This Week In Techdirt History: August 4th – 10th

Techdirt

from the that-was-that dept

Five Years Ago

This week in 2019, “free speech defender” Devin Nunes filed more lawsuits against critics and vowed they weren’t the last, the New York Times joined the parade of media organizations that were totally and completely misrepresenting Section 230, and the recording industry was reaping what it sowed in the world of copyright run amok. An oversight report showed the NSA did not delete all the phone records it claimed it had, the European Court of Justice released rulings on three big copyright cases, and a judge was not impressed with the DOJ’s attempt to claim presidential tweets and orders didn’t mean anything. We also wrote a piece wondering why our first response to mass shootings is to talk about censorship.

Ten Years Ago

This week in 2014, comic artist Randy Queen began a crusade with a bunch of DMCA takedown notices targeting critical blog posts, which he then followed up by claiming that a post about this copyright abuse was defamatory, and then kept digging by issuing even more DMCA takedowns. An appeals court used a bogus Sherlock Holmes case as an opportunity to slam copyright trolling and suggest there might be antitrust violations, the City of London Police were doing Hollywood’s bidding, and a new report challenged the idea that the IP industries rely on strong IP. This was also the week that Google ramped up its push to secure the internet by using HTTPS as a search ranking signal.

Fifteen Years Ago

This week in 2009, the debacle of the Associated Press’s attempt to DRM the news got even sillier as people discovered its text licensing system would sell licenses that it had no right to sell, while Reuters stepped up in support of linking, excerpting, and sharing. Some students were arrested for jailbreaking video game consoles, Twitter was sued for patent infringement in Texas, and Fox joined the war on Redbox. We asked why America was banning books when an unauthorized sequel to Catcher in the Rye was blocked from publication, and we looked at the growing problem of jurisdictional disputes on a borderless internet. Also, in a trend that would very much take hold, people were talking about how Facebook was starting to become uncool.

Filed Under: history, look back

US Appeals Court Sends Dispute Between French Cognac Cartel And Music Label Back To USPTO

Trademark

from the were-they-drunk? dept

You know, when you’ve written as much as I have about trademark disputes, there are times when you think you’ve seen everything, only to have the universe remind you that the depth of silliness around trademarks can always get deeper. The subject of today’s conversation is going to be a certification mark. While afforded similar protections to a trademark, they are primarily used by a third party, with permission of the owner of a trademarked product, to validate that a product meets certain agreed upon quality standards from the trademark owner. You can find some examples here, but one that is easy to understand is the Energy Star certification mark. To have an Energy Star stamp or mark included on the packaging or product of an electronic good, it must meet the Energy Star standards. Meanwhile, other related goods or services cannot use the “Energy Star” term or symbols in a way that would be confusing to the public. Make sense? Sweet.

The Bureau National Interprofessional du Cognac group, or BNIC, is a consortium in France of makers of cognac. The BNIC has a certification mark for cognac in the United States. Unless a cognac product meets certain standards, it cannot call itself cognac. Silly in my view, but not nearly as silly as when the BNIC decided to oppose a trademark application in the United States for a music label called Cologne & Cognac Entertainment merely for using “cognac” in its name. The USPTO managed to get the question on this opposition right, allowing the mark to proceed because the liquor markets and music industry markets aren’t related and the public was not going to be confused between the two.

But the BNIC appealed that decision and the appeals court, which should be investigated for drinking cognac on the job, sent this back to the USPTO stating that it had erred in its analysis for what protections the BNIC mark is afforded.

U.S. Circuit Judge Alan Lourie said that the PTO miscalculated how famous “cognac” is in a way that improperly favored the label in the office’s confusion analysis.

The office should have considered “whether or not [BNIC’s] mark was famous as an indicator of its geographic origin” – like Florida oranges, Georgia peaches or Darjeeling tea – “but it did not do so,” Lourie said.

Lourie also found that the office made mistakes in analyzing the marks’ similarity and the relatedness of the goods and services they cover, noting that several hip-hop artists have partnered with cognac brands and used “cognac” in song titles and lyrics.

This. Is. Fucking. Absurd.

