WIPO Says Johnson & Johnson Can't Seize Parody Website Suggesting Band Aids With Corporate Sponsors

from the brand-aid dept

Danielle Baskin is something of a brilliant creative force who constantly comes up with hilarious art projects/commentary/satire -- some of which end up turning into actual businesses. This included, somewhat recently, her Maskalike business that would print yours (or someone else's?) face on a mask. That operation just closed up shop, but was quite popular in the midst of the pandemic. She's also created satirical services such as one that puts blue checks on your home (a la being "verified" on Twitter or Facebook) or stained glass film over airplane windows, or a "Decruiter" service to help you figure out when to quit your job, or a hoodie that will let you replace corporate logos with velcro. There's also the website that runs obituaries for expired domain names.

There are many more of these kinds of projects listed on her website. One of her attention-getting projects from a few years ago was Branded Fruit, where she would... well... do what it says, and put a corporate brand on a piece of fruit.

Perhaps somewhat inspired by the success of the Branded Fruit project while thinking about the pandemic, the vaccines, and the rush to turn just about anything these days into a branding opportunity, a few months back Basken set up Brand-Aid™ at the website BrandedBandAid.com. It's a clever bit of commentary on the nature of the commercialization of health care these days.

Of course, as the little ™ in the title of her site obliquely comments on, Johnson & Johnson still holds the trademark on the brand "Band-Aid" and tries to police the mark fairly aggressively -- especially since many, many people assume that "band aid" is a generic term for medical adhesive bandages, and J&J is terrified of losing the actual trademark.

Soon after the Brand-Aid (sorry Brand-Aid™) domain was registered, J&J sent a nastygram. Baskin responded quickly that the site was clearly a parody about the capitalization of public healthcare. J&J then did what J&J does and went to WIPO to demand that the domain itself be handed over to the company. What then followed is fascinating and laid out in WIPO's decision that denies J&J's demand, allowing Baskin to keep the website.

The key issue is whether or not the domain was registered in bad faith. The WIPO panel isn't completely convinced by Baskin's arguments -- noting that even if the website is a parody, it's not clear that the domain itself is:

Here, the Panel considers that the phrase chosen by Respondent in the Domain Name – “brandedbandaids” – does not itself convey parody of Complainant, its trademarks, and related products. Moreover, and while the Panel tends not to find Respondent’s arguments on this point terribly persuasive, it is also at least debatable whether the website linked to the Domain Name targets Complainant and its BAND-AID marks, or rather is intended as a more general parody of “the capitalization of public health,” as initially claimed by Respondent. See e.g., A&F Trademark, Inc. and Abercrombie & Fitch Stores, Inc. supra (“In order to constitute parody, the web site must poke fun at the goods or services associated with Complainants’ marks: use of another’s trademark to poke fun at something unrelated to Complainant’s mark is not parody.”) Of course, the Panel also recognizes that Respondent has free speech interests protected as a constitutional right in the United States; however, under the law individuals do not enjoy absolute freedom of expression especially with respect to terms protected as trademarks.

But the key issue for WIPO is really whether or not the domain was registered in bad faith, and there's no evidence to support that.

Here, there is no doubt that Respondent, when registering the Domain Name, was aware of Complainant and its BAND-AID brand. The question is whether, despite that awareness, and in view of Respondent’s asserted artistic parody intention for registering the Domain Name, the registration and use amounts to bad faith.

Complainant has contended that Respondent’s registration of the Domain Name without authorization reflects opportunistic bad faith and was intended to exploit the goodwill and fame of Complainant’s marks in bad faith to improperly deceive Internet users and benefit Respondent financially. Complainant has pointed out that when Respondent initially launched her website, the disclaimer was not prominently placed and Respondent used an allegedly infringing version of the BAND-AID mark in the font and color typically used by Complainant. Further, Complainant argued that the ultimate effect of use of the Domain Name will be to cause confusion with Complainant, and thus the registration and use of the Domain Name must be considered to be in bad faith. Complainant has sought to emphasize that Respondent’s use should not be considered “purely noncommercial” because an Internet user, by using the link to Respondent’s Twitter account and then clicking through to her personal website, could be introduced to commercial ventures offered by Respondent.

