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March 2020
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Netflix Continues To Release CYOA Content, Doesn't Refer To It As 'CYOA'...For Now

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This Chooseco and Netflix trademark dispute story gets more and more interesting. To catch you up, Netflix produced the Black Mirror iteration entitled Netflix which both was, and was marketed as, a "choose your own adventure" production, similar to the CYOA books from our youth. There was also some dialogue within the production itself that referenced "choose your own adventure." For this, Chooseco, which has a trademark on the phrase, sued Netflix. Netflix tried to get the case tossed on First Amendment grounds, failed, and has since counterclaimed to have Chooseco's trademark cancelled entirely.To highlight how stupid this all is, let's review some press from Netflix's latest iteration of its excellent Carmen Sandiego show, which includes post titles like Kotaku's Carmen Sandiego Is Getting Back To Its Gaming Roots With Netflix's Next Choose Your Own Adventure-Style Special.

Carmen Sandiego: To Steal or Not To Steal is a new special set in the continuity of Netflix’s animated reboot of the beloved adventure series, and sees Carmen forced into pairing up with her former sneaky tutors in the art of thievery at VILE Academy on a new string of heists. Why is Carmen working with her former frenemies? Because they’ve captured her friends Ivy and Zack, and are threatening to brainwash them into VILE’s latest operatives if she doesn’t team-up.Judging by the trailer, this isn’t going to be a Black Mirror: Bandersnatch level of mutability and player choice, which is fine, considering this is more aimed at kids and families (you also may note Netflix is definitely not attaching the Choose Your Own Adventure name to this one).
That's true. Netflix is absolutely not using anything remotely close to the CYOA moniker to promote this thing. Why? Well, almost certainly because of the nonsense lawsuit its wrapped up in with Chooseco. However, you will notice that the press is quite happy to describe Netflix's new production by the genre moniker that makes the most sense: choose your own adventure.This highlights the entire problem with Chooseco's lawsuit, as well as the reasoning behind Netflix seeking to cancel the trademark entirely. "Choose your own adventure" is either generic or descriptive, or perhaps some combination of both. What is isn't, to be sure, is somehow descriptive or distinctive of Chooseco products in particular.And, yet, Chooseco's lawsuit rolls on.

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Senators Hawley & Feinstein Join Graham & Blumenthal In Announcing Bill To Undermine Both Encryption And Section 230

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In late January, we had an analysis of an absolutely dreadful bill proposed by Senators Lindsey Graham and Richard Blumenthal -- both with a long history of attacking the internet -- called the EARN IT Act. The crux of the bill was that, in the name of "protecting the children," the bill would drastically change Section 230 of the Communications Decency Act, making companies liable for "recklessly" failing to magically stop "child sexual abuse material" -- opening them up to civil lawsuits for any such failures. Even worse, it would enable the Attorney General -- who has made it quite clear that he hates encryption -- to effectively force companies to build in security-destroying backdoors.On Thurdsay, the EARN IT Act (Eliminating Abusive and Rampant Neglect of Interactive Technologies Act) was officially introduced with two additional awful Senators: from the Republican side there's tech hating Josh Hawley, and on the Democratic side, there's encryption hating Dianne Feinstein.This version of the bill has a few changes from the draft version that made the rounds before, but in effect it is trying to accomplish the same basic things: forcing companies to backdoor encryption or lose Section 230 protections, while at the same time opening up platforms to a wide range of lawsuits (a la what we're seeing with FOSTA suits) from ambulance chasing tort lawyers trying to shake down internet platforms for money, while claiming to do so in the name of "protecting the children."Senator Ron Wyden, who authored Section 230 decades ago, had the most succinct explanation of why the EARN IT Act is bad on multiple levels:

After the federal government spent years ignoring the law and millions of reports of the most heinous crimes against children, William Barr, Lindsey Graham and Richard Blumenthal are offering a deeply flawed and counterproductive bill in response.This terrible legislation is a Trojan horse to give Attorney General Barr and Donald Trump the power to control online speech and require government access to every aspect of Americans' lives. It is a desperate attempt to distract from the Justice Department's failure to request the manpower, funding and resources to combat this scourge, despite clear direction from Congress more than a decade ago.While Section 230 does nothing to stop the federal government from prosecuting crimes, these senators claim that making it easier to sue websites is somehow going to stop pedophiles.This bill is a transparent and deeply cynical effort by a few well-connect corporations and the Trump administration to use child sexual abuse to their political advantage, the impact to free speech and the security and privacy of every single American be damned.
There are a number of key points on this, starting with the fact that Barr's DOJ has consistently failed to do what it's mandated by Congress to do in fighting against child sexual exploitation. Any news story that fails to mention this key point is failing you in not explaining the context. Barr is looking for someone to blame for his own failures, and he's picked on the politically convenient internet industry -- while simultaneously getting to undermine the encryption he hates.Another key point in the Wyden statement is that much of the EARN IT Act is dubious and cynical, but as Berin Szoka pointed out, this is likely to make stopping actual sexual exploitation that much more difficult:
Perversely, the EARN IT Act makes it easier to sue websites than people who actually create and disseminate CSAM, explained Szka. Facing potentially staggering civil liability means website providers will have no choice but to comply with the Commission's nominally voluntary 'best practices.'
In that same link, Berin highlights another Constitutional problem with the Act, which could make it much more difficult for law enforcement to track down those actually responsible for child porn -- a perverse end result, which is not unlike what we've already seen happen with sex trafficking in response to FOSTA, where police have been saying that the law has made it more difficult for them to investigate trafficking.This is a bad bill, put forth for cynical reasons, wrapped in a insincere "protect the children" blanket -- pushed for by a crew of companies who failed to innovate on the internet, and sponsored by Senators who have a long history of making it clear that they will beat up on civil liberties and innovation at any opportunity.

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