For starters, as I mentioned, certification marks are for quality standards or the achievement of certain criteria. They are not geographical indicator marks, a la Champagne, which appears to be what the appeals court is referring to. Part of the problem here is that the American trademark system doesn’t have GI marks, and instead will occasionally afford GI type protections via collective marks and, sometimes, certification marks. But those really are tangential uses, with quality and standards being the primary purpose. The fact is that cognac is named after a region in France, but the mark in question is the name of the drink that is almost certainly more famous worldwide than this region. “Georgia Peaches” is different than “Cognac.” One tells you what the product is and where it came from. The other is merely the name of the product.

But, fine, perhaps you want to argue that a certification mark in this case is doing the job of what would elsewhere be a GI mark. That still doesn’t make any of this infringement. The music business is an industry entirely unrelated to the alcohol industry, as the USPTO rightly pointed out. And no amount of hip-hop artists either partnering with cognac companies or rapping about the drink in their songs is going to somehow cause the public to think that the music label has literally anything to do with a cartel of cognac makers in a region in France.

Now, I have no idea what the USPTO will do as a result of this judicial rebuke, but I sure hope to god it won’t merely roll over and rescind its previous approval for the music label’s trademark. Because the idea of the BNIC being able to police language half a world away in this manner should be plainly bonkers to anyone with a working brain.

Filed Under: 8th circuit, certification mark, cognac, likelihood of confusion, trademarks, uspto
Companies: bnic, cologne & cognac

Educate, Don’t Isolate: How To Combat Elon Musk’s Misinformation Machine

Failures

from the elon-is-not-a-nation-state dept

You may have heard that Elon Musk and the UK are fighting. And both of them are looking ridiculous.

Riots are happening across the UK in response to the stabbing deaths of three children. The background for the riots is that a bunch of shitlord agitators used Telegram to organize further nonsense on other social media channels, leading to riots over misleading claims about who was responsible. Elon Musk, as he’s been known to do, has been a gullible simp for the lies and conspiracy theories that the agitators are pushing out blaming asylum seekers and refugees, and has been not just endorsing the nonsense, but spreading it further.

Most normal people would recognize that this is not great. But there’s a question of what to do about it, and the UK seems to be choosing the worst possible approach: yelling at Elon Musk, which only enables him to pretend he’s a martyr for free speech.

I wrote a piece at the Daily Beast talking about how the UK’s response to Musk is extremely counterproductive. The key point is that the UK’s Secretary for Innovation and Technology, Peter Kyle, says they need to treat Elon as if he’s a nation state. But, as I argue in my piece, that makes no sense, in part because nation states and individuals are very different, and because the affordances for dealing with each are totally different. But, also, because it only works to Musk’s advantage here.

The different realities and the different ways that nation states and private entities can and do interact lead to very different affordances and very different outcomes.

Also, most of the interactions over the past decade were along the lines of: “you need to be better about limiting the spread of content designed to incite violence.” Often, these are situations where the companies agree and want to limit the spread of such content for their own reasons, but may just disagree on how to do so.

It’s entirely different when one of the companies is owned and operated by an individual who himself is one of the leading spreaders of that kind of content.

Most companies don’t want to be spreading that kind of information because it’s bad for their own reputation and the willingness of both advertisers and users to continue to use the platform. But, in Elon’s case, there appear to be extraordinarily different incentives at play.

As I note, Elon lives for this kind of thing, and it only fuels him:

Elon relishes fighting with certain governments (so long as they’re not run by his ideological kindred spirits among right-leaning authoritarians). Pushing or threatening Elon over this is likely to just lead him to playing “free speech martyr” as he’s done in the past. And, to some extent, he wouldn’t be wrong.

The key is understanding that the UK isn’t necessarily mad about general disinformation trending on ExTwitter. They’re mad that Elon’s speaking. And, yes, even in the UK with much lower levels of free speech rights, if you’re arguing over the right of one person to say nonsense, it just becomes a fight over free speech. And there are plenty of others saying the same thing. Musk isn’t the only one doing this.