In the face of these contentions, Respondent has argued that while a given use may or may not meet the standards for the parody defense, it may still be a sufficiently plausible, good-faith motive to overcome Complainant’s proposed inference of bad faith within the meaning of the Policy. Given the facts and circumstances of this case, the Panel agrees with Respondent on this point. See The California Milk Processor Board supra (“This may or may not meet the standards for the parody defense under United States trademark law, but it is a sufficiently plausible, good-faith motive to outweigh the Complainant’s inference of bad faith within the meaning of the Policy.”). Respondent has provided evidence to demonstrate that she is, in fact, an artist who engages in parody of the Internet, capitalism, online businesses and the technology industry more generally, while using websites, domain names and social media. Respondent has not demonstrated any interest in selling or transferring the Domain Name, nor is there evidence that she has previously made a practice of acquiring domain names resembling trademarks for sale. Respondent has claimed that the website linked to the Domain Name has no revenue or plan to seek revenue, and has submitted a sworn affidavit to this effect:

“I registered and used the website solely for the purpose of artistic parody. At no time have I ever sought commercial benefit from either the website or from the registration of the domain name.”

The evidence in this case supports Respondent’s assertion concerning noncommercial use. As for the link on the Domain Name’s website to Respondent’s Twitter account, which in turn might be used to link to Respondent’s personal website that reflects one or more commercial ventures, the Panel finds that this path is too attenuated such that it would by itself disqualify the Domain Name from noncommercial use. Further, since being contacted by Complainant’s counsel, Respondent has taken steps – through a disclaimer on the website and changing the font and color of text on the site – to respond to Complainant’s demands concerning the content of the website. This point is important because UDRP panels tend to assess relevant facts concerning use of a domain name with a view to the circumstances prevailing at the time of the filing of the complaint, and Respondent made the relevant changes before the Complaint was filed. See WIPO Overview 3.0, section 2.11. Ultimately, and acknowledging that the Policy criteria are non-exclusive, looking at paragraph 4(b)(iv) in particular, the Panel finds that owing to the credibility of the sworn assertion as to the noncommercial nature of the Domain Name and attendant website, the Domain Name was not registered and used in bad faith.

Finally, the Panel emphasizes that the decision in this case is limited to the criteria under the Policy, and the Panel makes no findings concerning the parties’ rights under applicable national law – which may in any event be better suited for determination by a court.

Complainant has failed its burden to demonstrate that the Domain Name was registered in bad faith.

As the panel makes clear, that doesn't mean Baskin is totally free and clear. J&J could still go after her in court for trademark infringement, in which case the fair use, non-commercial use and other defenses would be used and could prevail (though it would still be quite a mess). Hopefully, J&J realizes not only what a wasteful headache that would be, but also how it would make the company look like a ridiculous, censorial bully who can't take a joke.

Anyway, to celebrate, I'm going to go put Techdirt logos on some generic Band-Aids.

Filed Under: advertising, brand aids, commentary, danielle baskin, domains, parody, satire, trademark, vaccines, wipo
Companies: johnson & johnson

The Eternal October: Bringing Back Tech Optimism, Without The Naivety

from the time-for-a-rethink dept

For many reasons, it seems we're deep in the mire of the techlash: everywhere you look, there are stories about the evils of technology. And while it is important to explore the risks and downsides of technology -- especially after a few decades dominated by boosterism and PR-pretending-to-be-news -- there's a real danger of throwing out all the good (and potential good) while trying to deal with everything bad.

I think it's time that we bring back recognition of how innovation, and technology such as the open internet, can actually do tremendous good in the world. I'm not talking about a return to unfettered boosterism and unthinking cheerleading -- but a new and better-informed understanding of how innovation can create important and useful outcomes. An understanding that recognizes and aims to minimize the potential downsides, taking the lessons of the techlash and looking for ways to create a better, more innovative world.

A little over a decade ago I toyed with the idea of writing a book about the untapped power of the internet. I worked on a book proposal, found an agent, and talked with a few publishers -- and what I heard was somewhat disheartening. I was told everyone was already so positive about the internet that no one thought a book about the good of technology would sell. Instead, I was told, the market was really hungering for contrarian books about how terrible the internet was. And indeed there were several such books published around that time, many of which sold quite well. Of course, over the past few years, the general good feelings about the internet have come crashing down in the public narrative, so I began thinking about finally writing a massively updated and expanded version of what I thought my original book would be about -- and this time, I would be the contrarian, pointing out that maybe the techlash has gone too far in dismissing the important benefits of innovation. Again I went around and talked with a few people, and the message I got back was... "no one likes the internet any more, so such a book won't sell."

