times, tesla

Redditor Points Out The Flaws In SimCity's Online-Only DRM, Gets Banned By EA For His Troubles [UPDATED]

from the well,-that's-ONE-way-to-handle-a-legitimate-complaint dept

UPDATE:

According to EA's representatives, this ban was the unfortunate result of a gitch in their system which banned several members who had opted out of receiving email from EA. Full response posted below:

Hi Puppier,

I made a post in reply on both imgur and your reddit post, but I just wanted you to know that we've lifted your ban on AHQ. As you know, the system is sending out a lot of emails and it looks like you opted out of receiving mails from us, which for some reason is banning users. There's a few posts on it, for example here http://answers.ea.com/t5/Technical-Problems/Problem-with-Answer-HQ-banned-because-I-tried-to-stop-getting/m-p/419214/highlight/true#M1430. It's not the biggest thread, but it's the first I could get to.

The team is working to fix the bug, but in the interim I actually have one member sitting scanning our logs for anyone that opts out, so we can unban them as quickly as possible.

Apologies again - as you mentioned. There's a lot of similar feedback to yours that hasn't been removed from the forums and the authors banned.

Feel free to give me a shout with any other feedback you have. I'll personally make sure it gets to the right people to make up for the annoyance.

Cheers,
Chris.

 

Electronic Arts makes some very popular games and some very respected games, but for the past few years, it's been finding itself at the top of Consumerist's annual "Worst Company in America" list. And for good reason.

A few weeks back, we discussed EA's upcoming SimCity game, which is going to be crippled by an always-on DRM scheme masquerading as online multiplayer. Some unsuspecting SimCity developers fired up an AMA (Ask Me Anything), only to find themselves trying in vain to defend a system that maintains your save state online, rather than locally. In addition to "stopping" piracy, this "feature" helps "extend gameplay" by forcing you to redo your moves should sunspots or whatever occur. The Redditors, needless to say, ate them alive and sent their remains back with a message for their bosses: drop the DRM or you won't be seeing our money.

EA, of course, cares not for little things like angry potential customers or, for that matter, being a company people trust and respect. For every step forward, it has taken giant leaps backwards. Just recently, it held a closed beta to do some last-minute bug testing on the new SimCity. All well and good, except that it threatened to ban users from all EA games should they fail to report a bug.

“It is understood and agreed that, as part of your participation in the Beta Program, it is your responsibility to report all known bugs, abuse of ‘bugs’, ‘undocumented features’ or other defects and problems related to the Game and Beta Software to EA as soon as they are found (‘Bugs’). If you know about a Bug or have heard about a Bug and fail to report the Bug to EA, we reserve the right to treat you no differently from someone who abuses the Bug. You acknowledge that EA reserve the right to lock anyone caught abusing a Bug out of all EA products.”

This went over about as well as any banhammer reliant on proving a negative -- the uproar began moments thereafter, leading EA to walk back this threat within 24 hours. EA released this incredulous, self-serving statement that basically said it was shocked (shocked!) that anyone would suggest it would perma-ban its potential customers.

“We have never taken away access to a player’s games for not reporting a bug, and quite simply it’s not something we would ever do… The clause in the EA Beta Agreement for the SimCity beta was intended to prohibit players from using known exploits to their advantage. However, the language as included is too broad. We are now updating the Beta Agreement to remove this point.”

Uh-huh. Nothing you would ever do now that you've been caught.

But EA's not done wielding the banhammer, as one Redditor attempting to login to the beta discovered over the weekend. After waiting over three hours for the software to authenticate, he posted a very valid, very tame and very constructive bit of criticism to their forums. (Original post via Google cache here.)

Back during the Steam Summer Sale, Ubisoft's always-online DRM servers encounter countless errors the inhibited people from playing the game (Story). This is one of several issues game publishers have suffered after having always-online DRM (other than the general player irritation). Although it is annoying that we have to have multiplayer and be online for a single-player game, technical issues also arise, because servers will, inevitably go down at some point.

Frankly, I wouldn't mind being always online if it weren't for all the technical complications, I have purchased the game and as long as I can play it, I'm good. But that is not the case. Instead we wait through countless errors and server delays in order to play the game. If these kind of issues exist during a closed beta, imagine the delays during the actual launch and the days after. Blizzard suffered the same fate after the launch of a Diablo 3 patch (Story).

