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October 2017
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Idea v. Expression: Game Studio Bluehole Gets Its Fur Up Over Epic Games Putting 100 Vs. 100 Player Battle Royale Into Game

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Of all the things that most people get wrong about copyright law, the idea/expression dichotomy has to rank near the top. The confusion over this is easily explained by the pervasive ownership culture that has emerged organically from an intellectual property ecosystem that only moves in the direction of more protectionism. Because of that culture, most people simply assume that the creation of the idea is itself a copyrightable thing, rather than the reality which is that copyright only applies to specific expression. The useful example at hand is that one cannot copyright a superhero named after an animal that wears a mask and a cape, but one can copyright Batman, particularly any books, comics, or movies in which Batman is depicted.As already stated, this reality evades many people. But it probably shouldn't evade those in industries dominated by copyright, such as the video game industry. Despite that, Bluehole, developers of the wildly popular PlayerUnknown's Battlegrounds developer, appears to have its fur up over another studio, Epic Games, releasing a "battle royale" game mode for its Fortnite title.

In a press release this morning, PlayerUnknown's Battlegrounds developer Bluehole took a shot at Epic Games, calling out Fortnite for cloning the 100-man PVP gameplay style with its upcoming free update ‘Battle Royale.’“We’ve had an ongoing relationship with Epic Games throughout PUBG’s development as they are the creators of [Unreal Engine 4], the engine we licensed for the game,” Bluehole vice president Chang Han Kim said in the press release. “After listening to the growing feedback from our community and reviewing the gameplay for ourselves, we are concerned that Fortnite may be replicating the experience for which PUBG is known.”
This is a game studio getting upset over what is purely an idea, not an expression. Having 100 players face off against another 100 players in a game mode is not expression and is no more unique than, say, first-person shooter games, itself a genre with innumerable entrants. Bluehole goes on to note that it is going to "contemplate further action", but whatever that action would be would not include a successful legal action against Epic Games. There is simply nothing remotely like copyright infringement here.Strangely, Bluehole also makes much of its claim that Epic Games referenced PlayerUnknown Battlegrounds to promote Fortnite, which sort of sounds like trademark law territory. The problem, both from a legal standpoint and from a public relations standpoint, is that this claim appears to amount to Epic Games applauding Bluehole on the Playstation Blog.
This may be a reference to Epic creative director Donald Mustard’s note on the PlayStation Blog, in which he wrote: “We love Battle Royale games like PUBG and thought Fortnite would make a great foundation for our own version.”
But that's neither trademark infringement nor evidence for copyright infringement. Even as Epic gives a full-throated acknowledgement that it is seeking to emulate a game mode from Bluehole's game, it's just a game mode, not a specific expression. That simply isn't copyright infringement, any more so than someone saying, "Doom was great, so now I want to make a first-person shooter game like it."Idea/expression dichotomy: learn it, folks. It will keep you from paying lawyers to lose a case for you.

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posted at: 12:00am on 29-Sep-2017
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Velcro's Hilarious Trademark Lesson Video Actually A Good Lesson In Just How Stupid Trademark Law Has Become

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So, you've probably heard stories in the past about the fear some trademark lawyers have about "genericide" -- where their product's name becomes so attached to the product that it's considered generic and the trademark no longer applies? Think kleenex and xerox for example. We've found, over the years, that people get a bit too worked up about this, leading trademark lawyers to make some really dumb demands along the way to try to "prevent" what is generally impossible to actually prevent. We also often see people claim (falsely) that this means companies are required to stop any and all uses of their mark, even when not infringing (or, even worse, seeing people falsely claiming that the same thing applies to copyright). Either way, the company Velcro has taken... well... quite a unique approach to the fact that everyone calls their most famous product "velcro" -- even when made by competitors. They made an absolutely hilarious "We are the World"-style video begging you not to call it Velcro and telling you, in no uncertain terms, that they it's "fucking hook & loop." Really.