I'm beginning to think it might just be that book publishers don't like the internet, and aren't all that interested in publishing a book about its incredible potential for good.

Eternal August, September, & October

Internet old-timers probably know the phrase Eternal September, though I always heard it as "the September that never ended." It comes from the idea that in the late 1980s and early 1990s, every September there would be an influx of newbies on the internet (mostly on Usenet) as incoming freshmen at colleges would get their very first internet access. And those newbies would blunder around, not understanding the customs and norms, and generally be bad tourists until they settled in and learned how things worked. However, in September of 1993 (incidentally my freshman year in college, and my introduction to Usenet), AOL opened its then-massive doors to Usenet as well. Prior to that, AOL had been a walled garden: a proprietary service, separate from the open internet. However, seeing the writing on the wall, AOL tore down its own walls and sent its massive userbase careening all over the open internet. And thus the bad behavior of my cohort of college freshmen was completely dwarfed by the sheer nonsense of hordes of clueless AOL users.

From then on, the internet was never the same. Hence, the Eternal September.

To some extent, what we've seen over the last few years was an enhanced and much more damaging version of the Eternal September. The craziness has taken over parts of the internet. A few weeks back, I was talking about this with a friend and we joked about the goal of the Eternal August -- bringing back that moment of hope and potential, before all the newbies came in and ruined things. Indeed, originally this post was going to have Eternal August in the title.

But as I drafted this piece, I realized that it's not the Eternal August we should be aiming for. Because that would ignore the very real damage and harms that have come from the abuse of technology: the fact that nation states and other actors with bad intent have often captured and abused the internet for their own ends. So instead, I think we should be aiming for a kind of Eternal October. Historically, prior to AOL's walls coming down, the craziness caused by the September influx of newbies would gradually recede as they learned how everything worked and how to be good digital citizens. There was just a bit of a learning curve. The problem with the Eternal September was that there were just too many of these people for them to all learn how to be good digital citizens. But all these years later, perhaps that's what we need to (and can) achieve.

That is, we should have a world in which we recognize the amazing opportunity of innovation to empower everyone and to challenge unaccountable power -- but not one in which we indulge in naive utopianism or the assumption that progress towards a "good" outcome is inevitable and easy. That is the power of the Eternal October. Eternal August is fun and exciting and optimistic -- but can be naive about the dangers downsides. Eternal September is a dystopian hellhole in which you recognize that utopias don't come about automatically. Eternal October, then, is where we take both into account, and recognize how technology and innovation have amazing potential for good without overlooking the fact that they can also be abused for nefarious purposes. It's when we explore ways to support the good aspects of innovation, and seek to minimize the potential for and impact of abuse.

In an Eternal October, we recognize a world in which innovation does a tremendous amount of good. Millions of people -- often those who were marginalized and whose views were suppressed -- have been able to find likeminded connections, to organize, and to speak out. In this world, we see incredible movements like the Arab Spring, the #metoo movement, and many powerful campaigns against hatred and racism. It's a world in which access to information and people have enabled knowledge to flow, people to become educated, and previously unheard voices to speak out against true injustice.

But in this world we also recognize how those same tools of innovation can be co-opted and put to nefarious intent. We've seen how they can be used for targeted harassment campaigns, and how the power of online communities can be leveraged to spread disinformation, hate, chaos, and discord. We seen how the innovative new tools of communication have been put to important use for effecting change and speaking truth to power, but also how the powerful have turned those tools around to further entrench their power and attack the vulnerable.

And this doesn't just happen on a large scale. Smaller benefits often get lost while focusing on the huge movements: the ability of marginalized and at-risk people in communities with little support to find others on the open internet and realize they are not alone; the ability of individuals in far flung places to simply find their own tribe -- the people who truly understand them. But less globe-spanning downsides also can't be ignored: the abuse can have devastating impact on a small scale as well.

The Eternal October: Focus on Empowerment

So how do we square those two sides? The power of technology to bring people together, to build movements, and to create change is undeniable. Sometimes it's used for good and, clearly, sometimes it's used for ill. Some people seem to believe that the fact that it can be used for bad purposes outweighs all else, and means that the technology and the power it creates should be greatly limited and scaled back. I believe otherwise.