The repercussions of this? Bad ratings. Although Diablo 3 received generally favorable critic scores, the players rated it at only 3.8/10 (Source). Although you will of course, have buyers, there is always someone dedicated enough to play a game, no matter the costs, bad ratings will turn away even the most dedicated players. And if the issues seen in the closed Beta servers (I've been waiting 45 minutes to log in already and others have been waiting much longer) remain during the official launch, the ratings will undoubtedly suffer. Although I have always been a huge SimCity fan, I am beginning to question whether I will buy this game, and as a result these ratings will decide whether myself and many others will spend our money on SimCity.

As I said, I would be able to tolerate SimCity's always-online DRM if it worked. But from the way it looks right now, it doesn't. If you are not willing to pour enough money into getting large amounts of log in and authentication servers, please remove the always online or add a way for us to play offline in only-offline cities. Other wise, you will turn away large groups of buyers and also large amounts of money.

Although you are trying to prevent piracy, which is something I am firmly am against (piracy), you have caught normal and legal players in the crossfire. The easiest (and best) way to prevent piracy is make a better game. If you make the game accessible and easier to play, you will attract more people into purchasing it. If you don't, you will turn away players and give people "reasons" to pirate your games. I am willing to spend money on SimCity if it is good, many others feel the same way. Don't ruin our dedication by putting us in the crossfire of your "war on piracy".

If you get your authentications servers not simply adequate, but also above and beyond what is necessary, more and more players will buy and enjoy your game. However you must also weigh the benefits. Even if you make a small amount of extra money by instituting an always-online policy, you will have to keep spending money to keep these authentication servers up. This may, in the long run, negate the amount of money you gained from the policy. So make sure you are ready to have servers and keep servers, otherwise you will be in for a lot of trouble.

Thank you,
Puppier

To most people, this would seem like a valid complaint that makes several good points. One, sacrificing your customer base on the altar of piracy prevention seldom makes sense, especially considering the pirated version will be free of all the issues plaguing the paying players. Two, if you can't balance server loads on a closed beta, how on earth are you planning to handle launch day? Considering SimCity will be online only, you'd think EA would have its server issues at a minimum. Paying customers aren't going to be very happy with a $50-60 piece of software that does nothing more than attempt to authenticate for hours on end. All in all, a thoughtful post that highlights what exactly is wrong with the DRM EA has built into the software.

Here's EA's reply. No email. No answer in the forums. Just this.
 

(In case you can't read the fine print, it says "We're sorry, but you have been banned from using this site.")

If EA's wondering how it could have outmaneuvered Bank of America in a race to the bottom, reputation-wise, it needs look no further than this. When an entertainment company is chosen by 64% of 250,000 voters as being worse than an entity that doubled its customers' interest rates for no apparent reason and allegedly cost taxpayers more than $1 billion when it sold toxic mortgages to Fannie Mae and Freddie Mac, there's a serious flaw in that company's relationship with its customers.

Callous actions like this only serve to further cement EA's reputation as one of the worst companies in America. Legitimate complaints should never result in banning. Even if EA isn't interested in hearing the downside of its "always-on" DRM, it should at least have the broad shoulders to take the criticism without behaving like thin-skinned thug.

Filed Under: bans, beta, criticism, drm, reviews, simcity, video games
Companies: ea

CNET: You Can't Trust Our Reviews, But You Can Trust Our News! Honestly!

from the uh,-yeah dept

The fallout from CBS's ridiculously short-sighted interference with CNET's editorial process, concerning staffers awarding Dish's new DVR "best of show" at CES, continues to cause problems. Whle one of CNET's best reporters quit in protest, and Dish has turned the whole thing into a marketing opportunity, now any news article about any company that CBS is in a legal fight with has become suspect.

Note this recent article about the updated Aereo app. While it kicks off by saying that Aereo "just became a much more potent alternative to traditional cable TV" stuck right smack in the middle of the article is a big "disclosure":

Disclosure: CBS, the parent corporation of CNET, is currently in active litigation with Aereo as to the legality of its service. As a result of that conflict of interest, CNET cannot review that service going forward.

In other words, "HEY EVERY BODY, YOU CAN'T TRUST US TO REPORT FAIRLY ON THIS BECAUSE OUR CORPORATE OVERLORDS INTERFERE WITH EDITORIAL!" The whole thing is a joke. As Rob Pegoraro correctly noted, CNET's claims that "news" reporting won't be impacted because these bans just apply to "reviews" is simply wrong, wrong, wrong.