So, I suggest in the article that rather than focus on yelling about Elon, we should do more to better educate people not to fall for the kind of nonsense that Elon falls for. We should focus on enabling there to be more competition and other places for people to speak, so that one person isn’t in control of one of the most popular spots to speak.

In other words, focus on making fewer people care what he has to say, rather than focusing on trying to silence Elon.

And, of course, some of that should be to take a page from the Democratic party of the last few weeks and move away from scolding to mockery. Elon is the richest man in the world, has access to any expert he wants, and can absolutely find out what’s true. Shouldn’t people start calling out how absolutely ridiculous it is that he instead decides to get his information from a rando named CatTurd2?

There’s a lot more in the full article, so go check it out. I fear we’re just going to keep making the same mistake over and over again, which only plays into the framing that we need people like Elon controlling our speech platforms. He’s not a nation state. He’s a very, very wealthy gullible sucker spreading conspiracy theories. Just point out how ridiculous he is and move on.

Filed Under: elon musk, misinformation, peter kyle, riots, uk
Companies: twitter, x

Daily Deal: The Complete MATLAB Programming Master Class

Deals

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

MATLAB allows matrix manipulations, plotting of functions and data, implementation of algorithms, creating of user interfaces, and interfacing with programs written in other languages. That’s all well and good, but it means nothing if you don’t have a firm grasp of the data types used within MATLAB. In the Complete MATLAB Programming Master Class, you’ll cover not just data types, but also dive into their functions and how to perform conversions to make analysis and programming a greater experience. It’s on sale for $30.

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

Detroit Man Secures $300,000 Payout For False Facial Recognition Arrest

(Mis)Uses of Technology

from the improbable-cause dept

The Detroit PD — or at least a few of its investigators — managed to be the absolute worst at using facial recognition tech. Despite being told by their tech provider that a “match” was never to be considered probable cause for an arrest on its own, multiple PD investigators decided a match — no matter how iffy — was all they needed to start locking people up.

One of those people was Robert Williams, who was arrested in the driveway of his home because officers claimed grainy, dark footage from a jewelry store robbery showed he was the most likely suspect. The final part of this thoroughly incomplete “investigation” was performed by the PD’s facial recognition tech, which used a non-ideal image to serve up a match one detective (who has been sued twice so far) treated as actual probable cause.

Here’s the image they were working with:

Not great! Not even really acceptable! The face — the thing needed most for facial recognition — was in shadows, not clearly defined, and of low enough quality you would think the AI would have served up nothing more than a shrug.

Nonetheless, detectives Daniel Bussa and Steve Posey decided this was enough to go after Williams, who was arrested and, following his exoneration, sued the detectives for violating his rights.

That lawsuit has now netted Williams a $300,000 payout from Detroit residents who had nothing to do with this bogus arrest. But that’s how city funding works and that’s why when government agencies get things wrong, they rarely feel compelled to prevent the same thing from happening again. Here are a few more details on this part of the settlement, courtesy of Emma Camp at Reason:

Williams filed a lawsuit against Detroit police in 2020. Last month, the case was settled, with Williams receiving a $300,000 payout, according to the Associated Press. As part of the settlement, the Detroit Police Department also agreed to conduct an audit of all cases “in which facial recognition technology was utilized to generate an investigative lead that was followed by an arrest or the issuance of an arrest warrant.”

“We are extremely excited that going forward there will be more safeguards on the use of this technology with our hope being to live in a better world because of it,” Williams told journalists last month. “Even though what we would like for them to do is not use it at all.”

While I am pleased to see someone secure compensation for being wronged by the government (even if it will be paid by citizens, rather than the government employees involved), the bigger win is the other part of the settlement, which provides far more of a deterrent to future abuse of this tech than spending other people’s money to escape a lawsuit.

The other part of the settlement alters how the Detroit PD handles facial recognition tech matches, as well as how it conducts its virtual “lineups” when talking to eyewitnesses. That part of the settlement will force the PD to play by the rules set by the tech provider, which means investigators won’t be able to consider search matches probable cause on their own. In addition, any matches served up by the AI will no longer take prominence in photo arrays presented to eyewitnesses. Instead of a “six pack” of photos, investigators will have to present photos one at a time, including a separate photo of the suspect that hasn’t been derived from the facial recognition tech. Investigators will also have to disclose to eyewitnesses (and courts) that the match was derived from an automated search, rather than pretend these photos were just part of a random selection.