For years, there were attempts to place all commentators on tech into one of two camps: techno utopians and techno skeptics. I've regularly been called a techno utopian. People can call me whatever they want, but I think the "utopian" framing is incredibly misleading. I'm reminded of Cory Doctorow's useful response to those who called John Perry Barlow a hopeless utopian optimist:

You don’t found an organization like the Electronic Frontier Foundation because you are sanguine about the future of the internet: you do so because your hope for an amazing, open future is haunted by terror of a network suborned for the purposes of spying and control.

And I think this is also true of those of us thinking about these issues today. We don't have the naive, blind optimism of the Eternal August, and we recognize the real issues driving this Eternal September of darkness we seem to be living through. But now we want to fight like hell to bring society around to that Eternal October: one in which we do not pull down all that makes the internet so valuable and wonderful, but view it with clear eyes that see how it has been (and will continue to be) abused and misused by some for ill-intent.

To me, the key is to focusing on what the open internet has always done best: empowering individuals. It is the empowerment that underlines all of this. Empowering more people to take control over their digital lives. Empowering more people to push back on unaccountable power -- including unaccountable power from large tech companies, from governments, and from a wide variety of organizations that aim to bend people to their own beliefs instead of doing what's right. That means empowering people to fight back against those forces that want to co-opt the internet for nefarious reasons, and to respond with truth over lies, context over innuendo, and autonomy over dependence.

I don't think any of this is easy. But, like John Perry Barlow, I still hope for an amazing, open future -- even while I fear how it will be taken from us through a combination of those with ill-intent, and those who have the best of intent but don't realize just how many babies they may toss out with the bathwater.

I don't know where all of this is going right now, but I do know that I've been having conversations along these lines with a bunch of people over the last year or so, and there's a strong feeling that it's time for us to reclaim the open internet. To bring it back to the original vision of the earliest proponents and builders of the open web, in which it was all potential, but with the humility and knowledge of how that power can and will be abused. We can have an internet that empowers people, but not with blind optimism. We can recognize that optimism is warranted, but needs to be tempered with a healthy understanding of where things can go wrong. We can look for ways to enable more people to respond to those challenges, rather than relying on large companies and governments to step in and "solve it" for us -- often with a sledgehammer directed at the foundational things that make the internet such a valuable tool in the first place.

As regular readers know, I always close my final post of the year on Techdirt with reasons for optimism, and for last year's post I talked about the need to make the world a better place. And that began with standing up and taking on the responsibility to help do that myself. This post is another step in that direction (and I haven't given up on my book idea, either): I'm exploring more and more ways to actually bring about the Eternal October.

Expect more to come on this...

Filed Under: communications, eternal august, eternal october, eternal september, movements, open internet, optimism

Daily Deal: The Modern Web Development And MySQL Programming Bundle

from the good-deals-on-cool-stuff dept

The Modern Web Development and MySQL Programming Bundle has 5 courses to help you master popular programming languages. You'll learn PHP, MySQL, GitHub, Heroku, Blazor, .NET, and more. It's on sale for $20.

Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Filed Under: daily deal

Judge Ignores First Amendment, Misreads Town Law, While Ordering Resident To Remove 'Fuck Biden' Signs

from the I-guess-we're-extending-ignorance-of-the-law-privileges-to-judges-now dept

A municipal court judge in New Jersey who apparently doesn't understand either the First Amendment or local ordinances has just ordered a resident to take down some f-bomb-laden signs from her yard. (h/t Peter Bonilla)

A municipal judge on Thursday ruled that a Roselle Park homeowner’s owner’s anti- President Biden flags including the F-bomb on her fence were obscene and must be removed because they violated a borough ordinance.

Roselle Park Municipal Court Judge Gary Bundy ordered the Willow Avenue homeowner to remove the signs with profanity within a week or face a $250-a-day fine. Patricia Dilascio is the property owner but her daughter, Andrea Dick, had the signs, three of which include the F-word, on display.

The signs, which can be seen in this photo, are certainly colorful in terms of language, and very definitely convey their owner's displeasure with the current regime. However, it would appear they do not violate the ordinance cited by the judge, who also claimed to be all for protecting free speech rights while issuing an order that violates those rights. According to Judge Gary Bundy, free speech is not "absolute" and the town's law does not "abridge or violate" the First Amendment rights of the signs' owner.

