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ESA Steps In With Amicus Brief In Support Of Activision Versus Humvee

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A short while ago, we discussed a rather concerning lawsuit brought by AM General LLC, the company that makes Humvees, against Activision, the game publisher that occasionally publishes Call of Duty games that include depictions of Humvees. AM General's claims are pretty silly, suggesting that players of the games will think that those games were somehow created by or endorsed by AM General. I can't imagine that's the case; instead, most people are likely to think that Activision is attempting realism in their warfare game, since you basically cannot make an American warfare game accurately without including Humvees. Activision's response was on First Amendment grounds, arguing that its games are partly an historically accurate work of art, for which including Humvees is accurate and fair use.As we pointed out in our original post, this case has great implications for the wider video game industry. Because of that, perhaps it's not hugely surprising to see that the Entertainment Software Association has jumped into the case with an amicus brief arguing for the granting of Activision's summary judgement motion. The whole thing is worth reading, but you can tell that the ESA's viewpoints on this are framed by the wider gaming industry.

AM General LLC’s (“AM General”) lawsuit raises issues of substantial importance to the video-game industry. Today’s video games are exceptionally diverse in their artistic expression, ranging from the action-adventure of Activision’s Call of Duty franchise, to educational games like Where in the World is Carmen San Diego?, to sports-themed games like Madden NFL, to historical simulation games like the Civilization franchise, to games that are derived from motion pictures like Star Wars or that inspire motion pictures like Assassin’s Creed. Whether factbased, fictional, or somewhere in between, many of these games refer to or incorporate real-life historical and cultural elements – often including real products like the military vehicles at issue in this case, and the trademarks, trade dress, and other distinctive elements used to accurately identify and depict those products – to create realistic interactive environments that facilitate expression, enhance verisimilitude, and enrich the user experience. If AM General succeeds in punishing Activision for exercising its First Amendment right to depict realistic U.S. military vehicles in Call of Duty – or in forcing Activision to endure the burdens of a trial to vindicate its First Amendment rights – ESA’s members and gamers will suffer. Video-game developers and publishers will be exposed to even more frequent litigation, with some developers and publishers foregoing the use of real products in their works to avoid being dragged into court. Because AM General’s theory is antithetical to the rights of ESA’s members – and is irreconcilable with well-settled authority governing the use of real products in expressive works – ESA respectfully requests that this Court grant Activision’s motion for summary judgment.
There are many reasons why AM General's lawsuit should fail, but the risk to artistic output must certainly be first and foremost. The idea that a storied vehicle used in American warfare could be blocked from being depicted in artistic expression over intellectual property rights is purely antithetical to the First Amendment. What I suspect is happening here is something else that regularly annoys me: the dismissal of video games as artistic expression. After all, it's not as though we've heard about many fights between the Humvee people and the film industry. And, yet, the number of depictions of Humvees in TV and film is countless. So why should Call of Duty be any different?The ESA brief makes this point in the brief.
VIDEO GAMES ARE CULTURALLY SIGNIFICANT EXPRESSIVE WORKS Since the creation of the first electronic game in the 1950s – a highly pixelated version of tic-tac-toe entitled Noughts and Crosses3 – video games have evolved into complex works that are similar to interactive movies. Video games equal books, films, and television shows in terms of cultural significance and share myriad elements with these more traditional forms of expression. Like novels, many video games have multi-dimensional characters, complex storylines, and carefully crafted dialogue. Like films and television shows, many video games contain story arcs, visual images, and musical scores that contribute to their emotional impact.Video games have become an integral part of American culture. In 2018, nearly 165 million adults in the United States played video games, and 75 percent of all Americans had at least one gamer in their household.
In other words, Call of Duty is every bit as much art and culture as Saving Private Ryan, in which case it is afforded all of the same First Amendment and fair use protections as that movie. Given that, the use of a Humvee is pretty clear fair use in an expressive work. If found to be otherwise, the gaming industry writ large is in a whole lot of trouble, particularly for any game that wants to depict realism.But I don't think it'll get that far.

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posted at: 12:00am on 16-Jul-2019
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EFF Posts New White Paper On Stingray Device Capabilities

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The EFF has published a primer on IMSI catchers. Harris Corporation's success in this market has led to near-genericide, as almost every one of these cell tower spoofers is usually referred to as a "stingray."The white paper [PDF], titled "Gotta Catch 'Em All," runs down what's known about cell-site simulators used by a number of government agencies. Most of this has been gleaned from secondhand info -- the stuff that leaks out during prosecutions or as the result of FOIA requests.The technical capabilities of CSSs have been kept under wraps for years. The reasoning behind this opacity is that if criminals know how these devices work, they'll be able to avoid being tracked by them. There may be a few technical details that might prove useful in this fashion, but what is known about Stingray devices is that the best way to avoid being tracked by them is to simply not use a cellphone. But who doesn't use a cellphone?The report is definitely worth reading, even if you've stayed on top of these developments over the past several years. It breaks down the technical subject matter in a way that makes clear what CSSs can and can't do -- and how they're capable of disrupting cellphone networks while in use.While CSSs can intercept communications, it's hardly worth the effort. Unless the CSS can talk the phone into accepting a 2G connection (which eliminates encryption and severely limits the type of communications originating from the dumbed-down phone), it just doesn't work. This doesn't mean the devices are never used this way. But it does mean it's not a very attractive option.On the other hand, CSSs impersonate cell towers, so they're able to pull all sorts of info from every device forced to connect with the faux cell tower. These devices are used most often to locate criminal suspects, meaning precise GPS location is a must-have. Operating on their own, cell-site simulators can't generate pinpoint accuracy. Working in conjunction with nearby towers, they can triangulate signals to provide better location info. But there's another option -- one rarely discussed in courtroom proceedings. CSSs can also force phones to give up precise location info.First, the Stingray extracts info from nearby cell towers. Using this info (which the EFF points out anyone can access), the CSS alters its signal to become the highest priority connection in the area of operation. Once it's done this, GPS info can be coaxed from phones now connected to the fake cell tower.

[T]he attacker creates a “RRC Connection Reconfiguration” command, which contains the cell IDs of at least 3 neighbouring cell towers and their connection frequencies and sends this command to their target’s phone.Usually, the “RRC Connection Reconfiguration” command is used to modify an existing connection to a base station, but the attacker is only interested in the target phone’s initial response to its message. This response contains the signal strengths of the previously specified cell towers, which can then be used to find the phone’s location via trilateration.For newer phones and networks which support the “locationInfo-r10” feature, this report will also contain the phone’s exact GPS coordinates, meaning no trilateration calculations are required. The exact GPS coordinates are just a field in the response (Shaik et al, 2017).
There are few options available for people wanting to use a cellphone but are also wanting to avoid being swept up by a Stingray. As the report notes, there are a few cell tower spoofer detection apps on the market, but they may be more likely to generate false positives than detect IMSI catchers. There's no baseline for carrier behavior, much less "normal" Stingray use.And, in any event, the EFF isn't publishing a handbook on how to evade detection by these devices. It's simply informing the public of the power of these devices, which are becoming as ubiquitous as the phones they track and trace. Since the public hasn't been invited to any these discussions by law enforcement agencies, it's up to everyone else to detail known capabilities and assess the potential damage to the public's expectation of privacy.

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