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NFL Gets Shopify To Take Down Clear NY Jets Parody Merch Site With Trademark Complaint

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All regular readers here will need is to see a headline that includes both the word "trademark" and the NFL to get their eyes rolling. The NFL is notorious in its jealous protection of its intellectual property. In fact, the league goes much further than your everyday trademark bully, chiefly by pretending it has trademark rights that it absolutely does not have. This usually rears its head in the run up to the Super Bowl.But the other game of pretend the NFL likes to play is one in which it pretends to not know that Fair Use exists. That can be seen most recently in the league going after a seller or parody NY Jets gear on his Shopify site, getting the whole store taken down by asserting trademark infringement.

One of the NFL’s latest victims is Zach Berger, a New Yorker who sells merchandise for frustrated New York Jets fans through a website called Same Old Jets Store. Most of Berger’s products feature a parody version of the Jets’ logo, modified to say “SAME OLD JETS”—a phrase that’s been used for decades to criticize the team’s performance and express fans’ sense of inevitable disappointment. His other products include “MAKE THE JETS GREAT AGAIN” hats and clothing that says “SELL THE TEAM” in a font similar to one used on Jets merchandise.
The NFL got in touch with Shopify and claimed that every single product on the site violated its trademark rights. The notice that was sent was essentially boilerplate material, asserting claims that the league and teams own all rights to all trademarks for those teams. In addition, the league claimed that the general public would be confused into thinking that the NFL or the Jets were the ones that were selling this gear.Think about that for a moment. The NFL asserted that a store selling merchandise that makes fun of one of its teams would be confused with officially licensed gear. As the EFF link notes, one of the phrases on this merchandise is "SELL THE TEAM." And the NFL says the public is going to think that's an officially licensed product. These items are clear parody and fall under the realm of Fair Use.But there's a reason that trademark bullying works and it's because platforms like Shopify always, always, always err on the side of the rightsholder.
Disappointingly, Shopify responded to the infringement complaint by taking down Berger’s listings, without questioning the NFL’s absurd claims or giving Berger a chance to respond. Even worse, when Berger contacted Shopify and explained why the NFL’s complaint was baseless, Shopify simply stated that it had forwarded Berger’s message to the NFL and would not restore the listings “until this matter is resolved between the parties.” More than a week later, the NFL has yet to respond—which isn’t surprising, since Shopify already did exactly what the NFL wanted.
And so Berger's legit store remains down, all because the NFL would rather play pretend and be a trademark bully than withstand the slightest bit of criticism.

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posted at: 12:00am on 07-Mar-2020
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Sen. Wyden And Rep. Khanna Introduce Bill That Would Protect Journalists And Whistleblowers From Bogus Espionage Prosecutions

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Two consecutive administrations have engaged in wars on whistleblowers. President Obama used the Espionage Act to punish more whistleblowers and leakers than all other previous administrations combined. President Trump promised to "drain the swamp" and reverse all the damage he believes Obama had done to this nation. Apparently that doesn't include ejecting yes men from prominent government positions or scaling back Obama's anti-whistleblower activities.Now that it's clear Bill Barr's DOJ is just an Oval Office lapdog, Senator Ron Wyden and Representative Ro Khanna are trying to do something to protect journalists who receive and report on leaked documents and other whistleblower activity.The Espionage Act Reform Act [PDF] would strengthen protections for journalists and whistleblowers, shielding them from vindictive prosecutions for engaging in acts protected by the First Amendment and (supposedly) by the federal government itself.A FAQ [PDF] released with the bill makes it clear the new law would not prevent legitimate deployment of the Espionage Act to prosecute government employees who hand government secrets to those not authorized to receive them, as well as foreign spies and other agents of foreign powers.What it would do is keep journalists from being prosecuted under the law and make it easier for whistleblowers to bring their concerns up through the proper channels. Here's what the bill does:

Protects journalists who solicit, obtain, or publish government secrets from prosecution.
Ensures that each member of Congress is equally able to receive classified information, including from whistleblowers. Currently, the law criminalizes the disclosure of classified information related to signals intelligence to any member of Congress, unless it is in response to a “lawful demand” from a committee. This puts members in the minority party and those not chairing any committee at a significant disadvantage.
Ensures that federal courts, inspector generals, the FCC, Federal Trade Commission, and Privacy & Civil Liberties Oversight Board can conduct oversight into privacy abuses.
Ensures that cybersecurity experts who discover classified government backdoors in encryption algorithms and communications apps used by the public can publish their research without the risk of criminal penalties. It is up to governments to hide their surveillance backdoors; academic researchers and other experts should not face legal risks for discovering them.
This will prevent this administration (and the ones that follow it) from targeting whistleblowers and journalists -- something the Trump administration has been openly doing. It will also open up the official channels, making it easier for whistleblowers to take their concerns to Congress, rather than forcing them to navigate a complicated maze of deterrents with the omnipresent threat of prosecution hanging over their heads.The protections for security researchers is also a welcome addition. Researchers often become the subject of legal threats and criminal charges just for doing the important work of ensuring data and systems that should be secured are actually secure.Of course, this bill is being sent into hostile territory. The administration certainly doesn't want to see whistleblowers and journalists protected, and neither do far too many legislators. But if it does become law, it will reset the status quo -- turning the Espionage Act back into the law it was always supposed to be: something to wield against foreign spies and federal employees seeking to do harm to the nation, rather than those who actually wanted to make America better by reporting on wrongdoing.

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posted at: 12:00am on 07-Mar-2020
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