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Bitmovin Takes A Scorched Earth Approach To Patent Troll, Who Limps Away Quickly

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A few years back, e-commerce company Newegg decided to take something of a scorched earth approach to all of the various patent trolls that came after it: it would never settle with a patent troll. While many trolls rely on the fact that it's cheaper to settle than to fight in court (even if you win), Newegg did the longer term calculation, and recognized that even if it cost more to defeat trolls in court, by being very public with its stance in fighting it would likely scare off trolls from continuing to sue the company. It took a few years, but the strategy mostly worked. Trolls have mostly learned to steer clear of Newegg.Last year, Cloudflare decided to up the ante a bit on such a strategy. After a patent troll went after it, Cloudflare didn't just promise to fight back, it promised to effectively burn the patent troll into the ground. It set up a bounty looking for prior art on every patent held by that patent troll (Blackbird Technologies), and also filed ethics complaints against the lawyers who ran the company, arguing that they were pretending not to practice law when they clearly were. That strategy has resulted in an easy win over Blackbird in court while various Blackbird patents are being challenged.It appears that approach is inspiring other companies as well. Streaming infrastructure company Bitmovin's General Counsel Ken Carter (who, notably, used to work at Cloudflare) put up a blog post describing just how it dealt with a recent patent troll. After first pointing out that patents can be important, and noting that the company itself holds some patents, the post reminds everyone that it's possible to abuse the patent system.

Patent trolls tend to be at the bottom of the IP food chain. If the patents they held were really valuable, the patents would have already wound up in the hands of someone who could make the invention. These trolls behave like bullies, threatening companies actually servicing customers, hoping to pick up some quick cash. The troll knows about and takes advantage of the fact that it is cheaper for those companies to pay it off than to endure the cost of litigating the case. By contrast, patent holders who are making products for customers tend to be more rational. Sure, sometimes the likes of Apple, Google, Microsoft, and Samsung get one another involved in multi-year, multi-million dollar lawsuits, but for the most part these companies don't extort one another. It's a better use of their time to make products than to sue.
Bitmovin didn't just hit back at this patent troll: it promised a similar scorched earth approach to the one that Cloudflare took against Blackbird:
We threatened to counter sue the troll, win the case on the merits, and then seek recovery of our fees and costs from the troll and its lawyers. Further, we pledged that Bitmovin would, as a public service, reinvest any recovery in invalidating all of the troll's other patents. Through our initial investigation, we found the person behind the troll who had acquired some 15 patents originally held by a European technology company. This person then placed these patents in at least two other LLCs. In turn, those LLCs were asserting these patents in no fewer than 13 other lawsuits against defendants such as Sony, Microsoft, Cisco, Polycom, Blue Jeans Networks, and Motorola. Bitmovin pledged to use our recovery to assist those 13 companies and 6 other companies defending against the current patent in finding prior art and filing Inter partes Reviews at the US PTO's Patent Trial and Appeal Board to invalidate all of those patents.
How did that work out? Pretty well:
Without another word, the troll dismissed its lawsuit against us.
And the company hopes that other trolls will take notice:
Trolls beware. Bitmovin will continue to stand for innovation and a nuanced, balanced approach to intellectual property. We will stand up against intellectual property abuse and for our customers, our industry, and the Internet at large.
Of course, in that post, Bitmovin declined to name the troll. Though, it's not that hard to figure it out. The case was filed by Hertl media, whose only existence online is for the various patent troll lawsuits it filed at the end of June. Within 3 days, Hertl Media sued not just Bitmovin, but also Amazon, Cox Communications, Netflix, Comcast, Longtail Ad Solutions, and Telestream. One hopes that others on that list take a similar approach to Bitmovin, and they too might see the following neat results. With minimal effort in court (just a standard request for extra time to file a response), Hertl just walked away and the case was closed:


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posted at: 12:25am on 17-Aug-2018
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Comrade Brewing Gets Its 'Superpower' Trademark After Nonsense Opposition From The Wonderful Company

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Between the explosion in the craft beer industry and our pernicious ownership culture, the beer industry has enough of a trademark problem to regularly appear in our posts. While many of the disputes in the industry are generated by once-small breweries that have grown up and shed their permissive attitudes towards branding, just as many trademark disputes result from entities outside the industry attempting to pretend that the alcohol industries, if not craft beer specifically, are not markets all to their own. This lack of nuance occasionally pervades even within the USPTO, unfortunately.But sometimes the TTAB gets it right. Such is the case with Comrade Brewing, makers of its 'Superpower IPA' brew, for which the TTAB refused the opposition of The Wonderful Company, which makes fruit juices. At issue was the slogan for POM Wonderful juices: "Antioxidant Superpower."

