'Peaky Blinders' Production Company Working With Bushmills On A Themed Whiskey

from the that-explains-it dept

Nearly a year ago, we talked about a trademark battle between Caryn Mandabach Productions, the company that produces Netflix's Peaky Blinders hit show, and Sadler's Brewhouse, a combined distillery that applied for a "Peaky Blinders" trademark for several spirits brands. Important to keep in mind is that "Peaky Blinders" isn't some made up gang in a fictional story. That name was taken from very real history in England, as evidenced by the folks that own Sadler's being descendants from one of the gang's members. It's also important to remember that television shows and alcohol are not the same marketplace when it comes to trademark law. Despite that, there has been a years-long dispute raging between Mandabach and Sadler's.

And now we have some indication as to why, since Bushmills has announced a partnership with Mandabach Productions to release its own "Peaky Blinders" themed whiskey.

Irish whiskey producer Bushmills could be launching a Peaky Blinders-inspired whiskey after applying to approve a label for the product. Proximo Spirits, which owns Bushmills, made the application to the US Alcohol and Tobacco Tax and Trade Bureau in January 2022.

Caryn Mandabach Productions, which produces the hit Neflix series about the flatcap-wearing gang, is thought to be mentioned on the proposed Bushmills label, which also allegedly says the whiskey is licensed by series distributor Banijay Group.

And this is where things get really interesting. Why? Well, the argument I made in the original post on this topic was that Mandabach really didn't have a good argument for opposition or infringement since the production company wasn't actually using the historical name of a real gang to make alcohol. Given the disparate markets, there didn't seem to be any real reason for concern about public confusion.

But now that is happening in reverse. A company behind the Netflix show is now partnering with another distillery to enter the spirits market with a "Peaky Blinders" brand and theme. If anything, I would think that Sadler's Brewhouse now has an argument for opposition, given the pending trademark application. Especially since it seems the production company, late to the party, has "plans" to get into the liquor business.

Earlier this month, The Sun revealed that the production company has its own plans to open a line of Peaky Blinders-themed bars and restaurants.

In which case I believe this would come down mostly to a "first to file" race. And if the production company had already filed trademark applications for the liquor business, you really would have thought that fact would be on display in its opposition and suit against Sadler's. But there was no hint of that in any of the documents that informed our previous post.

So, on Mandabach's side of things, this all appears to be backwards. Why it should win on any of this is not something I'm able to argue.

6 Comments

Apple Finally Defeats Dumb Diverse Emoji Lawsuit One Year Later

from the smiley-face dept

Roughly a year ago, we discussed a wildly silly lawsuit brought against Apple by a company called Cub Club and an individual, Katrina Parrott. At issue were "diverse emojis", which by now are so ubiquitous as to be commonplace. Parrott had created some emojis featuring more diverse and expansive color/skin tones. And, hey, that's pretty cool. The problem is that, after she had a meeting with Apple about her business, Apple decided to simply incorporate diverse skin tones into its existing emojis. The traditional yellow thumbs up hand suddenly came with different coloration options. Cub Club and Parrott sued, claiming both copyright and trademark infringements.

We said at the time we covered Apple's motion to dismiss that there was very, very little chance of this lawsuit going anywhere. The trademark portion was completely silly, given that Apple wasn't accused of any direct copying, but merely of copying the idea of diverse emojis. Since ideas aren't afforded copyright protection, well, that didn't seem like much of a winner. The trade dress claims made even less sense, since they were levied over the same content: Apple's diverse emojis. The argument from Parrott was that Apple having diverse emojis would confuse the public into thinking it had contracted with Cub Club. But that isn't how the law works. The thing you're suing over can't be a functional part of the actual product. In this case, that's literally all it was.

And so it is not particularly surprising that I'm able to up date you all that the court has dismissed the case a year later.

Apple Inc convinced a California federal judge on Wednesday to throw out a lawsuit accusing the tech giant of ripping off another company's multiracial emoji and violating its intellectual property rights.

Cub Club Investment LLC didn't show that Apple copied anything that was eligible for copyright protection, U.S. District Judge Vince Chhabria said.

Chhabria gave Cub Club a chance to amend its lawsuit but said he was "skeptical" it could succeed based on several differences between its emoji design and Apple's.

The analysis you'll see in the order embedded below basically follows our previous analysis. On the copyright claim, the judge points out that the idea of diverse emojis cannot be copyrighted and, since the accusation about similarity between the emojis themselves is made in an area where very little differences could exist, this doesn't amount to copyright infringement.

Chhabria said in a Wednesday order that even if the complaint was true, Apple at most copied Cub Club's unprotectable "idea" of diverse emoji.

"There aren't many ways that someone could implement this idea," Chhabria said. "After all, there are only so many ways to draw a thumbs up."

Exactly. As to the trade dress portion of this, well, there again the court found that the trade dress accusation concerned non-protectable elements.

To state a claim for trade dress infringement, a plaintiff must allege that “the trade dress is nonfunctional, the trade dress has acquired secondary meaning, and there is substantial likelihood of confusion between the plaintiff’s and defendant’s products.” Art Attacks Ink, LLC v. MGA Entertainment Inc., 581 F.3d 1138, 1145 (9th Cir. 2009). The trade dress alleged in the complaint is functional. The asserted trade dress consists of “the overall look and feel” of Cub Club’s “products,” including “the insertion of an emoji into messages . . . on mobile devices by selecting from a palette of diverse, five skin tone emoji.” This is functional in the utilitarian sense...

Again, right on point.

At the end of the day, while it's true that's it's easy to point at any civil lawsuit and call it a money grab, it's hard to see how this one isn't. There's simply nothing in any of this that's particularly unique or novel, even though I grant that it's a good thing there is more representation options in emojis.

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Video Game History Foundation: Nintendo Actions 'Actively Destructive To Video Game History'

from the ding-ding-ding! dept

I've been banging on a bit lately about the importance of video game preservation as a matter of art preservation. It's not entirely clear to me how much buy in there is out there in general on this concept, but it's a challenge in this specific industry because much of the control over what can be preserved or not sits in the hands of game publishers and platforms compared with other forms of art. Books have libraries, films have the academies and museums, and music is decently preserved all over the place. But for gaming, even organizations like the Video Game History Foundation have to rely on publishers and platforms to let them do their work, or risk art being lost entirely to the digital ether or lawsuits over copyright. We've talked in the past about how copyright law is far too often used in a way that results in a loss of our own cultural history, and digital-only video games are particularly vulnerable to that.

We just discussed Nintendo's forthcoming shutdown of the 3DS and Wii U stores, and what that meant for digital games that Nintendo indicates it is not planning on selling anywhere else. Well, the Video Game History Foundation released a statement on that action and, well, hoo-boy...

While it is unfortunate that people won’t be able to purchase digital 3DS or Wii U games anymore, we understand the business reality that went into this decision. What we don’t understand is what path Nintendo expects its fans to take, should they wish to play these games in the future. As a paying member of the Entertainment Software Association, Nintendo actively funds lobbying that prevents even libraries from being able to provide legal access to these games. Not providing commercial access is understandable, but preventing institutional work to preserve these titles on top of that is actively destructive to video game history. We encourage ESA members like Nintendo to rethink their position on this issue and work with existing institutions to find a solution.