Finally, let’s not forget that a system capable of serving up false positives is just as capable of pitching false negatives to investigators. Relying solely on AI search results — as Detroit PD detectives did in multiple cases — compounds the problem. Not only are innocent people being arrested but guilty parties are going undetected. Facial recognition can work if it’s a small part of much larger and better vetted investigation process. What it should never be expected to do is act as a stand-alone probable cause for arrests.

Filed Under: daniel bussa, detroit, detroit pd, facial recognition, false arrest, false positive, michael oliver, robert williams, steve posey

Jim Jordan & Elon Musk Suppressed Speech; Don’t Let Them Pretend It’s A Win For Free Speech

Failures

from the that's-the-opposite-of-free-speech dept

Up is down, left is right, day is night. And now, to Jim Jordan and Elon Musk, clear, direct government censorship is, apparently, “free speech.”

This isn’t a huge surprise, but on Thursday, the World Federation of Advertising shut down GARM, the Global Alliance for Responsible Media, in response to legal threats from ExTwitter and Rumble, and a bullshit Congressional investigation led by Jim Jordan.

As we have detailed, GARM was setup following the mosque shootings in New Zealand, which was livestreamed. Brand advertisers were accused (arguably unfairly) of profiting off of such things, so they put together this alliance to share information about best practices on social media advertising for brand safety.

GARM was specifically a way for advertisers to set up those best practices, share them with each other, but also to share them with social media sites, to say “hey, this is the kind of trust & safety processes we expect if we’re going to advertise.”

I disagreed with GARM about lots of things, but in a free market, where there is free speech, they should absolutely be allowed to create best practices and to talk with platforms and advertisers and advocate for better trust & safety practices in order for brands to feel safe that their ads won’t show up next to dangerous content.

All of it was entirely voluntary. Advertisers didn’t have to abide by the standards, nor did platforms. This was literally just part of the marketplace of ideas. Some advertisers advocated for efforts to be made to protect their brand safety, and some platforms agreed while others, like Rumble, did not.

All GARM was at its core was advertisers using their own freedom of expression and rights of association to try to put some pressure on platforms to be better stewards, so that advertisers weren’t putting their brands at risk. You can (perhaps reasonably!) argue that they pushed too hard, or some of their requests were unreasonable, but it’s their free speech rights.

As we’ve detailed over the last month, ExTwitter had regularly used GARM’s standards to try to convince advertisers they were “safe” and officially “excitedly” rejoined GARM as a member just last month. A few days later, Jim Jordan’s House Judiciary Committee released a blisteringly stupid and misleading report, falsely claiming that GARM was engaged in antitrust-violating collusion to punish conservative media. None of that was ever true.

However, Elon announced that he would be suing GARM and hoped that criminal charges would be filed against GARM, perhaps not realizing his own organization had rejoined GARM a week earlier and touted that relationship in its effort to attract advertisers. Earlier this week, he carried through on that plan and sued GARM for alleged antitrust violations.

The lawsuit is absolutely ridiculous. It assumes that because GARM, at times, criticized Elon’s handling of trust & safety issues, that was a form of collusion that abused its monopoly position to get advertisers to stop advertising on ExTwitter.

It is one of the most entitled, spoiled brat kind of lawsuits you’ll ever see. Not only does it seem to suggest that not advertising on ExTwitter is an antitrust violation, it assumes that the only reason that advertisers would remove their ads from the site was not due to any actions by the company or Elon, but rather that it must be because GARM organized a boycott (which, notably, none of the evidence shows they did). One thing is quite clear from all this: Elon seems incapable of recognizing that the consequences of his own actions fall on him. He insists it must be everyone else’s fault.

Indeed, the sense of entitlement shines through from those involved in this whole process.