To say that there’s “actual news” and then reviews devoid of news value shows a basic misunderstanding of how journalism works.

Hard-news stories (like search-engine results!) are never entirely objective; people made value judgments in assigning them, choosing sources to quote, and giving those pieces their spot on the page or in the paper. Reviews are never entirely subjective and ought to cite objective defects such as slow performance, poor battery life, privacy risks or missing features.

And in the evolving and sometimes fumbling tech industry, assessing the hardware, software and services it serves up is an especially important part of the work of journalism. We need to suffer through these products ourselves–unless you’d prefer that we waited to see you find their problems, then reported the controversy.

Readers, in turn, don’t view news and reviews as distinct entities. If they start seeing one part of a site’s work subject to a corporate overlord’s remote control, they will read everything there skeptically. If they stick around at all.

Indeed. All that disclaimer does is remind people that CNET's coverage of any such topic is not to be trusted at all.

Update: And... things are apparently going downhill. According to reports and internal notes, reporters at CNET are pissed off and morale is falling. There was a meeting where some believed CBS was going to go back on its position, but the company did not. Reporters have been pushing back, but to no avail. The Romenesko link here includes an email from CNET reporter Declan McCullagh ticking off example after example of publications associated with other companies suing Aereo giving perfectly normal reviews of the product:

The Wall Street Journal’s Katie Boehret (who reviews products along with Walt Mossberg, as I’m sure you know) reviewed Aereo three months after the litigation began. Boehret concluded: “It has a thoughtful, clean user interface that works well on the iPad, where I tested it most.. If you’re a fan of TV and want a better way to watch it on the go, Aereo is a pleasure.” The WSJ is owned by News Corp., which is in active litigation with Aereo.

ABCNews.com published a review of Aereo this month. It said: “I’ve been trying out Aereo since September to record and watch all sorts of programs on Aereo — both highbrow shows such as ‘Downton Abbey’ and guilty-pleasure ones such as ‘Revenge…’ It makes cutting cable service tempting.” ABC News is owned by Walt Disney, which is in active litigation with Aereo.

The Chicago Tribune published a syndicated review of streaming services including Aereo, which said “the most exciting development might be a scrappy start-up called Aereo that lets you watch TV on any Web-connected device with a screen via a network of miniaturized antennas.” The newspaper is owned by the Tribune Company, which is in active litigation with Aereo.

It’s true that CBS has the right to set the editorial policies that CNET journalists must abide by. And it’s also true that this policy is prominently disclosed to our readers. But I’m not aware of other media companies that have enacted a similar policy.

This has the makings of quite the business school and journalism school case study...

Filed Under: cnet, editorial integrity, reviews
Companies: aereo, cbs, cnet, dish

CBS's Censorship Of CNET May Undermine A Different CBS Lawsuit

from the didn't-think-about-that,-now-did-you? dept

Last week, after the news came out that CBS had censored its subsidiary CNET, barring reporters there from reviewing Dish products (or any product of any company in litigation with CBS) or from awarding them the "best of CES" award that CNET reporters had already voted on, we wrote a post pointing out how this was dumb for a variety of reasons, mainly focused on the harm it did to CNET's credibility. Indeed, as noted, one of CNET's star reporters, Greg Sandoval, has already resigned. However, it turns out that it may have been even more stupid than originally suspected. In fact, it may undermine another important lawsuit filed by CBS.

We've written in the past a few times about Alki David's crusade against CBS, in which he sued the company, pushing a conspiracy theory about how CBS only went after his company FilmOn (the name of which was later changed, for pure publicity reasons, to AereoKiller) because it wanted to be the only one to profit from infringement. The argument was that because CNET was owned by CBS, and because CNET site Download.com had offered up software like Limewire, combined with CNET reviewers reviewing Limewire, it meant that CBS itself was guilty of infringement.

This was a silly legal theory, built more out of spite to annoy CBS. Unfortunately, since it was first brought up, we've seen many people passing it along (especially one particular YouTube video that calls out this "conspiracy theory" as fact, without any basis). However, knowing how independent CNET was from CBS, it always seemed like a particularly silly accusation, and the first version of the lawsuit didn't go very far, though a refiled version has done slightly better.