It is clear from state law and statutes that we cannot simply put up the umbrella of the First Amendment and say everything and anything is protected speech.

Well, that's true, but only if you insist on limiting your analysis to superlatives, as this judge did. The town's law does not abridge the property owner's First Amendment rights. But this application of the law certainly seems to. The phrase "Fuck Biden" -- which appears on three different signs -- doesn't actually violate the ordinance the town of Roselle Park claims was violated. The law forbids the public display of "obscene material." Here's the law's definition of that term:

The word "obscene" shall mean any material, communication or performance which the average person applying contemporary community standards existing within the municipality, would find, when considered as a whole:

a. Appeals to the prurient interest;

b. Depicts or describes in a patently offensive way sexual conduct as hereinafter specifically defined, or depicts or exhibits offensive nakedness as hereinafter specifically defined; and

c. Lacks serious literary, artistic, political or scientific value.

Given the "and" between b. and c. and the phrase "when considered as a whole," these signs would need to violate all three clauses to be considered obscene. "Fuck Biden" seems pretty clearly "political," even if the value of the sentiment is somewhat debatable. But there's nothing sexual or prurient about this use of the word "fuck," which would be taken by literally nobody to mean the property owner is suggesting someone should engage in a sexual act with the current President.

We certainly don't expect municipal courts to be run by Constitutional scholars or attorneys with years of experience defending civil rights, but we should expect appointed judges to at least keep up with the last 50 years of Supreme Court precedent (including some recent decisions) determining that the word "fuck" -- especially when used in conjunction with political issues -- is definitely protected speech.

But even the town's mayor seems to believe residents' rights end when public officials begin to get offended on behalf of rhetorical minors.

“Today was a win for the borough and decency,” Signorello, the mayor, said in a statement to NJ Advance Media. “While we respect the views of our residents, there’s no place for profanity by a school and school children.”

It was neither, Mayor Signorello. It was a win for people who still think the word "fuck" has the innate power to tear apart the fabric of society. It was a win for people that think the only speech that should be protected is speech they like or agree with.

The judge is no better.

The judge, while handing down his ruling and sentencing, rhetorically asked if a balance could be found between the homeowner’s freedom of speech and a mother having to explain what the f-word means to their child.

"It's a swear word" would be all the explanation most kids need. And most kids won't need an explanation because they're already familiar with the list of words not used in polite society. Judge Bundy seems to believe he's presiding over a Mayberry-esque community that still has milkmen and separate beds for husbands and wives, rather than a 2021 New Jersey town that's located in a state best known for mob violence, corrupt politicians, and residents considered only slightly less terrible than Philadelphians.

This is a dumb decision and it's supported by people saying even dumber things than the judge who blew this Constitutional call. The decision can be appealed and definitely should be. The ordinance doesn't say what the judge says it does, and the First Amendment still says what it has always said. For the moment, the signs remain up, which presumably means the imaginary uncomfortable family discussions of f-bombs will have to continue until this issue is finally resolved.

Filed Under: 1st amendment, free speech, new jersey, obscenity, political speech, roselle park

MAGA 'Freedom Phone' Targets Rubes With Dubious Promises Of Privacy

from the one-born-every-minute dept

If you hadn't noticed, there's been no shortage of dodgy folks attempting to cash in on the MAGA craze. There's also been no shortage of folks eager to cash in on the generalized animosity against "big tech" driven by bogus claims of "Conservative censorship" (aka: people being held vaguely accountable for being racist assholes on the internet via clumsy Silicon Valley moderation practices that don't work well at scale).

Enter the $500 Freedom phone, a new device being targeted at MAGA devotees promising an "uncensorable App Store," all your favorite right-wing apps preloaded, and promises that users can take "back control" from big 'ole mean big tech.

Amusingly there's no real detail anywhere on the website in terms of specs or build, meaning users have no real idea what they're actually signing up for. But when The Daily Beast had somebody take a closer look at the device, they found it was likely a Chinese-made A9Pro (retail: $120) running a modified version of Google's Android OS dubbed "FreedomOS":

"Freedom Phone appears to be a simple rebranding of a budget phone called the “Umidigi A9 Pro,” made by the Chinese tech company Umidigi. In an interview with The Daily Beast, Finman confirmed that the Freedom Phone was manufactured by Umidigi, but couldn’t say immediately which Umidigi phone it was based on.