Accusing Nintendo of being "actively destructive to video game history" is a hell of a charge, but point out where it's wrong. I'll wait.

The problem here is that video games are still seen, both by the public and producers, as something less than the kind of artistic output of literature, paintings, sculptures, or movies. Imagine a world where someone took the collective works of Monet or Bach, shutdown the venue in which you could pay to see them, and then also indicated that nobody else was allowed to display them for commercial benefit or not. Nobody would accept such a situation. That is culture and it belongs, in at least some small ways, to all of us.

Either because the history of video games is much more recent, or due to stodgy hand-waiving about how these games are not "real art", far less fur is raised over Nintendo taking these actions without any guarantee, or in some cases hostility, to preservation efforts. Yes, Nintendo has directly produced many of these games and it has rights for them due to that. But those games are also part of our shared cultural history, and no individual or company is, or should be, afforded the right to determine how we document that cultural history.

If nothing else, that certainly isn't the purpose of copyright law.

29 Comments

Nintendo Is Beginning To Look Like The Disney Of The Video Game Industry

from the into-the-vault dept

Techdirt, and myself specifically, have had an awful lot to say about Nintendo. To be fair to me, not every post I write about the company is negative. But to be fair to anyone with a pair of eyeballs, much of it certainly has been negative. I find that the company prioritizes control of every last ounce of its IP over its own customers and fans, that the company behaves in a manner so aloof as to be almost comical, and that the company seems perfectly willing to break the entire concept of the American copyright system incentives by combatting all forms of "piracy" or use of its IP while also being perfectly willing to silo that IP in places where the public simply cannot legitimately access it.

Does that sound like anyone else to you? Because it sounds like Disney to me. And, frankly, Nintendo's latest move sounds like the gaming industry equivalent to precisely what Disney has historically done with its "vaulting" of certain movies for periods of time. In this case, Nintendo has shut down the 3DS and Wii U stores, all while saying that it doesn't currently plan to make those classic games available elsewhere.

- As of May 23, 2022, it will no longer be possible to use a credit card to add funds to an account in Nintendo eShop on Wii U or the Nintendo 3DS family of systems.

- As of August 29, 2022, it will no longer be possible to use a Nintendo eShop Card to add funds to an account in Nintendo eShop on Wii U or the Nintendo 3DS family of systems. However, it will still be possible to redeem download codes until late March 2023.

To be fair and clear, owners of a Wii U and 3DS will still be able to redownload purchased games and engage in online play after those dates. For how long? Well, according to Nintendo, for "the foreseeable future." Which... yeah. Part of the problem here, as Kotaku notes, is that the 3DS and Wii U were also places where gamers could actually purchase and own classic Nintendo titles. There really isn't an equivalent to that once those stores are shut down as the newer consoles rely on subscriptions for gamers to play those classic games. No game purchases, just access via the subscription. So with this ownership option going away, will Nintendo replace it somewhere else? Nope!

Across our Nintendo Switch Online membership plans, over 130 classic games are currently available in growing libraries for various legacy systems. The games are often enhanced with new features such as online play.

We think this is an effective way to make classic content easily available to a broad range of players. Within these libraries, new and longtime players can not only find games they remember or have heard about, but other fun games they might not have thought to seek out otherwise.

We currently have no plans to offer classic content in other ways.

And so, there you have it. This reads much like a Disney message. You can have the content you want only in the way we want you to have it, under the subscription model we prefer, and only at times we make it available to you. Oh, and we can change all that up at any time because, once again, you're not actually buying anything, you're just subscribing to a service.

Oh, and one more thing you may be thinking if you've been following along with my posts about video game preservation needing some attention. You may be remembering that Nintendo had a section on its site that specifically talked about game preservation. Well, don't go looking now, because it's gone.

Especially wild, then, is the fact that not long after publishing this, Nintendo wiped that particular section of the Q&A from its site. Go and check it now and the “Doesn’t Nintendo have an obligation to preserve its classic games by continually making them available for purchase?” part is gone.

All the while, of course, the company will continue to punish fans by going after ROM sites, fan-made creations and recreations, YouTube channels featuring classic Nintendo music, and all the rest. If Nintendo isn't the Disney of the gaming industry, it's as close as we're likely to get.

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The Josh Hawley Mug: It Makes Him An Asshole, But Shouldn't Make Him A Copyright Infringer

from the hawley-shit dept

Josh Hawley, the waifish fascist Senator from Missouri, has made it onto our pages several times in the past. When he's not advocating breaking up Twitter because he doesn't like how a private company is run (fascist), or breaking up lots of other companies he simply disagrees with (fascist), you can typically find him pretending the First Amendment works the exact opposite of how it does in reality or explaining in published books and newspaper pages how much he's been silenced and canceled. It might all look very stupid on its face, but it isn't. It's actually quite diabolical.  

Hawley is a graduate of both Stanford and Yale. And, sure, you can convince me that someone can graduate from both of those schools somehow while being an idiot, but that's not Hawley. When he advocates for fascist policies and generally acts like a right-wing radio talk show host, it's not because he's stupid. It's because he's an assbag.

Now that we've gotten that out of the way, let's talk about the Josh Hawley mug he's selling on his website.

See? He's an asshole. In case you can't see the image or don't know what the issue is, that picture of Hawley was snapped by the AP and was him saluting the crowd of strange people protesting outside the Capital building because their preferred candidate lost. Some of those people later stormed the capital in a violent attempt to overthrow the will of the America people. Now Hawley, in a plain bid to generate outrage, is utilizing that picture of him saluting that crowd in order to raise campaign funds. Immediately after the launch of the mug product, his team sent out an email fundraising on it, apparently purely over the joy of making liberals angry, which appears to be one of Hawley's major policy positions.

Everyone remembers the photo of profa senator Josh Hawley raising his fist to salute the murderous rioters who stormed the Capitol, injured 150 police officers, and tried to hang Mike Pence. Now Hawley is selling a curiously named "Show Me Strong White Coffee Mug" with the same image in an amateurishly designed graphic.

He says its a "perfect way to enjoy Coffee, Tea, or Liberal Tears!" and is "not a pro-riot mug."

None of this is new or creative. The liberal tears thing is at least as old as Ben Shapiro saying it all the time and is probably older than that. The slogan is lame. And the picture, as Boing Boing goes on to note, is from the AP.

In addition, his mug uses an image based on an Associated Press photograph and is probably a copyright violation. AP told Rolling Stone that it's investigating. As you might recall, artist Shepard Fairey used an AP photo of Obama a decade ago, and ended up paying AP an undisclosed amount to settle the copyright lawsuit.

And here is where we take the Techdirt turn. The Fairey case was settled out of court, but we argued all along the way that Fairey's use should have qualified as fair use. I take the same view of Hawley's use of an AP photo. The use is for raising campaign funds, rather than purely commercial use. The photo is being used as political speech. It's at least mildly transformative, although not as strongly as Fairey's, given that most people will recognize where that image is from. And, ultimately, Hawley's mug represents zero threat to the AP's business. The AP isn't selling mugs with the picture on it to those that wish to drink liberal tears.

So while it's fun to discuss what a jerk Hawley is, trying to pretend that we think this is copyright infringement just because I don't like him would be disingenuous. And I, unlike Josh Hawley, am not that.