However, now that CBS has decided to rush headlong through that wall of editorial independence it may have totally undermined its own case. That's because, in responding to the case, CBS, in part, made the argument that a finding against it might chill free speech by encroaching on the editorial independence of CNET.

Except... in making this latest move, CBS is now making the argument that it has no problem butting in on CNET's editorial independence (or any CBS Interactive property), which may take away a key argument it has against secondary liability for any articles about infringement. Knowing the way Alki David has acted in the past, I'd be surprised if he didn't rush to use this in the ongoing case.

Filed Under: alki david, cbs, copyright, editorial integrity, greg sandoval, journalistic indpedendence, reviews
Companies: cbs, cnet, dish

Virginia Supreme Court Says Court Was Wrong To Force Woman To Change Yelp Review

from the good-move dept

We've seen a bunch of stories over the years about local businesses upset about critical online reviews on sites like Yelp and Angie's List. Sometimes these business owners go to court, but rarely get very far. However, in a hearing last month, a court in Virginia issued a preliminary injunction, telling Jane Perez that she needed to make two changes to reviews she posted on those two sites of DC contractor Christopher Dietz. Dietz had sued Perez for $750,000 over the negative reviews, and arguing that Yelp and Angie's List should be held responsible as well, despite their clear protections under Section 230.

The preliminary injunction made her change some claims about possible "stolen" jewelry as well as her characterization of a small claims lawsuit that Dietz had filed against her for non-payment (that case was dismissed due to procedural failures, though she described it as a win for her on summary judgment), but did allow the rest of the posts to remain. This was a partial victory for Perez, since Dietz wanted the entire posts removed, but it still raised some significant questions. Public Citizen and the ACLU asked the court to review, noting that this was classic prior restraint:

Thus, even in jurisdictions that allow an injunction against the repetition of a libel that has been found false and defamatory after a full trial, or in which that issue remains open, injunctions may not issue against speech that has not been finally determined to be false and defamatory. For this reason, courts have rejected attempts to obtain preliminary injunctive relief against Internet speech.

Basically, a court cannot issue an injunction on speech that might be defamatory. It needs to wait until it's actually been proven to be defamatory. As the filing notes, in this case, the court didn't even find that Dietz had shown a "likelihood of success" let alone determined that the statements were defamatory.

Thankfully, the Virginia Supreme Court quickly recognized the error and has vacated the injunction allowing the original text to stay in place while any lawsuit continues:

Upon further consideration whereof, the Court also finds that the preliminary injunction was not justified and that the respondents have an adequate remedy at law.

Good news for free speech, though it's unfortunate that the lower court didn't get it right the first time. Of course, as always, this kind of thing makes you wonder what good it could have possibly done Dietz to file this lawsuit. Whether or not the original allegations were true, now he's made it clear that he's willing to sue over reviews as well. It seems like most people might see that and decide to hire a contractor who not only has good reviews, but doesn't have a history of suing his customers over their online reviews.

Filed Under: christopher dietz, defamation, free speech, jane perez, preliminary injunction, reviews, viriginia
Companies: angie's list, yelp

Latest Company To Discover The Streisand Effect: Casey Movers

from the how-not-to-internet dept

Earlier this year, I was at a conference where there was an entire presentation on The Streisand Effect. Considering I first came up with the term and have chronicled it over the years (and had already been asked to speak on a different topic at the conference), I offered to help out with that session -- and got back no response. I went to the session to watch, and it was a really fun session, which didn't need any help from me at all. It was done by Conrad Saam, who works for Urban Spoon (and previously Avvo) and had a ton of great examples of the Streisand Effect and the impact on online reputation management. One element of online reputation management that he'd discussed, which I hadn't paid as much attention to, was the basics on how to deal with online reviews -- with a specific focus on Yelp. There were some dos and donts... and two key things not to do were (1) threaten people who write negative reviews and (2) post fake positive reviews.

Phil Buckley has a story of a Massachusetts-based moving company, called Casey Movers, which appears to have violated both of those rules, starting with a legal threat to Buckley's wife concerning a negative review she had written about Casey Movers 18 months ago, after her parents had a very bad experience with the company. It first took the company over a year to even notice the review and then post a weak defense of its practices. It didn't respond to any of the specific complaints about unprofessional behavior or broken promises. It only focused on the amount that the company had been willing to pay for damages, and gave a somewhat "technical" response about how this was what the "insurance option" she chose provided -- and even could be read as scolding her for not choosing the more expensive insurance option.