In past cases, the board has held that wine and spirits are closely related to beer in the minds of consumers, but it said The Wonderful Co. had failed to show that a soft drink such as fruit juice had the same kind of connection. “Simply put, opposer has not submitted sufficient evidence that consumers are accustomed to encountering these goods under the same mark,” Judge Peter W. Cataldo wrote for a three-judge panel.“Particularly in light of the differences between the goods but also because the two marks had key differences in appearance,” Cataldo wrote, “the board sided with Comrade Brewing.”
This opposition was a loser on several grounds. The markets being different for each product is certainly the easiest to conceptualize. Customers looking for fruit juices are unlikely to wander into a store's craft beer section and find themselves irrevocably confused. As someone who has seen what pomegranate juice looks like, and as someone who has consumed an unholy quantity of IPAs, this opposition would be hilarious if it weren't so frustrating in the first place. For a small brewer to have to entertain this kind of clear bullying from a much larger company at the trademark office is plainly absurd.And, when you take into account the difference in the actual marks, it becomes all the more so. A beer named "Superpower IPA" and a slogan that says "Antioxidant Superpower" are simply unlikely to cause anything resembling confusion in the market. Everything else about the trade dress is also, of course, wildly different. David Lin, owner of Comrade Brewing, appears to be taking this all in stride.
“Operating this brewery has thrown us a lot of curveballs,” explains Lin. “If I’m being completely honest the potential confusion between antioxidant juice and craft beer was more surprising to me than the day someone crashed their truck through our front door. We’re going to laugh this one off over a couple of Superpowers.”
It's certainly an endearing attitude to have, but it should be obvious that the wasting of a non-competitor's time with this sort of thing ought to be worthy of punishment.

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posted at: 12:25am on 17-Aug-2018
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Video Games In Germany Can Now Maybe Kinda Sometimes Have Swastikas

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As you likely know, Germany has some very restrictive laws surrounding how and when Nazi iconography can appear in the country. This has resulted in a heavily-policed artistic community, particularly when it comes to video games, which has produced some fairly funny happenings about games accidentally going to Germany chock full of Nazi stuff and other funny happenings in which the game makers make a show of doing as little as possible to get around the law. In the realm of other media, such as movies, the German government has put in place a review process to make sure that the use of Nazi symbols furthers the artistic or historical accuracy of the entertainment. Video games have not had such a review system. And, look, on some level this sort of attempt by Germany to restrict the use of these hateful symbols is understandable. The kind of global embarrassment that comes with committing the worst genocide in history is the sort of thing that leaves a mark. But we've also pointed out that these German laws aren't so much stamping out fascist thought as they are putting the government's collective head in the sand as some kind of grand virtue signal to the planet.Which is why it's at least a tepid step forward that Germany has revised its position and will now allow Nazi iconography in some video games, some of the time, on a case by case basis.

The government has moved from a blanket ban on swastikas and Hitler moustaches to a case-by-case basis, which will be administered by the USK, Germany’s ratings board.The official release with the news gives the specifics:When games that depict symbols of unconstitutional organisations are submitted to the USK for an age rating, the USK committees can now assess them on a case-by-case basis to decide whether the ‘social adequacy clause’ (Sozialadäquanzklausel, as laid out in section 86, subsection (3) of the German Criminal Code) applies. In this context, ‘social adequacy’ means that symbols of unconstitutional organisations can be used in games in individual cases, as long as those symbols serve an artistic or scientific purpose, or depict current or historical events.
Again, the big shift here is actually one of cultural importance, which is the German government will now consider video games as an artistic form, which they undoubtedly are. Movies and television have had a similar review process in place for years, but games were left out. And, as the gaming art form continues to gain ground as the preferred entertainment medium, it was impossible for the German government to ignore this forever. So, while it seems odd to declare a victory in which more swastikas will be seen by the German public, this is much more to do with an acknowledgement of culture than cheering on the Third Reich.
Felix Falk, Managing Director of the German Games Industry Association, says:This new decision is an important step for games in Germany. We have long campaigned for games to finally be permitted to play an equal role in social discourse, without exception. Computer and video games have been recognised as a cultural medium for many years now, and this latest decision consistently cements that recognition in terms of the use of unconstitutional symbols as well.
It remains to be seen whether or not older games like Wolfenstein will resubmit the original forms of its games for inclusion in all of this, but at least the German government will no longer act as though it can pretend that Nazis were never a thing.