42 Comments

DC Comics Goes To UK High Court Over Trademark Granted To Unilever For 'Wonder Mum'

from the mums-the-word dept

Regular Techdirt readers will not be shocked when I say that DC Comics has a long and often ridiculous history when it comes to "protecting" its intellectual property. From trademark bullying over a barbeque joint, to trying to bully a Spanish soccer club for having a bat in its logo, up to waging a brief battle with the family of a dead child because they included the Superman logo on the headstone of the deceased: DC Comics will fight anything remotely like the use of its imagery or naming conventions.

And this isn't just check the box stuff, with lawyers playing pretend about having to defend certain IP or risk losing it. For instance, in the UK, DC Comics has taken a failed opposition over a Unilever trademark for "Wonder Mum" to the High Court, claiming the IPO got it wrong. By way of background, Unilever sought approval for a trademark for "Wonder Mum" with the UKIPO in 2021. DC Comics filed an opposition, noting that its trademark for Wonder Woman covered many of the same product types as in the application and then arguing that the marks were too similar. You can see the full decision by the IPO embedded below, but it sides with Unilever. With an incredibly over-tortured analysis as to how similar the marks are, the IPO concludes:

A mother or mum has had one or more children, either because she gave birth to them or has brought up children, performing the role of their mother or mum. I consider that to characterise the word ‘mum’ as a subset of the word ‘woman’ and, on this basis, to conclude that they are highly similar is syllogistic reasoning. A woman is a human adult who was born female or who identifies as female. The word ‘woman’ does not tell one anything about relationships with others. In contrast and by definition, the word ‘mum’ means that that person has a particular relationship with another, or others. Its conceptual impact is one of a particular relationship with children, whereas the conceptual impact of ‘woman’ is that it informs others as to the gender identity of an adult human. Whilst both nouns denote a female, many women have had no children, but all mums have had or brought up children.

It went on from there, with the IPO ultimately deciding that there was no likelihood of confusion. The opposition therefore failed. Again, this is pretty common sense stuff. Nothing in Unilever's use referenced Wonder Woman in any way at all. The idea here was to create a brand that celebrated hard-working moms. While Wonder Woman did apparently have a comic-child with Superman... you know what, I'm not going to even finish that stupid sentence because this is all very dumb.

And, yet, DC Comics wants to take that dumb now to the High Court.

DC is now appealing the decision at the High Court in London, claiming the IPO's ruling was 'perverse and unreasonable'.

Lawyers for the comic also argue that the cosmetics line would have damaging consequences and would allow 'anyone to release a Wonder Woman movie or comic', claiming 'Mum' is a subset of the word 'Woman'.

That, of course, is not how copyright or trademark laws work. The IPO granting a trademark on "Wonder Mum" doesn't suddenly make it legal for anyone to go make a Wonder Woman movie just by changing the name to Wonder Mum. That's beyond silly. Silly enough that Unilever's lawyers found the time to take a few shots of their own at DC Comics.

Denise McFarland, for Unilever, said there is no risk of the public muddling the two characters, particularly due to Wonder Woman's 'distinctive and unvarying features' - including her minimalistic' costume complete with high boots, a corset, and lasso and shield.

Ms McFarland added that, if DC's arguments about 'conceptual similarity' were correct, then using phases such as 'Wonder Aunt' and 'Wonder Niece' would also have to be banned.

Frankly, I wouldn't put it past DC Comics to try to do just that. But in the meantime, hopefully the High Court will slap DC Comics down yet again on this one.

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YouTube's Content ID System Flags, Demonetizes Video Of Cat Purring

from the purrrrfect dept

YouTube's Content ID automated copyright system sucks. There, I said it. Any review of the different posts we've done specifically on the topic of Content ID can only leave you with one impression: the system doesn't work. Not that it never works, of course, but when you build a system that is designed specifically to allow 3rd parties to take down speech content, that system had damned well better not be wide the hell open for abuse or laughable errors. Well, guess what? You've got your music labels getting works taken down that were specifically designed not to not be infringing, news organizations managed to claim their own live streams as copyright infringing, and music labels being able to demonetize videos of a guy singing public domain Christmas carols. It's all very stupid, very much the tip of the iceberg, and very much an indication that Content ID, in its current state, is broken.

What's that, you say? You need more? Fine, a guy uploaded videos of his cat purring and those got claimed by two different labels as infringing on their copyrights.

YouTube's automated takedown tool is known for its flaws, but this week it crossed a line by attacking a purring cat. According to YouTube's Content-ID system both EMI Publishing and PRS own the rights to a 12 second purring loop. Last March, YouTube user Digihaven uploaded one hour of video loops featuring his cat Phantom, purring, as cats do. The video didn’t go viral but appealed to a niche public, and more recently also two major music publishers.

Nearly a year after the video was posted Digihaven was informed by YouTube that Phantom is “pirate” purring. Apparently, part of the 12 second loop belongs to EMI Music Publishing and PRS.

Yes, this is sort of funny, but only after you've encountered so many Content ID problems just like this that you become dead inside, like me. I've made statements like this before, but I'll repeat it again: your automated copyright system doesn't have to be perfect, but if your system is so flawed that a 12 second video of a cat purring can be flagged by multiple music labels then your system sucks so badly that you need to completely start from scratch on a new one.

Now, I've done some haphazard searching for songs entitled "Focus" by artists on the EMI label and, frankly, I gave up. There are a ton of search results for songs that include that word in their titles. That being said, I'm fairly certain that EMI doesn't have a band with a song that is 12 seconds of a cat purring or, if that in fact is a thing, that such a video would be copyrightable. In other words, either way, EMI and PRS should not be monetizing Phantom the Cat's musical stylings.

“I’m sure EMI/PRS made Phantom a sad kitty. It seems like companies such as EMI are pirating ads on people’s legit videos, so I’m wondering if they apologize to, or reimburse people for those false claims,” he tells TF.

Hoping to clear his cat’s name Digihaven decided to file a dispute. This was partially successful, as EMI lifted its claim shortly before publication of this article.

Which, absurdly, means now Phantom just has to figure out what PRS' problem is.

Or, hey, maybe we could all just admit together that Content ID in its current form doesn't work and should be done away with in some organized and planned fashioned. Replace it with a better automated system. Replace it with more humans doing moderation. Admit that content moderation at scale is completely impossible and stop trying.

Anything would be better than living under a automated system we all know sucks.

65 Comments

Danish Court Confirms Insane 'Little Mermaid' Copyright Ruling Against Newspaper Over Cartoon

from the under-the-'c' dept

If you haven't been a long time Techdirt reader, you'll probably hear me say that there is a copyright infringement court case in Denmark and immediately wonder, "Yeesh, what did Disney do now?" But this is not a story about Disney. This is a story about the heirs of Edvard Eriksen, creator of a bronze statue of The Little Mermaid, inspired by the classic Hans Christian Andersen fairy tale, and their inability to let anyone in any way depict the statue or anything similar without being accosted in copyright actions. Most of the bullying actions by Eriksen's heirs have been, unbelievably, against other towns throughout the world for creating their own Little Mermaid statues: Greenville, Michigan and the Danish city of Asaa for example.

