We’ve had plenty of posts discussing all manner of behavior from the Los Angeles Police Dept. and/or the LAPD union here at Techdirt. As you might imagine if you’re a regular reader here, the majority of those posts haven’t exactly involved fawning praise for these supposed crimefighters. In fact, if you went on a reading blitz of those posts, you might even come away thinking, “You know what? Fuck the LAPD!”

Well, if you wanted to display your sentiments while you went about your day, you might go over to the Cola Corporation’s website to buy one particular shirt it had on offer there before they completely sold out.

Now, it’s not uncommon for misguided entities to issue intellectual property threat letters over t-shirts and apparel, even when it is of the sort that is obviously fair use. Given that, you might have thought it would be the Los Angeles Lakers that sent a nastygram to Cola Corp. After all, the logo in question is clearly a parody of the LA Lakers logo.

Nope!

It was the Los Angeles Police Foundation via its IMG representatives. The LAPF is something of a shadow financier of the LAPD for equipment, including all manner of tech and gear. We have no idea how an entertainment agency like IMG got in bed with these assbags, but it was IMG sending the threat letter you can see below, chock full of all kinds of claims to rights that the LAPF absolutely does not and could not have.

If you can’t see that, it’s a letter sent by Andrew Schmidt, who represents himself as the Senior Counsel to IMG Worldwide, saying:

RE: Request to Remove Infringing Material From www.thecolacorporation.com
Dear Sir/Madam:

I am writing on behalf of IMG Worldwide, LLC (“IMG”), IMG is the authorized representative of Los Angeles Police Foundation CLAPF) LAPF is one of two exclusive holders of intellectual property rights pertaining to trademarks, copyrights and other licensed indicia for (a) the Los Angeles Police Department Badge; (b) the Los Angeles Police Department Uniform; (c) the LAPD motto “To Protect and Serve”; and (d) the word “LAPD” as an acronym/abbreviation for the Los Angeles Police Department (collectively, the “LAPD IP”). Through extensive advertising, promotion and the substantial sale of a full range of licensed products embodying and pertaining to the LAPD IP, the LAPD IP has become famous throughout the world; and as such, carries immeasurable value to LAPF.

We are writing to you regarding an unauthorized use of the LAPD IP on products being sold on your website, www.thecolacorporation.com (the “Infringing Product”). The website URL and description for the Infringing Product is as follows:
https://www.thecolacorporation.com/products fack-the- lupd pos-1&sid=435934961&&variant=48461787234611 FUCK THE LAPD
For the avoidance of doubt, the aforementioned Infringing Product and the image associated therewith are in no way authorized or approved by LAPF or any of its duly authorized representatives.

This letter hereby serves as a statement that:

1. The aforementioned Infringing Product and the image associated therewith violate LAPF’s rights in the LAPD IP
2. These exclusive rights in and to the LAPD IP are being violated by the sale of the Infringing Product on your website at the URL mentioned above;
3. [Contact info omitted]
4. On information and belief, the use of the LAPD IP on the Infringing Products is not authorized by LAPF, LAPF’s authorized agents or representatives or the law.
5. Under penalty of perjury, I hereby state that the above information is accurate and I am duly authorized to act on on behalf of the rights holder of the intellectual. property at issue I hereby request that you remove or disable access the above-mentioned materials and their corresponding URL’s as they appear on your services in as expedient a manner as possible.
   

So, where to begin? For starters, note how the letter breezily asserts copyright, trademark, and “other licensed indicia” without ever going into detail as to what it thinks it actually holds the rights to? That’s an “indicia” of a legal threat that is bloviating, with nothing to back it up. If you know what rights you have, you clearly state them. This letter does not.

If it’s a copyright play that the LAPF is trying to make, it’s going to go absolutely nowhere. The use is made for the purposes of parody and political commentary. It’s clearly fair use, and there are plenty of precedents to back that up. Second, what exactly is the copyright claim here? It’s not the logo. Again, if anything, that would be the Lakers’ claim to make. The only thing possibly related to the LAPD would be those letters: LAPD. And, no, the LAPD does not get to copyright the letters LAPD.

If it’s a trademark play instead, well, that might actually work even less for the LAPF, for any number of reasons. Again, this is parody and political commentary: both First Amendment rights that trump trademarks. More importantly, in trademark you have the question of the likelihood of confusion. We’re fairly sure the LAPF doesn’t want to make the case that the public would be confused into thinking that the Los Angeles Police Foundation was an organization that is putting out a “Fuck the LAPD” t-shirt. Finally, for there to be a trademark, there has to be a use in commerce. Is the LAPF selling “Fuck the LAPD” t-shirts? Doubtful.

But that’s all sort of besides the point, because the LAPF doesn’t have the rights IMG asserted in its letter. Again, the only possible claim that the LAPF can make here is that it has ownership to the letters LAPD. And it does not. Beyond the fact that it had no “creative” input into LAPD, the LAPD is a city’s law enforcement agency and you cannot copyright or trademark such a thing. And, as we’ve discussed multiple times in the past, government agencies don’t get to claim IP on their agency names. The only restrictions they can present are on deceptive uses of logos/seals/etc.