When I first saw it, I thought it was a John Oliver or SNL-style parody video, but nope. It's real. It's on Velcro's official YouTube feed, and they even have a behind the scenes "making of" video to explain how the video was made and how it came about (including the fact that two actual Velcro lawyers are in the video).
Of course, they insist they're doing this to get people talking about the importance of calling it "hook and loop" though I think at best, it will just get people talking about how incredibly dumb trademark law has become, where this kind of thing is seen as necessary. The only people who will now start calling it "hook and loop" are likely to be people doing it ironically. In which case, they may go with the longer "this is fucking hook and loop," as the song suggests. But, as the song itself suggests, it's totally ridiculous that the company has to do this to try to get you to stop saying the brand name that the company spent "60 plus years" building. The song also jokingly references other genericized brands, such as Clorox, Band-Aid and Rollerblades.Thankfully, they don't seem to get the finer points of the law really wrong in the song -- noting that the patent on velcro expired 40 years ago, and if everyone calls everything similar velcro, the company might "lose our circle R." Of course, they leave out the fact that if they lose the trademark... it's actually probably not that big a deal. People will still call all similar products velcro, but Velcro-brand velcro will almost certainly still be able to charge a premium, since people will recognize the brand name.And that's really what highlights how dumb all of this is. Even if you lose the trademark to genericide, that doesn't mean the company packs up and moves on. It just shows how much the brand itself has resonated, and companies have lots of ways to continue to capitalize on that brand, even without the registered trademark. So, while I can always get behind hilarious videos concerning oddities in trademark, copyright or patent law, this video seems like a much better lesson in the stupidity of trademark law (and how much lawyers overreact to the fear of genericide) than any legitimate argument against calling someone else's velcro-like fastner "velcro."

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posted at: 12:00am on 26-Sep-2017
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Sega Releases 'Sonic Mania' Without Informing PC Customers Of Denuvo Inclusion And Always Online Requirements

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Searching for stories about Sega here at Techdirt results in a seriously mixed bag of results. While the company has managed to be on the right side of history on issues like SOPA and fan-made games, it has also managed to be strongly anti-consumer on game mods and has occasionally wreaked havoc on the YouTube community, all in the name of copyright protectionism. Despite all of this, Sega has gone to some lengths to successfully craft for itself a public image more accessible and likeable than its long-time rival Nintendo.Stories like the following will put dents in that image, however. Sega recently ported its new title Sonic Mania to the PC and released it on the Steam platform. The port also included Denuvo DRM and an always-online requirement, except that it (oops!) forgot to tell anyone about either.

I tried loading the Windows version of Sonic Mania while my Steam account was offline. That's when Sonic Mania informed me, in no uncertain terms, that "Steam user must be logged in to play this game."Turns out, Sega has applied the much-malignedDenuvo copy-protection system to Sonic Mania's PC version—and this Denuvo implementation won't unlock the game for players so long as Steam is operating in "offline mode." Until the game receives an update, Sonic Mania fans hoping to play the PC version in an offline capacity are out of luck. (Your backup option, should you want to do something like board a plane, is to boot the game while connected to Wi-Fi, then disconnect from the Internet and leave the game running in the background until you're ready to play. It's not necessarily an ideal workaround.)
Gamers immediately began complaining both that the DRM was keeping them from playing their legitimately purchased game and that the Steam store page for Sonic Mania was devoid of any notification of Denuvo or its online requirement in the system requirements page, or anywhere else for that matter. Somewhat oddly, a Steam account with the handle of "Sega Dev" responded to the complaints, saying the omission on the store page was a mistake. That mistake has been rectified and the store page now informs buyers of the Denuvo requirement. But that same account also informed Steam users that "Sonic Mania is intended to be played offline", and has promised to investigate the issue.Even stranger, the PR lead for the Sonic franchise went even further and practically begged for the public to complain to the company about Denuvo and the online requirement.