For example, Rumble’s CEO Chris Pavlovski more or less admitted that if you turn him down when he asks companies to advertise, you would now get sued. The sheer, unadulterated entitlement on display here is incredible:

Rumble had sued GARM alongside ExTwitter, using some of the same lawyers that Elon did. When tweeting out the details to prove that these advertisers should be added to his lawsuit, Pavlovski only showed perfectly friendly emails from companies saying “hey, look, advertising on your site won’t be good for our reputation, sorry.”

That’s not illegal. It’s not collusion. It’s the marketplace of ideas saying “hey, we don’t want to associate with you.” But, according to Rumble, that alone deserves a lawsuit.

Anyway, the World Federation of Advertisers has apparently given in to this lawfare from Elon and Jim Jordan and announced on Thursday that they were shutting down GARM because of all of this.

In other words, Elon, Jordan, and others have used the power of the state, both in the form of lawsuits and congressional investigations, to browbeat advertisers into no longer speaking up about ways to keep social media sites safe for their brands.

This is the exact opposite of free speech. It’s literally using the power of the state to shut up companies which were expressing views that Elon and Jordan didn’t like.

And, so, of course, they and their fans are celebrating this state-backed censorship as a “win for free speech.” It’s ridiculously Orwellian.

This is not a “win” for the First Amendment in any way. It is, in every way, the opposite. The House Judiciary Committee, under Jim Jordan, abused the power of the state to shut up companies from talking about which sites they felt were safe for brands or what those sites could do to be better.

And, of course, a bunch of other very foolish people repeated more of this kind of nonsense, including some of MAGA’s favorite journalists, who pretend to support free speech. Ben Shapiro called it an “important win for free speech principles,” which is just disconnected from reality.

Linda Yaccarino claims it proves that “no small group should be able to monopolize what gets monetized.” This makes no sense at all. No small group monopolized anything. They just tried to put in place some basic best practices to protect their brands and no one had to agree with them at all (and many didn’t).

And if Linda or Elon thinks this will magically make advertisers want to come back to ExTwitter, they’re even more delusional than I thought. Who would ever want to advertise on a platform that sued advertisers for leaving?

Filed Under: 1st amendment, advertising, antitrust, best practices, censorship, elon musk, entitlement, free speech, garm, jim jordan
Companies: garm, rumble, twitter, wfa, world federation of advertisers, x

Disney+, Hulu, ESPN+ All Jack Up Prices As Streaming Enshittification Continues

Overhype

from the bleed-them-dry dept

Now that streaming subscriber growth has slowed, we’ve noted repeatedly how the streaming TV sector is falling into all of the bad habits that ultimately doomed traditional cable TV.

That has involved chasing pointless “growth of growth’s sake” megamergers and imposing bottomless price hikes and new annoying restrictions — all while simultaneously cutting corners on product quality in a bid to give Wall Street that sweet, impossible, unlimited, quarterly growth it demands.

After Max just imposed a new round of streaming service price hikes, Disney+, Hulu, and ESPN+ (all owned by the same company) have all followed suit, imposing higher prices to access streaming catalogs of deteriorating quality as companies try to claw back at debt loads. Some of Disney’s price hikes are as much as 25 percent, and the hikes are hitting ad-based and ad-free versions alike.

User opinions on Reddit and other online forums haven’t been kind:

“The enshittification of media in the last few years is insane and it’s wild how seemingly no one cares anymore about making something that is actually enjoyable to watch and not their egotistic[al] pipe dream.”

The price hikes come not because Disney is desperate; Disney this week reported its first ever modest streaming profit ($47 million on revenue of $6.5 billion).

The business press of course treated the discovery that you make more money when you charge more as an act of uncanny business savvy; not mentioned is the fact that these kinds of price hikes simply aren’t sustainable, or the fact that the costs for a “growth for growth’s sake” mindset are always borne by the consumer or the employee.

Publicly-traded companies can’t just provide a quality, affordable service people like. They have to provide Wall Street ever-escalating quarterly returns. If it’s not possible to achieve those returns through innovation and subscriber growth (which is no longer possible now that the market is saturated), that’s when big companies get in trouble and start creatively nickel-and-diming their userbase.