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posted at: 12:25am on 16-Aug-2018
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Court Says CBP Likely Violating First Amendment By Forbidding Photography Of Publicly-Viewable Border Crossings

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Another (partial) win for the First Amendment, the ACLU, and American citizens. The Ninth Circuit Court of Appeals has overturned a decision forbidding the photography of CBP officers at border crossings. (h/t Mitra Ebadolahi)

The CBP seems to have a problem respecting the First Amendment rights (along with several other rights) of American citizens when engaged in its border patrolling and protecting. This same appeals court recently allowed the heavily-harassed citizens of an Arizona border town to move forward with their First Amendment lawsuit against the agency, ruling that the CBP acted arbitrarily when dealing with protesters and activists documenting checkpoint activity. The record clearly showed the CBP removed people it didn't like from its imaginary zone of exclusion while allowing other random citizens more aligned with the CBP's open harassment of American citizens to venture inside the ad hoc DMZ to harass citizens documenting harassment.

This lawsuit centers on allegations CBP officers confiscated cameras and phones of people documenting border checkpoint activity and destroyed photos and videos. Here are the narratives of the two plaintiffs, taken from the Appeals Court decision [PDF]:

On the afternoon of April 19, [Ray] Askins stood at the intersection of First Street and Paulin Avenue on the U.S. side of the border, near the shoulder of the streets and immediately in front of the park. He was approximately 50–100 feet from the exit of the secondary inspection area, and he had not crossed the border or otherwise passed through border security to reach his location. Standing in the street, Askins took three or four photographs of the exit of the secondary inspection area. Multiple CBP officers approached Askins on the street to demand he delete the photographs he had taken. When Askins refused, the officers threatened to smash his camera, then searched and handcuffed him, confiscated his property, and detained him inside a secondary inspection area building. Askins was released after approximately twenty-five to thirty-five minutes and his property was returned, at which time he discovered that CBP had deleted all but one of his photographs of the exit of the secondary inspection area.

[...]

[Christian] Ramirez observed male CBP officers at a security checkpoint below inspecting and patting down only female travelers. Concerned that the officers might be acting inappropriately, Ramirez observed the checkpoint from the bridge for ten to fifteen minutes and took approximately ten photographs with his cellphone camera. Ramirez and his wife were approached by men who appeared to be private security officers. The men ordered them to stop taking photographs. The officers also demanded their identification documents, which Ramirez refused to provide as they had already passed through border inspection. The officers radioed for backup as Ramirez and his wife walked away, and at the bottom of the bridge, Ramirez was met by five to seven CBP officers. The CBP officers questioned Ramirez, and, without Ramirez’s consent, a CBP officer confiscated Ramirez’s cellphone and deleted all of the photographs Ramirez had taken from the bridge. A U.S. Immigration and Customs Enforcement officer confiscated the Ramirezes’ passports and walked away, leaving Ramirez surrounded by the CBP officers. After ten to fifteen minutes, their documents were returned to them and the Ramirezes were allowed to leave.

Both plaintiffs allege the CBP's practices violate the First Amendment. They are not seeking to photograph the inside of buildings or other sensitive areas not visible to the public eye, but rather border checkpoints where inspections and questioning are performed in public, completely visible to passersby. The CBP somehow believes what happens in public can't be documented by the public.

The district court decided to take the CBP up on its irrational argument, tossing aside logic to embrace the agency's claims about the super-secret nature of national security activities performed out in the open, visible to the unadorned eye. The appeals court says this isn't the way things are done. The lower court should not have lifted the government's burden of proof onto its own shoulders and carried it home for it.

The district court found that the CBP policies survived strict scrutiny because of “the extremely compelling interest of border security” and the government’s general interest in “protecting United States territorial sovereignty.” To this, the government adds that the CBP policies serve compelling government interests in protecting CBP’s law enforcement techniques and the integrity of on-going investigations; protecting the privacy of travelers, suspects, and sensitive digital information; ensuring the safe and efficient operation of the ports of entry; and protecting against terrorist attacks. In conclusory fashion, the district court held that the policies were the least restrictive means of serving these interests.

These conclusions are too thin to justify judgment for the government on a motion to dismiss. [...] It is the government’s burden to prove that these specific restrictions are the least restrictive means available to further its compelling interest. They cannot do so through general assertions of national security, particularly where plaintiffs have alleged that CBP is restricting First Amendment activities in traditional public fora such as streets and sidewalks.

The decision does not hand the plaintiffs a complete victory. It does shift the burden of proof back on the government and instructs the lower court to allow the case to proceed to see if the government can actually offer up anything supporting its random time/place restrictions that border on total violation of established First Amendment principles. The appeals court seems inclined to believe the CBP cannot simply forbid photography of publicly-viewable enforcement activities by members of the public. We'll have to see what the lower court does on remand, considering it already granted the government a free pass once, because National Security > Established Constitutional Rights, apparently.

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posted at: 12:25am on 16-Aug-2018
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