I simply can't recall ever having seen anything remotely like this, with the PR wing of a company soliciting complaints to corporate in what sure seems like a way to get corporate to move off of a DRM. It seems there is some infighting at Sega over this requirement, though to what level that infighting rises is unknown to me. Any Sega employees reading this are free to contact me and relay your concerns.Regardless, this is a terrible look for Sega among the gaming community. Including a much-maligned DRM and requiring a single-player game to be online to play it can only have one sort of impact on the company's standing in the public. While Sega has not removed Denuvo from the game entirely, it has since released a patch that allows the game to be played offline. The damage, however, has likely already been done.

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posted at: 12:01am on 31-Aug-2017
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IOT Devices Provide Comcast A Wonderful New Opportunity To Spy On You

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For some time now we've noted how poorly secured IOT devices provide a myriad of opportunities for hackers looking for new attack vectors into homes and businesses. That's of course when these devices aren't just coughing up your personal data voluntarily. Whether it's your smart fridge leaking your Gmail credentials or your internet-connected TV transmitting your personal conversations over the internet unencrypted, we've noted time and time again how IOT manufacturers consistently make privacy and security an afterthought -- one that's going to ultimately cost us more than some minor inconvenience.But in addition to the internet of broken things being a privacy and security dumpster fire, these devices are providing a wonderful new opportunity for larger ISPs looking to monetize the data you feed into their networks on a daily basis. A new study out of Princeton recently constructed a fake home, filled it with real IOT devices, and then monitored just how much additional data an ISP could collect on you based in these devices' network traffic. Their findings? It's relatively trivial for ISPs to build even deeper behavior profiles on you based on everything from your internet-connected baby monitor to your not so smart vibrator.We've long noted that while encryption and VPNs are wonderful tools for privacy, they're not some kind of panacea -- and the researchers found the same thing here:

"...encryption doesn't stop ISPs from knowing which internet-of-things devices their users have, nor does it stop them seeing when we use those devices. In the Princeton study, ISPs could track a user's sleep patterns by detecting when a sleep tracker was connecting to the internet. It also revealed that ISPs could identify when a home security camera detected movement and when someone was watching a live stream from their security camera."
Similar concerns have been raised (and promptly ignored in most areas) regarding information collected from smart energy meters by your power utility, since power usage can similarly provide all manner of monetizeable insight into your daily behavior. The researchers do note that more sophisticated users could use a VPN to confuse their ISP, but the full study indicates there will be some impact on network performance that could be a problem on slower connections:
"The authors say there might be ways to cut down the snooping abilities of ISPs. One possible defence involves deliberately filling a network with small amounts of traffic. This could be done by running all your internet traffic through a VPN and then programming the VPN to record and play back that traffic even when the IOT device is not in use, making it tricky for ISPs to work out when a particular device is actually being used. However, this would probably slow down the network, making it a somewhat impractical defence against network observations."
Aren't you glad Congress recently voted to kill consumer broadband privacy protections solely for the financial benefit of Comcast, AT&T, Verizon and Charter (Spectrum)? Those fairly basic rules required that ISPs be entirely transparent about what data they're collecting and who they're selling it to. The rules, proposed after Verizon was caught modifying user data packets to track online behavior (without telling anyone), also would have required customers opt in to more sensitive financial data collection. Without them, oversight of ISP data collection is sketchy at best, no matter what large ISPs and their friends claim.While the lack of ISP transparency as to what's being collected and sold is one problem, so too is the fact that most of these devices offer little to no insight or control over what kind of data and information they're transmitting. That leaves the onus entirely on the consumer to try and cobble together an imperfect array of technical solutions to minimize ISP snooping and protect themselves (often impossible for your average grandparent or Luddite), or to take the smarter path in the smart home era and resort to older, dumber technologies whenever and wherever possible.

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posted at: 12:00am on 29-Aug-2017
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