Traditional cable TV, of course, went through this exact life cycle. And despite the fact many of those executives have shifted over to streaming, they’ve learned nothing from history or experience because they’re not financially incentivized to learn from experience. They’re incentivized to make stock values climb at any cost, then flee when things get rough; fat executive or investor compensation in hand.

Price hikes, annoying restrictions, or crackdowns on the villainy of (previously encouraged) password sharing won’t be enough. You’ve also got to cut back on customer service, push cheaper, lower-quality content, and ultimately embrace utterly pointless mergers that trigger waves of layoffs.

This cycle for streaming won’t end until they’re disrupted in turn by better alternatives, even if those alternatives wind up being a resurgent interest in film and TV piracy. At which point, to be sure, any remaining executives that haven’t fled or retired are guaranteed to blame everything and everyone but themselves.

Filed Under: cable, disney plus, enshittification, espn, growth for growth's sake, hulu, piracy, streaming, tv, video
Companies: disney

UK Once Again Denies A Passport Over Applicant’s Name Due To Intellectual Property Concerns

Too Much Free Time

from the papers-please dept

I can’t believe this, but it happened again. Almost exactly a decade ago, Tim Cushing wrote about a bonkers story out of the UK in which a passport applicant who’s middle name was “Skywalker” was denied the passport due to purported trademark or copyright concerns. The question that ought to immediately leap to mind should be: wait, nothing about a name or its appearance on a passport amounts to either creative expression being copied, nor use in commerce, meaning that neither copyright nor trademark law ought to apply in the slightest.

And you would have thought that coming out of that whole episode, proper guidance would have been given to the UK’s passport office so that this kind of stupidity doesn’t happen again. Unfortunately, it did happen again. A UK woman attempted to get a passport for her daughter, who she named Khaleesi, only to have it refused over the trademark for the Game of Thrones character that held the same fictional title.

Lucy, 39, from Swindon in Wiltshire, said the Passport Office initially refused the application for Khaleesi, six.

Officials said they were unable to issue a passport unless Warner Brothers gave permission because it owned the name’s trademark. But the authority has since apologised for the error.

“I was absolutely devastated, we were so looking forward to our first holiday together,” Lucy said.

While any intellectual property concerns over a passport are absolutely silly, I would argue that trademark law makes even less sense here than copyright would. Again, trademark law is designed specifically to protect the public from being confused as to the source of a good or service in commerce. There is no good or service nor commerce here. Lucy would simply like to take her own child across national borders. That’s it. Lucy had to consult with an attorney due to this insanity, which didn’t initially yield the proper result.

After seeking legal advice, her solicitors discovered that while there is a trademark for Game of Thrones, it is for goods and services – but not for a person’s name.

“That information was sent to the Passport Office who said I would need a letter from Warner Brothers to confirm my daughter is able to use that name,” she said.

This amounts to a restriction on the rights and freedoms of a child in a free country as a result of the choice their parent’s made about their name. Whatever your thoughts on IP laws in general, that simply cannot be the aim of literally any of them.

Now, once the media got a hold of all of this, the Passport Office eventually relented, said it made an error in denying the passport, and has put the application through. But even the government’s explanation doesn’t fully make sense.

Official explained there had been a misunderstanding and the guidance staff had originally given applies only to people changing their names.

“He advised me that they should be able to process my daughter’s passport now, ” she said.

Why would the changing of a name be any different? My name is my name, not a creative expression, nor a use in commerce. If I elect to change my name from “Timothy Geigner” to “Timothy Mickey Mouse Geigner”, none of that equates to an infringement of Disney’s rights, copyright nor trademark. It’s just my name. It would only be if I attempted to use my new name in commerce or as part of an expression that I might run afoul of either trademark or copyright law.

What this really is is the pervasive cancer that is ownership culture. It’s only with ownership culture that you get a passport official somehow thinking that Warner Bros. production of a fantasy show means a six year old can’t get a passport.

Filed Under: khaleesi, names, passport office, passports, trademark, uk
Companies: warner bros.