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This Week In Techdirt History: November 12th - 18th

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Five Years AgoWe've been talking a lot about copyright in these history posts recently, but this week in 2012 there was more news on the patent front. While patent troll TQP Development was launching a new crusade against hundreds of companies, the patent-aggressive medical device company Medtronic was getting a taste of its own medicine, and HTC and Apple were putting a patent dispute to rest. IBM's patent lawyer was making some vague arguments in defense of the patent system, while an excellet Wired article was laying out said system's many problems, and a Harvard research scientist was declaring sharing discoveries to be more efficient and honorable than patenting them.Ten Years AgoThere was plenty of patent news this week in 2007 too, with a random patent over computer databases rearing its head to extract some cash from Google, and an astounding new case over a text messaging patent targeting 131 defendants. Patent hoarder Acacia was launching some new attacks while losing at least one lawsuit, and Nathan Myhrvold was raising $1-billion to buy even more patents to troll people with. Garmin and TomTom settled a patent dispute to concentrate on acquisition fights, an analyst firm succeeded in escaping an aggressive patent lawsuit over data collection, and we took a closer look at the sovereign immunity laws that were letting State Universities sue over patents without ever getting sued back.Fifteen Years AgoThis week in 2002, Hollywood was launching its too-little-too-late VOD service Movielink, while music labels were struggling to catch up with digital distribution after dragging their heels for far too long (with EMI taking an extremely slight lead). While the legal battle over DVD copying software remained unresolved, the software was released anyway, right around the same time that Sony and Phillips teamed up to buy a DRM company.But probably our most interesting headline in retrospect was US Plans Huge Computer System To Spy On The Public. This, in 2002, referred to the first reports on DARPA's new Information Awareness Office, which was so controversial that Congress would de-fund it the following year. It would be another ten years before the Snowden leaks revealed that its key surveillance programs had simply been renamed and moved to different agencies, and continued to receive funding under classified annexes.

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posted at: 12:00am on 19-Nov-2017
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Judge Halts Copyright Troll's Lawsuit Against A Now-Deceased Elderly Man With Dementia And An IP Address

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Stories about copyright trolls issuing questionable settlement demands and lawsuits using laughably flimsy evidence with no regard to mitigating circumstances are somewhat common around here. The most egregious cases range from trolls sending threat letters to the elderly to flat out suing the innocent. This sort of thing is essentially inherent in a business model that closely apes an extortion ring, and here's another quintessential example of that.It all started when Venice PI sued a man for being part of a torrent swarm offering the movie Once Upon a Time in Venice. The judge in the case has put the proceedings on hold, noting rather harshly that Venice PI's evidence sucks, and that the man in question had severe enough dementia that his family says he couldn't even have operated a computer as described in the lawsuit and, at age 91, has died.

The man’s wife informed a federal court in Seattle that he passed away recently, at the respectable age of 91. While age doesn’t prove innocence, the widow also mentioned that her husband suffered from dementia and was both mentally and physically incapable of operating a computer at the time of the alleged offense.These circumstances raised doubt with US District Court Judge Thomas Zilly, who brought them up in a recent order (citations omitted).“In two different cases, plaintiff sued the same, now deceased, defendant, namely Wilbur Miller. Mr. Miller’s widow submitted a declaration indicating that, for about five years prior to his death at the age of 91, Mr. Miller suffered from dementia and was both mentally and physically incapable of operating a computer."
Oops. Still, the condition of the copyright troll's victim wasn't the topic which received Judy Zilly's harshest criticism. That distinction goes to the quality and quantity of evidence Venice PI produced in its lawsuit. The Judge notes that this evidence amounts essentially to nothing more than an IP address. He then goes on to suggest that any tracking of IP addresses that pointed to Mr. Miller being a torrent-y type of guy should have its accuracy immediately questioned. Beyond that, the judge indicated that Venice PI can't use that IP address to try to find, you know, actual evidence.
Moreover, plaintiff may not, based solely on IP addresses, launch a fishing expedition aimed at coercing individuals into either admitting to copyright infringement or pointing a finger at family members, friends, tenants, or neighbors.
To that end, lawyers for Venice PI are barred from having any contact with Miller's family or any other unnamed defendant in this case. In addition, Zilly is demanding any other evidence the plaintiff's can produce -- likely none --, as well as information on how IP addresses in bittorrent swarms might be spoofed. The judge goes on to say that if no further evidence can be presented, the claims will be dismissed with prejudice.It's simply great to see a court get this so correct in a copyright troll case. Too often trolls are allowed to skate by in presenting evidence that isn't evidence at all, with no ground given to the sort of mitigating testimony offered by Miller's widow. That Venice IP hasn't dismissed their case against the now-deceased man is an added stain on its trollish soul.

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posted at: 12:00am on 18-Nov-2017
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Good Ruling: Court Affirms Fox's Victory In Trademark Suit From Empire Distribution Over Its Hit Show 'Empire'

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In far too many trademark disputes, including those that actually reach the courthouse, there is far too little in the way of nuance when it comes to ruling. While I've long complained about a lack of focus on some of the higher-level concepts within trademark law, such as how the overall focus should be on public confusion and the simple fact that the category designations within the USPTO are far too broad, there is typically not enough recognition in the real minutia within the law as well.But that simply isn't the case in a ruling from the 9th Circuit Court of Appeals on a lawsuit filed by Fox Television for declaratory relief from threats issued by Empire Distribution, Inc., a record label, over trademark concerns and Fox's hit show Empire.Some background is in order. Empire, for those of you who don't know, is a show about a family-run record label in New York City called Empire Enterprises. Empire Distribution is a real-life label that has worked with names as big as T.I. and Snoop Dogg. At some point, Empire Distribution sent trademark threat notices to Fox, claiming that the name of the show was a trademark violation. In response, Fox filed for declaratory relief, which the district court granted. Empire Distribution appealed, resulting in the 9th Circuit Court of Appeals reviewing the decision and affirming it.But it's why the ruling was affirmed that is the star of this legal show, with the detailed court opinion laying out the nuance of the law.

