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June 2020
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Federal Court Affirms Activision's First Amendment Rights In Using Humvees in 'Call Of Duty' Game

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Almost exactly a year ago, we first wrote about a trademark lawsuit brought by AM General LLC, the company that makes Humvee vehicles, and Activision. At issue is the inclusion of historically accurate Humvee vehicles in the publisher's Call of Duty games. AM General decried those depictions as trademark infringement, leading Activision to say its use was protected by the First Amendment, given that the entire goal here was to accurately depict warfare in an artistic fashion. Shortly after, the ESA chimed in with an amicus brief siding with Activision. Given the implications for the gaming industry should AM General win the suit, this was no surprise.Well, fortunately for creative expression in gaming, the court has ruled and has sided with Activision.

In his ruling this week, though, District Judge George B. Daniels dismissed AM General's claim. That decision hinged in part on a 1989 precedent that established that artistic works could make reference to outside trademarks as long as the usage was relevant to the work and did not "explicitly mislead as to the source of the content or work."The court then went through an eight-prong "Polaroid" test (named after a precedential 1961 case) to determine whether Activision's use of Humvees amounted to a legally relevant "explicit misleading" that would trump First Amendment protections. As part of that argument, AM General submitted a survey it conducted showing 16 percent of consumers "were confused as to AM General's association with Call of Duty." As Judge Daniels notes, "less than 20 percent confusion regarding two companies' 'association'... is at most some confusion" and does not amount to the "particularly compelling" confusion required by legal precedent.
The court actually continued on in its analysis as to why AM General's claims were nonsense. It's a fairly thorough debunking by the court. Ultimately, however, the court dove into the impact that ruling otherwise would have on the First Amendment rights for artistic expression in mediums where realism is part of the art.
Daniels writes that "if realism is an artistic goal, then the presence in Modern Warfare games of vehicles employed by actual militaries undoubtedly furthers that goal." And even if that commitment to realism causes a modicum of brand confusion in this case, it's not enough to override the First Amendment protections that video games have enjoyed since a 2011 Supreme Court ruling.
In other words, the tiny bit of maybe, potentially confusion that AM General ginned up in its filing doesn't remotely undue the protections artists and content creators enjoy for free and open expression. You know, the type of freedoms that the US Military has helped our country secure... often times using Humvees!It's good to see a court side with free expression over corporate protectionism every once in a while.

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posted at: 12:00am on 13-Jun-2020
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Zoom & China: Never Forget That Content Moderation Requests From Government Involve Moral Questions

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If you've been around the content moderation/trust and safety debates for many years, you may remember that in the early 2000s, Yahoo got understandably slammed for providing data to the Chinese government that allowed the government to track down and jail a journalist who was critical of the Chinese government. This was a wake up call for many about the international nature of the internet -- and the fact that not every "government request" is equal. This, in fact, is a key point that is often raised in discussions about new laws requiring certain content moderation rules to be followed -- because not all governments look at content moderation the same way. And efforts by, say, the US government to force internet companies to "block copyright infringement" can and will be used by other countries to justify censorship.The video conferencing software Zoom is going through what appears to be an accelerated bout of historical catch-up as its popularity has rocketed thanks to global pandemic lockdown. It keeps coming across problems that tons of other companies have gone through before it -- with the latest being, as stated above, that requests from all governments are not equal. It started when Zoom closed the account of a US-based Chinese activist, who used Zoom to hold an event commemorating the Tiananmen Square massacre. Zoom initially admitted that it shut the account to "comply" with a request from the Chinese government:

Just like any global company, we must comply with applicable laws in the jurisdictions where we operate. When a meeting is held across different countries, the participants within those countries are required to comply with their respective local laws. We aim to limit the actions we take to those necessary to comply with local law and continuously review and improve our process on these matters. We have reactivated the US-based account.
That response did not satisfy anyone and as more and more complaints came in, Zoom put out a much better response, which more or less showed that they're coming up to speed on a ton of lessons that have already been learned by others (at the very least, it suggests they should hire some experienced trust and safety staffers...). At the very least, though, Zoom admits that in taking the Chinese government's requests at face value, it "made two mistakes":
We strive to limit actions taken to only those necessary to comply with local laws. Our response should not have impacted users outside of mainland China. We made two mistakes:
  • We suspended or terminated the host accounts, one in Hong Kong SAR and two in the U.S. We have reinstated these three host accounts.
  • We shut down the meetings instead of blocking the participants by country. We currently do not have the capability to block participants by country. We could have anticipated this need. While there would have been significant repercussions, we also could have kept the meetings running.
There are reasonable points to be made that a company like Zoom should have anticipated issues like this, but at the very least you can give the company credit for admitting (directly) to its mistakes, and coming up with plans and policies to avoid doing it again in the future.But there is a larger point here that often gets lost in all these discussions about trust and safety, and content moderation. So much of the debates usually focus on the assumption that (1) requests to block or take down content or accounts are done in good faith, and (2) that those making the requests have similar values. That's frequently not the case at all. We've shown this over and over again here on Techdirt in which laws against "fake news" are used to silence critics of a ruling class.So for anyone pushing for laws that require internet companies to somehow ban or block "bad behavior" and "bad actors," you need to be able to come up with a definition of those things that won't be abused horribly by authoritarian governments around the globe.

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posted at: 12:00am on 13-Jun-2020
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