But less known are all the times Eriksen's heirs have gone after publications for showing pictures or other depictions of the statue. I won't pretend to be an expert in Danish copyright law, but if that country's laws are such that a newspaper or magazine cannot show a picture of one of the country's most famous landmarks, then that law is silly and should be changed or amended. Lest you think I must have this wrong, you can see a recent story of, not one, but two courts ruling that a newspaper must compensate Eriksen's heirs for a cartoon that depicted the statue on its pages.

An appeals court in Denmark has increased the compensation a newspaper was ordered to pay for violating the copyright of Copenhagen's The Little Mermaid statue with a cartoon depicting the bronze landmark as a zombie and a photo of it with a facemask.

The Berlingske newspaper published the cartoon in 2019 to illustrate an article about the debate culture in Denmark and used the photo in 2020 to represent a link between the far right and people fearing COVID-19.

For those of us reading this news in America, as well as many other nations, this all looks completely laughable. This is purely free speech stuff, protected in America by the First Amendment. Even getting past that, a cartoon of a statue is not a recreation of that statue, therefore copyright wouldn't even really apply. Plus it's parody and being used for commentary. Nothing about this makes sense.

And, yet, it must in Denmark because this 2nd court not only affirmed the ruling of the lower court but actually increased the compensation the newspaper was ordered to pay Eriksen's heirs.

Both were found to be infringements of the Danish Copyright Act. Copenhagen’s district court ordered the newspaper in 2020 to pay the heirs of Danish sculptor Edvard Eriksen 285,000 kroner ($44,000) in compensation. The appeals court on Wednesday raised the amount to 300,000 kroner ($46,000).

In a statement, the Eastern High Court in the Danish capital agreed with the lower court that “there was a violation of copyright" in the newspaper's actions. It did not give a reason for increasing the compensation amount but noted that Berlingske is a commercial venture since it wants to sell newspapers.

Again, this is all absurd. If the above rulings truly do comport with Danish copyright law, then all that suggests is that there needs to be an active movement in Denmark to amend the law. And, just to make this all the more frustrating, the copyright protections in Denmark are familiar: 70 years after the death of the author. In this case, that means Eriksen's heirs will only have this ability to bilk others for cash payments for the statue for another seven years.

348 Comments

Yes, It Really Was Nintendo That Slammed GilvaSunner YouTube Channel With Copyright Strikes

from the obviously dept

Well, for a story that was already over, this became somewhat fascinating. We have followed the Nintendo vs. GilvaSunner war for several years now. The GilvaSunner YouTube channel has long been dedicated to uploading and appreciating a variety of video game music, largely from Nintendo games. Roughly once a year for the past few years, Nintendo would lob copyright strikes at a swath of GilvaSunner "videos": 100 videos in 2019, a bit less than that in 2020, take 2021 off, then suddenly slam the channel with 1,300 strikes in 2022. With that last copyright MOAB, the GilvaSunner channel has been shuttered voluntarily, with the operator indicating that it's all too much hassle.

Well, on the internet, and in our comments on that last post, there began to be speculation as to whether or not it was actually Nintendo behind all of these copyright strikes... or an imposter. Those sleuthing around found little tidbits, such as the name used on the strike not matching up to the names displayed in the past when Nintendo has acted against YouTube videos.

It was... strange. Why? Well, because it looked like many people going out and trying to find a reason to believe that Nintendo wasn't behaving exactly as anyone who had witnessed Nintendo's behavior would expect. If this was someone impersonating Nintendo with these actions, it was utterly indistinguishable from how Nintendo would normally behave. Guys, they do this shit all the time.

And this time too, as it turns out. You can hear it straight from YouTube's mouth.

This is where I will stipulate for the zillionth time that Nintendo is within it's rights to take these actions. But we should also stipulate that the company doesn't have to go this route and the fact that it prioritizes control of its IP in the strictest fashion over letting its fans enjoy some video game music should tell you everything you need to know.

In the meantime, to the internet sleuths: I appreciate your dedication to either Nintendo or to simply digging into these kinds of details for funsies or whatever. That being said, as the old saying goes, if you hear the sound of hooves, assume it's a horse and not a zebra.

4 Comments

Apple Opposes Trademark For Indie Film 'Apple-Man' Claiming Potential Confusion

from the billable-hours dept

When it comes to silly trademark disputes, Apple has come up for discussion many, many times. The mega-corporation is a jealous defender of all of its IP, but most of our stories have focused on its disputes with companies that created logos that involve any sort of apple or other fruit. Sometimes it's not even companies that Apple is fighting with, but entire foreign political parties. The idea here is that when it comes to logos or trade dress, Apple appears to think that it owns all the apples.

But what about the word itself? Well, the company can get absurd at that level, too. For instance, Apple recently opposed the trademark application for a Ukrainian filmmaker's indie opus, entitled Apple-Man.

Apple in December filed an opposition with the U.S. Patent and Trademark Office seeking to block Ukrainian director Vasyl Moskalenko’s trademark application for his indie project. The world’s most valuable company argues that viewers will mistakenly believe Apple-Man is associated with Apple and that the movie will dilute its brand.

“The Apple Marks are so famous and instantly recognizable that the similarities in Applicant’s Mark will overshadow any minor differences and cause the ordinary consumer to believe that Applicant is related to, affiliated with, or endorsed by Apple,” states the filing, which is embedded below. “Consumers are likely to assume, erroneously, that Applicant’s Mark is a further extension of the famous Apple brand.”

Alright, so let's stipulate the following right up front: Apple's trademark on its name is no doubt famous. That affords the company far more protection on that mark than your normal everyday trademark. One of the main differences, however, is that Apple can enforce the mark not only for customer confusion, but for things like tarnishment, if someone used the term in a way that could be seen as disparaging to Apple.

In the quote above, Apple is going the traditional confusion route in its opposition. But that's unbelievably silly. This is an indie film that nobody is going to associate with Apple. It's also, because it's a film, entitled to First Amendment protections that are almost certain to override any trademark concerns, particularly those as flimsy as Apple's.

Elsewhere, Apple argues for dilution.

Apple also argues the trademark, if granted, will “cause dilution of the distinctiveness of the famous Apple Marks by eroding consumers’ exclusive identification of the Apple Marks with Apple.”

But consumers don't have an exclusive identification of the Apple Marks with Apple. That should be obvious on its face. Lots of companies, for instance, use the term "Apple" in branding for... you know... apples. There have also been other films, more specifically, that make use of the word "apple" in their names. There is one called The Apple. And another called Apples. So what does Apple's lawyers see as the difference between those films use and Apple-Man? ¯\_(ツ)_/¯

Jeremy Eche of JPG Legal, who represents Moskalenko, argues “apple” isn’t a proprietary word and viewers won’t be misled by the movie.

“This is ridiculous,” he tells The Hollywood Reporter. “They really want to own the word ‘Apple’ in every industry.”

Eche contends Apple is a “trademark bully” exploiting the system.

Of that there can be little doubt. So why is Apple even bothering with any of this? Well, outside council is involved, so the term "billable hours" immediately leaps to mind. But Apple's history of trademark bullying also doesn't exactly preclude a haphazard and capricious enforcement of its trademarks. The lawyers saw this one, so they went after it.