The Freedom Phone’s $500 price tag would represent a substantial markup on the Umidigi A9 Pro. That phone is available on Chinese retail giant AliExpress for $120 — less than one quarter of the price of a Freedom Phone."

The phone in question appears to be one of several discounted Android phones with insecure configurations that are vulnerable to a long list of trivial vulnerabilities. The low cost, high-customizability of such phones make them more vulnerable than more expensive options, and less likely to see consistent security updates. In short, the Freedom phone appears to not only be an overpriced version of a fairly underwhelming phone, it potentially makes its customers more vulnerable to the type of spying and government surveillance they're being told they're avoiding.

In a post to Twitter, the phone's creator proclaims the phone is "the first major pushback on the Big Tech companies that attacked us - for just thinking different." Though as several Twitter users were quick to point out, a completely unmoderated or managed app store means it's easy for any random idiot (or government) to launch a bevy of privacy-violating and malware-laden apps designed to hoover up your personal details:

As Gizmodo notes, the ironic part is there's ample resources for folks genuinely interested in freeing themselves from Google and Apple. There's massive online communities designed around letting you bypass the Android/iOS gatekeeper logjam, often for a fraction of the cost of the Freedomphone. The Linux-based Pine phone, for example, offers a significantly cheaper option with greater transparency into what you're actually buying. The /e/ Foundation also sells refurbished and "de-Googled" discount phones that are likely notably more secure at a lower price point (with caveats).

Of course this all assumes that you genuinely care about privacy and aren't just gesticulating wildly based on a bunch of bullshit fed to you by a NYC real estate conman with a terrible combover.

Filed Under: android, censorship, china, erik finman, freedom phone, maga

Google Jumps Into The Game Revenue Split Wars With Stadia

from the splitsville dept

It's no secret that the launch of Google's video game streaming platform Stadia has not exactly been smooth. From access issues to performance problems, up to and including a low adoption rate and stunted catalogue of games, this appeared for all the world to be Google's video game equivalent of Google Plus. In other words, one of those projects Google launches half way and then abandons. Part of the issue with the catalogue was reports that Google wasn't going to be shelling out cash to bring in more games to the platform last year.

But perhaps that is going to change. And perhaps the rumors of Stadia's forthcoming death have been greatly exaggerated. Reports now indicate that Google is going to try to attract more publishers to the platform by engaging in the same revenue-split wars currently going on between Steam, Epic, and Microsoft.

As part of a Stadia keynote presentation today, Google announced several moves designed to attract more games and publishers to its streaming gaming service. Chief among these is a more generous revenue split for publishers on the platform. Starting in October, Google will only take a 15 percent cut of the first $3 million in revenue for each new game on Stadia.

Assuming the industry-standard 30 percent cut, that means publishers stand to make up to $450,000 more per game before Google's cut reverts back to the standard at the $3 million threshold (a Google representative told Ars that "Stadia currently provides competitive revenue share terms with partners that matches what they typically see from other industry platforms"). The more generous deal only applies to "newly signed games" on Stadia from October through the end of 2023, though, meaning publishers that got in on Stadia early will miss out on the increase for their legacy titles.

As noted, this program is specifically designed to attract new game titles to Stadia. It's also worth noting that the "industry-standard 30%" platform cut isn't necessarily the industry standard any longer, unless you only consider Steam as the standard. And that would be dumb. There is emerging competition in the gaming storefront space... finally.

But, for Stadia, this is less about trying to carve out more market share and more about carving out any market share. Stadia only has 195 games on its platform. And while that might sound like a healthy amount, it's really not. Not when you consider the thousands of games available on Steam and Epic, or even the hundreds of games you can buy for last-generation consoles. Yes, streaming is different and not all games will be good candidates for the streaming platform. But streaming services become attractive largely by volume of offering. Imagine Netflix never getting past 200 television shows and movies. It wouldn't work.

Stadia is also trying to lure more games onto the platform with other revenue-makers as well.