And yet... five months later (18 months after the original complaint went up), the same guy who wrote that bizarre defense sends a threat letter saying that the company is prepared to sue for libel if the review isn't removed: Of course, rather than having the intended effect, it just made Buckley furious (and quite reasonably so). Buckley had no interest in removing the review, but rather than just telling Casey Movers to pound sand, he started investigating. He found a variety of other negative reviews... but also a large number of reviews that had significant circumstantial evidence that the company was likely posting fake positive reviews (or had hired a company to do so). It's fun to watch the investigation progress, so it's worth reading the whole thing, but here's a snippet:

Someone decided enough was enough and decided to get some good reviews at CitySearch where they now have a majority of good reviews, except there’s a problem, they’re not real reviews. You may ask how I can say that with so much confidence? Go look at them yourself, one after another… notice how most names are generic or don’t have a human photo? Yes that’s level 1 of suspicious reviews. Start looking at the reviews the “people” have left. It’s quite a coincidence that so many people who have used a Boston moving company have also loved a sprinkler repair guy in Anaheim, California and Fun Hawaii Travel out of Honolulu.

They also have a flurry of activity in August of 2012 – Aug 1, 2, 6, 7, 9, 11, 12, 14. That seems a bit sketchy as well.

His investigation also turned up that the company had been posting images of positive review letters that some customers had signed, but in doing so, revealed all their private info. Buckley contacted a few who seemed surprised and said that they had not provided permission to reveal their private info.

For a while, Casey Movers and the main representative of the company involved in all of this, Matthew Overstreet, basically ignored Buckley. But as his story kept getting more attention, Overstreet finally reached out to Buckley -- and again just kept focusing on the "insurance coverage," a relatively minor issue (made even more minor following the ridiculous threat of a libel lawsuit). Eventually, Overstreet called Buckley on Wednesday night and seemed to indicate that there wasn't any interest in actually suing, though he refused to promise not to sue Buckley's wife.

Either way, the whole story is yet another fun one to include in the long list of companies who get on the wrong side of the Streisand Effect. Going beyond that, it really shows how a bogus legal threat can lead to not just backlash and attention, but also much deeper investigations into whoever originated the threat -- and that might turn up other questionable activity, such as posting likely fake positive reviews to try to counter the real negative reviews. Oops.

Filed Under: fake reviewers, matthew overstreet, phil buckley, reviews, streisand effect, threats
Companies: casey movers, yelp

UK Newspaper Licencing Agency Says Musicians Need To Pay To Quote Reviews

from the live-by-copyright,-die-by-copyright dept

I wonder how copyright maximalist musicians feel about this particular story. Techdirt reader glassneedles alerts us to an offline (!?!) news article in the publication Private Eye, about how the UK's Newspaper Licensing Agency (NLA) has declared that musicians who quote positive reviews from newspapers need to pay £1,250 per year (which would allow them to quote up to 50 reviews). Seriously. Apparently, the NLA went around to various music agents and managers a while ago, and they (quite reasonably) ignored the threats. That just made the NLA mad.

... the phoney war has turned into a real one, with the NLA chasing agents, threatening legal action and demanding not just license payments for future quotes but also retrospective payments for past ones.

The amounts are crazily excessive for the modest, shoestring operations that most classical music management and PR companies tend to be, with £7,000-£8,000 a typical demand.

For folks who help market a number of musicians, the NLA claims are apparently adding up to being fairly serious.

The most outrageous example... concerns a small PR company called ElevenTenths, which is effectively one woman, Claire Willis, working form a spare bedroom.... Poor Ms. Willis was collared by the NLA a few months ago, required to fill in forms about her clients and activities, and then received a bill for £23,500.

Willis complained and apparently the NLA "backed down" and offered a deal for "only" £1,588.45. In the past, we had written about the NLA winning a lawsuit against news aggregators, so perhaps it's now turned to those who quote its reviews as a new, highly questionable, revenue stream.

I wonder if folks in the UK are regretting the decision, in the Hargreaves report, that the UK doesn't need an explicit fair use rule.

Filed Under: copyright, licensing, musicians, newspapers, quotes, reviews, uk
Companies: nla