And before anyone wants to jump in the comments and point out that Apple makes and provides film content via AppleTV and iTunes... don't. Doing so does not suddenly mean the company can keep a filmmaker from making a film that uses the word in its title, nor for trademarking the name of that film.

24 Comments

Consolidation Strategies Emerge For The Big 3 In Gaming: Nintendo Looks Like It Doesn't Want To Play

from the the-inside-game dept

We've been talking a bit about industry consolidation through mergers and acquisitions (M&As) in the video game industry as of late. The impetus for that discussion has been a series of high-profile acquisitions for several notable companies, namely Microsoft and Sony. Microsoft acquired Zenimax for $7 billion and Activision Blizzard King for a bonkers $69 billion recently, while Sony jumped into the game by acquiring Bungie for $3.6 billion. Of interest for these pages is the different approaches these companies have taken with these acquisitions. Microsoft hemmed and hawed about whether it would start building Microsoft exclusivity for products from its acquisitions, eventually landing on very much embracing exclusivity, while Sony took a much more hands-off approach and stated plainly that Bungie games would still be cross-platform. For those of us interested in digital and technology economies and business models, this is interesting stuff.

But there is a name missing here. The traditional "Big 3" in gaming has long been Microsoft, Sony, and Nintendo. Well, if you like real-world experiments when it comes to business strategies, this looks like it's going to get even more fascinating, as Nintendo is making noises about going an entirely different route.

While Xbox and Sony are entering an acquisition arms race, Nintendo isn’t so eager to snap up a slew of game studios. In a recent investors’ meeting, Nintendo president Shuntaro Furukawa was asked about acquiring game companies—a timely question, that’s for sure.

“Our brand was built upon products crafted with dedication by our employees, and having a large number of people who don’t possess Nintendo DNA in our group would not be a plus,” Furukawa replied, as reported by Bloomberg and Reuters.

Now, this shouldn't exactly come as a shock to anyone who knows the industry and how Nintendo operates. Whatever I might want to say in my series of posts about how "Nintendo hates you", the company has also built a successful business in the space that relies on first-party game titles and franchises compared with Sony and Microsoft. Whatever success those others have had, for instance, Microsoft and Sony simply don't have a version of the Super Mario Bros. franchise. Nintendo has several of these: Super Mario Bros., Zelda/Link, Star Fox, etc. So Nintendo has always been less reliant on 3rd party titles compared with its competitors.

But the open question is whether this more insular focus will work in the post-pandemic period where industry consolidation is not just for the video game industry, but for many others. The Harvard Business Review had a study released in 2021 that predicted what many others have as well: the mid- and post-pandemic economic space will be one that heavily incentivizes mergers and acquisitions. Consolidation is the order of the day/year.

So now we have three distinct strategies from the Big 3 of the video game industry: Microsoft will do M&As and try the exclusivity route, Sony will do M&As and be more open and permissive or cross-platform releases, and Nintendo will simply choose largely to not play this game at all.

At its core, Nintendo is not an enterprise built on corporate consolidation. It’s a company that makes hardware and games for said hardware. That is etched in its DNA.

And now we get to sit back and see how that works in a post-pandemic world.

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GilvaSunner YouTube Channel Shuts Down Due To Copyright Strikes From Nintendo; Pokemon Releases Music

from the sigh dept

The Nintendo vs. GilvaSunner YouTube channel saga has come to an end. It had become sort of an annual thing for Nintendo to copyright strike large numbers of videos on that channel, which mostly has "videos" consisting of beloved video game music from Nintendo titles. Over 100 videos were struck in 2019. Then another swath of videos were struck in 2020. After taking 2021 off, Nintendo struck over 1,300 of GilvaSunner's uploads a few weeks ago. Now, while we've taking pains to point out that Nintendo can do this, as it owns that IP, it certainly didn't have to go this route. There were plenty of other alternatives, including offering this music on any relevant streaming platform itself, which it has always declined to do.

Well, as I said, it's over. The GilvaSunner channel is to be shutdown due to the volume of copyright strikes it received.

Following the strike though, Gilvasunner has announced they will be deleting their channel this Friday (February 4).

Writing on Twitter, they said: “Hi everyone, after the 1300 copyright blocks from Nintendo a few days ago, the YT channel received another 2200 blocks today (with likely many more to follow). After thinking about this a lot over the past few days, I’ve decided that at this point it’s really not worth it to keep the channel up any longer, and will therefore delete the GilvaSunner YouTube channel (or what’s left of it) this coming Friday.”

I'll point out again that GilvaSunner's channel did not compete with Nintendo in any way, going all the way back to 2019. Its videos didn't replace buying Nintendo games. The channel didn't compete with legit sources for Nintendo game music, since Nintendo declined to create any such legit sources. This was, for the past 3 years, simply Nintendo trying to stamp out a resource for Nintendo fans to celebrate Nintendo music, thereby expressing and solidifying their fandom.

But when it comes to this latest round of copyright strikes, it comes with a slight sliver of a difference.

So, while this is nothing like all of Nintendo making its game music available for streaming, it's at least a step in that direction. But think about this for a moment: for 3 years Nintendo has been warring with a YouTube channel celebrating its music without offering any real streaming alternative -- yes, some game music has been available to buy on iTunes for some time, but that's not the same thing -- and once the company managed to kill off that channel, one of its properties releases a site to both stream and download for free some of that same music.

Is that not both insane and annoying? Nintendo didn't have to release this site; GilvaSunner was doing it for free. But Nintendo is so in love with controlling all of its IP that this is where we somehow landed.

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Nintendo Hates You: More DMCA Takedowns Of YouTube Videos Of Game Music Despite No Legit Alternative

from the mine-mine-mine dept

I guess this is nearly an annual thing now. In 2019, we talked about how one YouTuber, GilvaSunner, had over one hundred YouTube videos blocked by Nintendo over copyright claims. GilvaSunner's channel is dedicated to video game music, mostly from Nintendo games. Those videos consist of nothing but that music, as in no footage of video game gameplay. Nintendo, which certainly can take this sort of action from an IP standpoint, also doesn't offer any legit alternative for fans to enjoy this music on any streaming service or the like. Then, in 2020, GilvaSunner had another whole swath of videos consisting of game music blocked by Nintendo over copyright claims. Still no legit alternative for those looking to enjoy music from Nintendo's celebrated catalogue of games.

Well, if Nintendo decided to take 2021 off from this annual project, it certainly has more than made up for it by sending copyright strikes to GilvaSunner's channel at a volume of over 1,300 in one day.

Yesterday morning, YouTuber GilvaSunner posted a tweet explaining that Nintendo had sent them and their channel over 1300 “copyright blocks.” The channel, which is extremely popular, uploads full video game soundtracks, letting fans easily listen to their favorite Kirby or Mario track via YouTube.

After all the copyright blocks went through and the dust settled, GilvaSunner shared a list of all the soundtracks that Nintendo had targeted and blocked from the site. It’s a long list.

A very long list, as you might expect. Now, a couple of items of note here. First, GilvaSunner has insisted that he is not shocked that Nintendo continues to take these actions, nor does he claim that it isn't within its rights to take them. But he's also not going to stop voluntarily.