Google will also more directly be giving publishers a cut of the proceeds from the games Stadia offers as freebies through its $10/month Stadia Pro subscription. A full 70 percent of Stadia Pro revenue will now be shared with the publishers of "any new title that enters into Stadia Pro" starting this month. That revenue will be divided up among publishers based on the number of "session days" (i.e., daily active users per day) logged on each title among all Stadia Pro users.

Finally, Google says that it will be rolling out a new Affiliate Marketing Program to increase the value of the "Click to Play" links that Stadia developers and publishers can create. Starting sometime in early 2022, if a player signs up for Stadia Pro using one of those instant-play links, the developer or publisher behind the link will receive the first $10 monthly payment made on the subscription (after a one-month free trial).

All of which is to denote that it looks like Google isn't ready to give up on Stadia yet. But getting more games on Stadia is just the first step. Even if that's successful, Google then has to gain more customer adoption. That's going to take time and investment over the mid- to long-term.

And after the rocky start, we'll get to find out together whether more games will be enough to get the bad Stadia taste out of the public's mouth.

Filed Under: revenue split, stadia, video game streaming, video games
Companies: google

Using The George Floyd Protests As An Excuse, Minneapolis Police Destroyed Evidence And Case Files

from the protests-are-now-free-passes-for-record-destruction-I-guess dept

Immediately following the murder of George Floyd by former-officer and current-convict Derek Chauvin, Minneapolis burned. Literally. Unchecked violence by cops provoked violence by some city residents, who looted businesses and, most provocatively, set the Minneapolis PD's Third Precinct building on fire.

While this happened, another precinct -- located nearly five miles away from the most intense protests -- decided now was the time to pursue some opacity.

As an unruly crowd besieged Minneapolis' Third Precinct headquarters last summer, officers on the other side of the city destroyed a cache of documents, including inactive case files, search warrants and records of confidential informants.

In a private police report, Minneapolis officer Logan Johansson disclosed that he and other investigators in the Second Precinct to the northeast decided to destroy the documents shortly after May 28 "in direct response to the abandonment of the Third Police Precinct in Minneapolis by city leadership."

If the Second Precinct fell, this sensitive information could wind up in the wrong hands, Johansson wrote. "The data contained in these files could put the lives of CIs or various other cooperating defendants at risk."

You know, files are portable. I mean, it's not as easy as feeding them to a shredder or burning them, but files can be moved because, at worst, they're on paper. At best, they're digital, meaning they can be moved almost anywhere without anyone having to lift more than a finger.

Ignoring this reality, the Second Precinct decided to use unrest in the city as an excuse to destroy a whole bunch of records that might have eventually "fallen into the wrong hands" as the result of, say, public records requests or court orders demanding the relinquishment of exculpatory evidence.

And the cops might have gotten away with it (at least for a bit longer) if it wasn't for those meddling… um… arrestees. Apparently, county courtrooms are also considered to be part of the "wrong hands" group.

Public defender Elizabeth Karp says the officers acted without oversight and against policy when they destroyed critical evidence in the charges against her client, 36-year-old Walter Power. Power is charged with a felony for allegedly selling drugs. Police collected evidence against him based on search warrants that were destroyed by the officers and through cellphone data that has since been lost, according to Karp's motions that ask the judge to throw out the case.

Hey, if you don't want someone to avoid doing the time, maybe don't do the crime. This has resulted in Power's lawyer asking the court to issue an order it shouldn't really have to issue: one that requires the Minneapolis PD to stop destroying evidence. It seems like an entity involved in law enforcement would want to keep as much evidence preserved at all times, since that's the pretty much the only thing it can use to get dangerous criminals off the street.

Or maybe the destruction of evidence just happened to be an unfortunate side effect of (possibly) destroying other, less-useful records.

Only about 1.5% of complaints filed against Minneapolis police have resulted in suspensions, terminations or demotions between 2013 and 2019, according to a CNN analysis of data from the city's Office of Police Conduct Review, which investigates complaints. That office, which is separate from the police department but works with officers to resolve complaints, received about 2,013 complaints against police within its jurisdiction in that time.

If complaints that garnered letters of reprimand are included, that rate of discipline rises to about 2.6%.

That's a whole lot of misconduct that appears to have been given a minimal amount of attention by the MPD's internal oversight. It would be kind of terrible if these underlying documents made their way into the public domain, so why not toss these records into the bonfire that theoretically might have been the end result of protests if the demonstrators made their way five miles northeast and duplicated their Third Precinct efforts.