On Thursday, the 9th Circuit reviewed the district court's summary judgment decision, and in affirming Fox's victory, decided to apply the Rogers test, which was first developed by a sister appellate circuit in 1989 in response to Federico Fellini's 1986 film Ginger and Fred, which triggered a lawsuit by Ginger Rogers.
The Rogers test, as it's called, resulted from that case and says that the title of a work is not infringing on trademark except if the title has no artistic relevance to the overall work or if it explicitly misleads the public as to the source of the work. For example, if someone were to create a television show called Michael Jordan's Cooking Hour, the public would think that the former Bulls star was involved with it. If he wasn't, the title of the show would infringe on any trademarks he might have for television shows (along with a host of other infringements, likely). But Empire, the Fox show, gets its name from the fictitious company it portrays, along with its setting in New York City, giving the title artistic relevance. It also does nothing to attempt to mislead the public into thinking that there is any involvement or reference to Empire Distribution. Therefore, Empire passes the Rogers test.Empire Distribution argued that part of the artistic relevance portion of the Rogers test includes a requirement for the new work to reference the older entity to be considered artistically relevant and protected. The court basically slaps that idea down and suggests that Empire Distribution's legal team doesn't understand the Rogers test at all.
This is how a work fails the first prong of the Rogers test: by bearing a title which has no artistic relevance to the work. A title may have artistic relevance by linking the work to another mark, as with 'Barbie Girl,' or it may have artistic relevance by supporting the themes and geographic setting of the work, as with Empire. Reference to another work may be a component of artistic relevance, but it is not a prerequisite. Accordingly, the relevance of the word 'empire' to Fox’s expressive work is sufficient to satisfy the first prong of the Rogers test.
The court goes on to say that Empire passes the Rogers test on the second prong as neither the show nor its title makes any claims or references to Empire Distribution, and is therefore doing nothing that is "explicitly misleading."For us trademark nerds, it's a great ruling with a wonderful explanation of some nuance in trademark law and precedent. For Empire Distribution, who never should have made such silly threats, it's simply a judicial beatdown.

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posted at: 12:00am on 18-Nov-2017
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New Study Finds Poorly Secured Smart Toys Lets Attackers Listen In On Your Kids

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We've long noted how the painful lack of security and privacy standards in the internet of (broken) things is also very well-represented in the world of connected toys. Like IOT vendors, toymakers were so eager to make money, they left even basic privacy and security standards stranded in the rear view mirror as they rush to connect everything to the internet. As a result, we've seen repeated instances where your kids' conversations and interests are being hoovered up without consent, with the data frequently left unencrypted and openly accessible in the cloud.With Luddites everywhere failing to realize that modern Barbie needs a better firewall, this is increasingly becoming a bigger problem. The latest case in point: new research by Which? and the German consumer group Stiftung Warentest found yet more flaws in Bluetooth and wifi-enabled toys that allow a total stranger to listen in on or chat up your toddler:

"The investigation found that four out of seven of the tested toys could be used to communicate with the children playing with them. Security failures were discovered in the Furby Connect, i-Que Intelligent Robot, Toy-Fi Teddy and CloudPets.With each of these toys, the Bluetooth connection had not been secured, meaning the researcher did not need a password, pin or any other authentication to gain access. Little technical knowhow was needed to hack into the toys to start sharing messages with a child.
Again, the problem isn't just bad security, it's the total lack of security:
"With the i-Que Intelligent Robot, available from Argos and Hamleys, the investigation discovered that anyone could download the app, find an i-Que within their Bluetooth range and start using the robot's voice by typing into a text field. The toy is made by Genesis, which also manufactures the My Friend Cayla doll, recently banned in Germany owing to security and hacking concerns. Both toys are distributed in the UK by Vivid."
Genesis was already facing a lawsuit here in the States accusing it of violating COPPA (the Childrens' Online Privacy Protection Act of 1998) by failing to adequately inform parents' that their kids conversations and personal data collected by the toys are being shipped off to servers and third-party companies. Said lawsuit also points out how the privacy policies governing the collection of kids' data aren't clear, aren't prominently displayed, and often change without notice. Overseas the reaction has been notably more hysterical, with German regulators urging parents to destroy these not-so-smart dolls or pay massive fines.As is usually the case, the companies responsible for this total privacy and security failure like to portray these flaws as limited in scope and unlikely to be exploited:
"The British Toy and Hobby Association, of which Vivid and Hasbro are members, said: The industry takes its responsibilities incredibly seriously when making products for children, with BTHA members investing heavily in everything from toy safety to data privacy and online security."We are aware of the Which? report, but understand the circumstances in which these investigations have taken place rely on a perfect set of circumstances and manipulation of the toys and the software that make the outcome highly unlikely in reality."
Again though, this is often not just vulnerabilities we're talking about, but no security or privacy standards whatsoever. The idea that this isn't being exploited, however infrequent, seems unlikely -- especially as the media highlights more and more similar flaws. And again, with the internet of broken things introducing millions of new attack vectors into homes and businesses worldwide every day, the impact from this sort of privacy and security apathy will be cumulative.

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posted at: 12:00am on 17-Nov-2017
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