“I’m also not angry or surprised that Nintendo is doing this, but I do think it’s a bit disappointing there is hardly an alternative,” explained GilvaSunner in a tweet thread from 2020. “If Nintendo thinks this is what needs to be done (to set an example), I will let them take down the channel. It is their content after all.”

Do as you please, in other words, Nintendo. That being said, let's also note that the channel doesn't monetize any of these videos. GilvaSunner doesn't make money off of Nintendo's music.

And neither does Nintendo because, frustratingly, the company still hasn't made this music available on any of the music streaming services we all know and love. Nor has the company announced any plans to. In other words, Nintendo isn't going to provide you with a way to enjoy this music and it is going to shut down anyone who does.

In that scenario, this isn't Nintendo protecting its monetary interests. It's simply the company deciding to take its musical ball and go home. Why? Because Nintendo hates you, that's why.

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Moar Consolidation: Sony Acquires Bungie, But Appears To Be More Hands Off Than Microsoft

from the moar!!! dept

A couple of weeks back we asked the question: is the video game industry experiencing an age of hyper-consolidation? The answer to that increasingly looks to be "yes". That post was built off of a pair of Microsoft acquisitions of Zenimax for $7 billion and then a bonkers acquisition of Activision Blizzard King for roughly $69 billion. Whereas consolidations in industries are a somewhat regular thing, what caused my eyes to narrow was all of the confused communications coming out of Microsoft as to how the company would handle these properties when it came to exclusivity on Microsoft platforms. It all went from vague suggestions that the status quo would be the path forward to, eventually, the announcement that some (many?) titles would in fact be Microsoft exclusives.

So, back to my saying that consolidation does seem to be the order of the day: Sony recently announced it had acquired game studio Bungie for $3.6 billion.

Sony Interactive Entertainment today announced a deal to acquire Bungie for $3.6 billion, the latest in a string of big-ticket consolidation deals in the games industry.

After the deal closes, Bungie will be "an independent subsidiary" of SIE run by a board of directors consisting of current CEO and chairman Pete Parsons and the rest of the studio's current management team.

This is starkly different than the Microsoft acquisitions in a couple of ways. Chief among them is that Bungie will continue to operate with much more independence than those acquired by Microsoft. While Sony obviously wants to recoup its investment in Bungie, the focus there appears to be on continuing to make great games using existing IP, building new IP, and creating content for that IP that expands far beyond just the video game publishing space.

What does not appear to be part of the plan are PlayStation exclusives, as explicitly stated in this interview with both Sony Interactive Entertainment CEO Jim Ryan and Bungies' CEO Pete Parsons.

In an interview with GamesIndustry.biz, Sony Interactive Entertainment CEO Jim Ryan says that Destiny 2 and future Bungie games will continue to be published on other platforms, including rival consoles. The advantages Bungie offers Sony is in its ability to make huge, multiplatform, live-service online games, which is something the wider organisation is eager to learn from.

"The first thing to say unequivocally is that Bungie will stay an independent, multiplatform studio and publisher. Pete [Parsons, CEO] and I have spoken about many things over recent months, and this was one of the first, and actually easiest and most straightforward, conclusions we reached together. Everybody wants the extremely large Destiny 2 community, whatever platform they're on, to be able to continue to enjoy their Destiny 2 experiences. And that approach will apply to future Bungie releases. That is unequivocal."

That's about as firm a stance as you're going to get in this industry. And it is a welcome sign in a few ways. Primarily, Bungie fans will be pleased to know the acquisition doesn't mean they'll lose out on game releases if they don't own a PlayStation. But perhaps just as important is that this demonstrates another route big gaming companies can go with these acquisitions.

As I stated in previous posts on the Microsoft acquisitions: consolidation doesn't have to be a bad thing, but when it results in less customer choice, that's not great. That Sony is doing this differently is a good sign.

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YouTube Dusts Off Granular National Video Blocking To Assist YouTuber Feuding With Toei Animation

from the 'bout-time dept

Hopefully, you will recall our discussion about one YouTuber, Totally Not Mark, suddenly getting flooded with 150 copyright claims on his YouTube channel all at once from Toei Animation. Mark's channel is essentially a series of videos that discuss, critique, and review anime. Toei Animation produces anime, including the popular Dragon Ball series. While notable YouTuber PewDiePie weighed in with some heavy criticism over how YouTube protects its community in general from copyright claims, the real problem here was one of location. Matt is in Ireland, while Toei Animation is based out of Japan. Japan has terrible copyright laws when it comes to anything resembling fair use, whereas Ireland is governed by fair dealing laws. In other words, Matt's use was just fine in Ireland, where he lives, but would not be permitted in Japan. Since YouTube is a global site, takedowns have traditionally been global.

Well, Matt has updated the world to note that he was victorious in getting his videos restored and cleared, with a YouTube rep working directly with him on this.

But shortly after, as Fitzpatrick revealed in a new video providing an update on the legal saga, someone “high up at YouTube’’ who wished to remain anonymous, reached out to him via Discord. Fitzpatrick said the contact not only apologized for his situation not being addressed sooner, but divulged a prior conflict between YouTube and Toei regarding his videos fair use status.

“I’m not going to lie, hearing a human voice that felt both sincerely eager to help and understanding of this impossible situation felt like a weight lifted off my shoulders,” Fitzpatrick said.

Hey, Twitch folks, if you're reading this, this is how it is done. But it isn't the whole story. Before the videos were claimed and blocked, Toei had requested that YouTube manually take Matt's videos offline. YouTube pushed back on Toei, asking for more information on its requested takedowns, specifically asking if the company had considered fair use/fair dealing laws in its request. Alongside that, YouTube also asked Toei to provide more information as to what and why Matt's videos were infringing. Instead of complying, Toei utilized YouTube's automated tools to simply claim and block those 150 videos.

The following week, a game of phone tag ensued between Toei, the Japanese YouTube team, the American YouTube team, Fitzpatrick’s YouTube contact, and himself to reach “some sort of understanding” regarding his copyright situation. Toei ended up providing a new list of 86 videos of the original 150 or so that the company deemed should not remain on YouTube, a move Fitzpatrick described as “baffling” and “inconsistent.” Toei, he concludes, has no idea of the meaning of fair use or the rules the company wants creators to abide by.

“Contained in this list was frankly the most arbitrary assortment of videos that I had ever seen,” he said. “It honestly appeared as if someone chose videos at random as if chucking darts at a dart board.”

While Matt regained control of his videos thanks to his work alongside the YouTube rep, he was still in danger of Toei filing a lawsuit in Japan that he would almost certainly lose, given that country's laws. Fortunately, YouTube has a method for blocking videos based on copyright claims in certain countries for these types of disputes. The Kotaku post linked above suggests that this method is brand new for YouTube, but it isn't. It's been around for a while but, somewhat amazingly, it appears to have never been used specifically when it comes to copyright laws in specific countries.

YouTube’s new copyright rule allows owners like Toei to have videos removed from, say, Japan’s YouTube site, but said videos will remain up in other territories as long as they fall under the country’s fair use policies. To have videos removed from places with more allowances for fair use, companies would have to argue their cases following the copyright laws of those territories.