Not to worry, Minneapolis residents. The Second Precinct is hard at work clearing itself of any wrongdoing!

Asked for comment Wednesday, Minneapolis police spokesman John Elder said the department is investigating. "We are conducting an internal investigation to understand what happened at the Second Precinct, how the decisions were made and whether there were broader issues with documents, records or files stored in our facilities during the riots," said Elder.

Doesn't seem like there's much to understand. Some cops saw one precinct building on fire and decided the best way to preserve records was to destroy them. The statement continues:

"Any disciplinary decisions would be made through the normal process after an investigation."

LOL OK. [Taps CNN report quoted above.] The "normal process" appears to be 2.6% wrist slap and 97.4% "officers did nothing wrong." Perhaps this time it will be different because this time there are more eyes watching the Minneapolis PD than ever before. But an internal investigation can be allowed to consume as many news cycles as needed to sweep it under the press-release-late-Friday-afternoon rug.

Filed Under: case files, destruction of evidence, evidence, george floyd, minneapolis, minneapolis police

Patent Quality Week: This One Weird Trick Could Solve Most Patent Quality Problems

from the it's-not-that-difficult,-guys dept

This week is the very first Patent Quality Week, in which a bunch of folks in the innovation space explore what it will take to improve patent quality. Unfortunately, for years, patent maximalists have tried to attack those of us who support a better patent system with somehow being totally against patents. They will regularly conflate arguments people have made to get rid of bad patents, and about how bad patents are abused to hinder, stifle, and slow down innovation, as if they mean that we hate all patents entirely. That's not true. So this week we'll be posting a variety of articles from different perspectives about how we can get better quality patents.

Almost exactly a decade ago, I laid out my plan for fixing the patent system, which included four separate proposals, all of which I still think are good. And so far, out of the four, only half of one has actually been put into practice (and is now under tremendous attack). That was the inter partes review process added by the America Invents Act, to make post-grant review of patents easier (though it did not come together with the other half of that suggestion, which is to drop the presumption that a patent, once granted, must be valid).

However, for this inaugural Patent Quality Week, I wanted to focus in on a separate prong of my plan to fix the patent system, which I think would massively improve patent quality practically overnight. It's this: recognize that independent invention is a sign that an invention is not patentable. This may require a bit of explanation. Going back many decades, US patent law has, officially if not actually, used what's known as the PHOSITA standard, which stands for "person having ordinary skill in the art." Specifically 35 US 103, on the conditions for patentability and non-obvious subject matter, says:

A patent for a claimed invention may not be obtained... if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains.

This is a different standard than the one that most people talk about regarding patents: whether or not there is prior art. But prior art is covered by Section 102, not 103. Section 103 says that if an invention would be obvious to a PHOSITA, then the patent should not be granted.

Yet, very little is ever actually done to determine if a PHOSITA would find an invention obvious. The PTO's guidelines on this are more or less... just going back to the prior art determination. But it seems to be that there's a better way.

If you see a lot of independent invention of the same basic thing done around the same time by multiple parties, that alone should be evidence of obviousness. After all, the others submitting their patent applications (or, better yet, creating their products) are, by definition, PHOSITAs. And if they're all coming up with the same damn thing by themselves, then that certainly suggests that the inventions are not so novel that they require the incentive (and the monopoly) of a patent to have them created.

Indeed, history has shown time and time again that the biggest inventions occur more or less simultaneously to multiple people around the globe. It's a recognition of the notion that some ideas are just "right" for their time. It's not some stroke of individual genius. It's that other conditions have come up to make the next combination of ideas somewhat obvious to those having ordinary skill in the art.

Lots of people have suggested that we should have an independent invention defense to patent claims (that is, you can get out of a lawsuit if you show you had no idea of the original patent), but I think that doesn't go far enough. We should note that if there is such widespread invention within the same general timeframe, it's strong evidence that no patents should issue in that space, because they are obvious to those having ordinary skill in the art.

That one change to the patent system would completely change the system and massively improve patent quality. It would wipe out a wide range of silly minor improvements that anyone with knowledge in a space would come up with, and focus patents on actual breakthroughs that are not at all obvious.

Filed Under: independent invention, obviousness, patent quality week, patents, phosita, prior art