And so Matt's review videos remain up everywhere except in Japan. That isn't a perfect solution by any stretch, but it seems to be as happy a middle ground as we're likely to find given the circumstances. Those circumstances chiefly being that Toei Animation for some reason wants to go to war with a somewhat popular YouTuber who, whatever else you might want to say about his content, is certainly driving interest publicly in Toei's products, for good or bad. This is a YouTuber the company could have collaborated with in one form or another, but instead it is busy burning down bridges.

“Similarly to how video games have embraced the online sphere, I sincerely believe that a collaborative or symbiotic relationship between online creators and copyright owners is not only more than possible but would likely work extremely well for both sides if they are open to it,” Fitzpatrick said.

That Toei Animation is not open to it is the chief problem here.

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Another 'Wordle' App Mixup Occurs, Only This Time Recipient Of Undue Rewards Builds Good Will

from the word-up dept

This post was written before the news today that the NY Times was buying Wordle. It will be interesting to see if suddenly "IP issues" start becoming a bigger deal to the NY Times than they were to the original developer...

Just a week or so back, we discussed how one man ripped off Wordle, a browser-based Mastermind style game who's creator insists be free and unmonetized. In that instance, Zach Shakked copied the game with only a few minor additional features and released it as an app going by the same name, Wordle, only to find that the entire internet decided this was a dick move and helped get the app delisted from Apple and Google stores. That was a story about how one bad actor got dealt with without anyone having to go down intellectual property or legal routes.

Well, here we are again with yet another unaffiliated Wordle app syphoning off money from people who think they're getting the browser game in an app... only this time the recipient of that undue income is building up a ton of goodwill by not being a jerk about it.

As spotted by GR+, Josh Wardle’s Wordle has led to squillions of confused players (hello!) accidentally downloading a five-year-old app with the same name to their mobile devices. The result being, creator of the other Wordle ended up receiving close to 200,000 downloads in a couple of days. More than it had received in total in the previous five years. And in turn, generating him a whole bunch of advertising revenue.

Steven Cravotta created that app five years ago as a teenager almost strictly to practice his coding skills. When he woke up the other day to suddenly find advertising revenue pouring in from the since-forgotten app, he didn't simply sit back and start counting all the dollar signs floating before his eyes. Instead, he started tweeting about how weird this all was and how much he wishes that the media did a better job of differentiating between Wordle the browser game and any Wordle mobile app.

If you follow that tweet-thread all the way through, you'll notice a couple of things. Cravotta spends a lot of time pointing out how weird this all is. Then he mentions that he is reaching out to Wordle creator Josh Wardle to find out what his preferred charity is so he can donate all of this money to the cause of his choice. The two apparently did speak and landed on Boost! West Oakland, an organization that empowers youths in Oakland, California through school tutoring. And, while he was at it, he pointed out that his more recent and professional apps are available.

In other words, he acted reasonable and human, recognizing that this was all a bunch of confused people accidentally downloading his game. As a result, just as the internet went off on what a jerk the Wordle copycat guy seemed to be, so too is it and a bunch of mass media sites reporting on how human and awesome Cravotta is. This is leading more people to his current apps.

Sometimes a little public reaction is all you need, rather than worrying about IP.

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Succulent Arrangement TikToker Has 'JustSuccIt' Trademark Application Opposed By Nike

from the succs-to-be-you dept

As you might expect, Nike often finds itself involved in intellectual property stories. To be fair, the company has been on both sides of the IP coin. There are plenty of stories of Nike playing IP bully: the whole Satan Shoes dustup with MSCHF, its lawsuit happy practice when it comes to counterfeits, and so on. But the company has also found itself on the receiving end of IP action, sometimes very much deserved, sometimes not so much.

Among the company's most guarded IP is the trademark the company has on its famous motto: JUST DO IT. Nike has gone after companies, typically during the trademark application process, whenever there is an attempt to trademark a "Just [word] it" phrase. Most of that action has centered around apparel or athletic companies. But now, a business that produces succulent plant arrangements largely advertised on TikTok has found its trademark application for "JustSuccIt" opposed by Nike.

Andrea Galbreath, the owner of a California-based succulent business, says Nike is opposing the trademark she owns for her company, JustSuccIt. The shoe and athleticwear giant said it opposes her trademark because JustSuccIt could be “damaging to their brand,” according to a TikTok posted by Galbreath on Saturday.

“Nike is comin’ after me!” she says in the TikTok. “I’m just a small business in San Juan Capistrano, trying to plant happiness in the lives of others. So I’m doing my best to get ahead of this. Can you please help me tell Nike to leave me alone?”

Alright, let's stipulate something: Nike's slogan "JUST DO IT" is absolutely a famous trademark. That's important here, because famous marks are afforded way more protection than a standard mark. Because it is a famous mark, and deservedly so, Nike can go beyond the standard likelihood of confusion case for opposing the mark. You will notice that public confusion is not what Nike is complaining about above. Instead, it seems to be going with tarnishment as the reasoning, based on the claim that JustSuccIt would be damaging to its brand.

There is another recognized federal cause of action in the U.S. for famous trademarks known as dilution by tarnishment. This refers to use of a famous trademark in connection with goods or services of poor quality or of an unsavory nature. Dilution can occur even if the two companies are not competitors and there is no likelihood of confusion.

All very true and I suppose Nike's point here is that "JustSuccIt" sounds phonetically identical to "Just suck it", which could be construed as unsavory... except that it isn't in this case. The business sells arrangements made from succulents, a type of plant. I'm not particularly convinced that the first thing that would leap to most people's minds upon hearing "JustSuccIt" is even Nike's slogan. It certainly wasn't mine, though I admit to being wildly unsavory myself.

The product or service in this case is not unsavory. The applied for trademark really isn't either, though I imagine Nike will play heavily on potential interpretations of it that are of an unsavory nature. Still, that's a hell of a fairly miniscule reason to oppose the trademark. And, if that's the approach, it essentially acknowledges that there isn't any concern about public confusion in the marketplace, nor the two companies competing against one another.

So I guess the open question is whether the USPTO will consider "JustSuccIt" unsavory or not.

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Nintendo Sics Lawyers To Take Down Fan-Made FPS 'Pokemon' Game Footage

from the nintendon't dept

At this point, posts about Nintendo getting fan-made games or content removed from the internet over IP concerns are evergreen. Nobody should be surprised by this shit any more, though you should still be either very angry about it, or at least disappointed. The company is almost a caricature of an IP maximalist company: anything and everything that even comes close to touching its IP gets thrown at the company lawyers to deal with. It's bad enough to be parodied by the general public. This is where I remind you that companies like Nintendo have a wide spectrum of avenues for responding to fanworks. Depending on the IP in question, the company could do any of the following besides going legal: let fans have their fun, issue zero-dollar or cheap licenses to fans to legitimize their work, or incorporate fanworks into official releases by either licensing or employing these fans. Plenty of other companies have taken these routes, or others, and have survived just fine. Nintendo never does this.

And so, here we are again with Nintendo getting footage of an unreleased fan-game disappeared from the internet, citing copyright. In this instance, one fan made a first person shooter game in the Unreal Engine so you can go hunting Pokémon as violently as possible.

For the past month, Reddit user Dragon_GameDev2 has been working on a side project imagining a PC Pokémon game, built using Unreal Engine, that you played in first-person.

While your thoughts may now be drifting towards something resembling Pokemon Snap, Dragon_GameDev2 had more violent plans for this game. He instead showed off some videos where players were dropped into a Pokémon-filled landscape, given modern firearms, and set free to hunt (and defend themselves from) as many of the pocket monsters as they liked.

Now, were it not for Nintendo's reputation, someone might be able to convince me that the bloody, violent murder of video game Pokémon might have been the impetus for Nintendo's actions here. After all, the Pokémon series is very much not in the style of Doom or Quake. But that reputation does exist and I don't believe for a second that the violence depicted here has anything to do with the takedowns.

Those takedowns, by the way, are not of the game itself. Rather, images and videos of the game being played that were shared on the internet is what was disappeared. Can Nintendo do this legally? Probably, though I could certainly make a fair use argument for it. Perhaps not a perfect one, but an argument nonetheless. But again, the question isn't so much can Nintendo do stuff like this, but should it?

This sucks, just like it always does, because unlike many other major international companies, Nintendo seems utterly unwilling—or even unable—to differentiate between commercial projects that infringe on their copyrights and fan-made playthings that are free and made for fun.

That, of course, is nonsense. Nintendo absolutely can make this differentiation. It chooses not to. Don't take that agency away from a company that worked quite hard to build a reputation for itself for absolutely hating its fans' attempt to express their fandom.

Nintendo isn't confused. Nintendo hates you. Or, at least, it hates what some of you do in the name of your love for the company.

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Google Drive's Autodetector For Copyright Infringement Is Locking Up Nearly Empty Files

from the whoopsie dept

We've talked at length about the issues surrounding automated copyright infringement "bots" and how often those bots get the primary question they're tagged with wrong. Examples of this are legion: Viacom's bot takes down a Star Trek panel discussion, all kinds of bots disrupted the DNC's livestream of its convention, and one music distributor's bot firing off DMCA notices to, well, everyone. Google itself has reported that nearly 100% of the DMCA notices it gets are just bot-generated buckshot.

But Google isn't the savior here either. The company also uses automated systems for detecting copyright infringement and, at least in the case of Google Drive, those automated systems occasionally suck out loud at their job.

This week, Assistant Professor at Michigan State University, Dr. Emily Dolson, Ph.D. reported seeing some odd behavior when using Google Drive. One of the files in Dolson's Google Drive, 'output04.txt' was nearly empty—with nothing other than the digit '1' inside it.

But according to Google, this file violated the company's "Copyright Infringement policy" and was hence flagged. And what's worse is, the warning sent to the professor ended with "A review cannot be requeste for this restriction."

If your bot thinks a single digit is somehow copyright infringement, then your bot is a bad bot and should be taken behind the woodshed and humanely sent to bot-heaven where it can run and frolic with all the other bots. Now, to be fair, there is an open question in this case as to whether the filepath names that were chosen somehow were what was getting flagged. And, sure, maybe that happened. But it doesn't really change the point: a bot thought a file that contained a single integer was copyright infringement.

That being said, other Drive users have reproduced this, calling into the question the filepath theory.

Dr. Chris Jefferson, Ph.D., an AI and mathematics researcher at the University of St Andrews, was also able to reproduce the issue when uploading multiple computer-generated files to Drive. Jefferson generated over 2,000 files, each containing just a number between -1000 and 1000.

The files containing the digits 173, 174, 186, 266, 285, 302, 336, 451, 500, and 833 were shortly flagged by Google Drive for copyright infringement.

Again, this sucks. For what it's worth, Google has finally responded and, despite the notices indicating there was no way to dispute the bot's findings, has been sharing out links to do exactly that. But that isn't really the point. This is base-level stuff here: having a system that operates this poorly means you have a system that never should have been in production to begin with. Particularly, frankly, when that system is operating as personal file storage for many, many people.

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Deja Vu All Over Again: Microsoft, Sony Making Vague Statements About Exclusivity In Activision Titles

from the ironic-surprised-face dept

And here we go again. When Microsoft acquired Zenimax/Bethesda last year, the first question that leapt to most people's minds was whether or not Microsoft would wall off long-running franchises from Bethesda with exclusivity to Xbox and/or PC platforms. Those looking for answers were surely initially confused by conflicting statements from both sides of the deal, which was then "clarified" later by Microsoft execs saying that titles would be "first/better on Microsoft platforms" but not exclusive. That was then clarified further by Microsoft's actual actions, which was to announce that the next Elder Scrolls game would indeed be a PC/Xbox exclusive.

Well, as we were just discussing, Microsoft is finalizing its biggest ever acquisition into the game publishing market with a purchase of Activision Blizzard and King Digital Entertainment, and all the same questions immediately leapt to everyone's mind. And, because past is prologue, the players in this deal and those impacted by it are churning out vague, unclear statements on what this means for exclusivity for franchises from those studios.

We'll start with what Sony said in comments to The Wall Street journal.

“We expect that Microsoft will abide by contractual agreements and continue to ensure Activision games are multiplatform,” a Sony spokesman told The Wall Street Journal today. Read one way, it seems like confirmation that the owner of PlayStation thinks nothing will change. Read another, it means that existing Activision games will remain multiplatform, but doesn’t provide any clarity on what might happen to future projects that haven’t even been announced yet.

Indeed. And, frankly, Sony can expect anything it likes, but Microsoft probably didn't spend $69 billion on these studios without its own plans in place. Whether that includes exclusivity... who knows? But the company has its plans and Sony's expectations probably don't factor into them all that much.

Then came the public comments by Xbox's Phil Spencer. Spencer was one of the Microsoft folks commenting publicly about the Zenimax acquisition, vaguely saying that Microsoft could recoup its $7.5 billion investment even by excluding non-Microsoft platforms from future games, but that, hey, maybe it wouldn't go that route. Here he is commenting on his talks with Sony.

Now the Twitter reaction to that was all sunshine and rainbows as everyone took it to mean there would be no exclusivity deals for CoD games. But go read that tweet again, because that isn't what it says at all. There are a million ways to read that tweet, including: we'll honor existing agreements for existing games by keeping them on PlayStation. Read that way, the tweet says virtually nothing about new or upcoming games. Nor anything about other Activision or Blizzard franchises. Also, there are a bunch of non-committal words sprinkled in there. Intent? I intended on losing weight after the new year. I very much did not. See how that works?

It's all very unclear, which is annoying. Microsoft knows what it wants to do and the fact that they aren't making definitive statements tells you this is probably going to follow the Bethesda track. Not everything will be exclusive, but some franchises certainly will.

According to Bloomberg’s report, “Microsoft plans to keep making some of Activision’s games for PlayStation consoles but will also keep some content exclusive to Xbox.” That could mean that Call of Duty, consistently the best-selling game every year, will remain multiplatform. Or it could mean that nearly every new Activision Blizzard game except for its free-to-play battle royale, Warzone, won’t be coming to PS5.

While industry consolidation doesn't always have to be a bad thing, this is and always has been the major concern in the gaming industry. When the makers of the platform also make the games you play on them, you're at the mercy of corporate interests as to whether you'll have access to them or not.

And whatever you think of any of this, that simply isn't how you continue to grow an exploding industry.

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