But that is clearly not the case here. And we already have some examples from a decade ago of government agencies demanding the removal of parody logos and… it not ending very well for the government. 

So, what is actually happening here is that the LAPF/LAPD (via IMG) is pretending it has the right to screw with private citizens in ways it absolutely does not, and is using those false rights to harass those private persons with threatening behavior to intimidate them into doing what the LAPF wants. Which, if I’m being totally honest here, is certainly on brand as roughly the most police-y thing it could do in response to a simple t-shirt that is no longer even for sale.

Now, you might imagine that the Cola Corporation’s own legal team would reply to the silly threat letter outlining all of the above, crafting a careful and articulate narrative responding to all the points raised by the LAPF, and ensuring that their full legal skills were on display.

Instead, the company brought on former Techdirt podcast guest, lawyer Mike Dunford, who crafted something that is ultimately even better.

If you can’t read that, you’re not missing much. It says:

Andrew,

Lol, no.

Sincerely,
Mike Dunford

Perfect. No notes. May it go down in history alongside Arkell v. Pressdam, or the infamous Cleveland Browns response to a fan complaining about paper airplanes, as the perfect way to respond to absolutely ridiculous legal threat letters.

For what it’s worth, Dunford’s boss, Akiva Cohen, noted that this letter was “a fun one to edit.” We can only imagine.

This was a fun one to edit

[image or embed]

— AkivaMCohen (@akivamcohen.bsky.social) Apr 18, 2024 at 2:47 PM

We’ve had several posts on the video game sensation that is Palworld in the past. Given that the game has been described by others as “Pokémon, but with guns”, we kicked things off both wondering if Nintendo was going to try to take some kind of misguided legal action on the game, while also pointing out that the game is an excellent case study in copyright’s idea/expression dichotomy. After all, the game does not do any direct copying of any Pokémon IP, but does draw obvious inspiration from some of the base ideas behind that IP. In fact, highlighting the dichotomy further was a mod that injected actual Pokémon IP into Palworld, which Nintendo then managed to get taken down.

One of the things writers of this sort of content like me tend to fret about, however, is how often rank hypocrisy suddenly shows up among subjects such as the creators behind Palworld. It’s not uncommon to see a content creator attempt to go after folks doing to them exactly what the creator did in drawing inspiration from others. If you were worried the people behind Palworld would fall into this category, however, it appears very much that you were worried for nothing.

With the success of the game, it was only a matter of time before someone, or many someones, tried to cash in on its success by making similar games, or “clones.” PocketPair CEO Takuro Mizobe noticed this was happening with Palworld and reacted thusly.

“Tencent is already making a Palworld clone game!” PocketPair CEO Takuro Mizobe recently tweeted,” according to a translation by Automaton. He seemed happy about it. “These are incredible times,” he wrote. Some initially interpreted Mizobe as being critical of these moves. An IGN story described him as accusing other companies of ripping off Palworld, a framing the CEO rejected.

“To ‘accuse’ someone of something, means to say they are doing something wrong,” Mizobe wrote in a follow-up tweet responding to the IGN story. “I don’t think what Tencent is doing is wrong. I’m proud that other companies want to make games like Palworld. The industry historically innovates when we borrow ideas from games we love. I’m surprised that many high-quality mobile games are already in development.”

No going legal. No threats. Not even a hint of a complaint. Instead, Mizobe acknowledged what we all already know to be true: video games, like other forms of culture, are and have always been built on what came before it. If the success of Palworld spawns similar games after the fact, that’s not only not a problem, it’s a good thing for gaming culture. Hell, Mizobe even went so far as to praise some of these games’ quality.

Imagine Nintendo doing anything like this. You simply can’t. In fact, when Palworld was released, Nintendo made some vague comments about looking into the game to see if it wanted to pursue any legal action. You know, the exact opposite of the route Mizobe took.

Who knows if these new Palworld clones that Tencent and others are apparently developing will ever see the light of day. We won’t know if they’re actually rip-offs until they’re out, but Mizobe doesn’t seem to mind either way.

And why should he? I imagine he’s far too busy counting all the money his company is making by focusing on making a successful game rather than wringing his hands over some clones that may or may not ever gain any traction.

We’ve written about Bell Canada plenty over the years and not typically for good reasons. This is a company that wanted to ban VPNs to combat people getting around geo-blocked content, has a habit of acting petulant when it comes to regulators, and has engaged in other consumer-unfriendly practices. So, not the best reputation when it comes to treating its own customers, and the larger public, particularly well. You can think of them as something like a Canadian version of Comcast in the States.

As you might expect from a company that likes to wield a heavy hand, Bell Canada has been removing the ability for subscribers to use 3rd party DVRs in their homes, pushing people instead to use its cloud-based PVR platform to record content instead. Customers that signed up for that did so under an advertisement of a 1 year retention policy on recorded content.

Until today, that is, when Bell Canada announced and will begin enforcing a 60 day retention instead. Suprise!

On May 1, Fibe TV will automatically delete recordings stored on its Cloud PVR (personal video recorder) offering once the recordings hit 61 days of age, as confirmed by Canadian online newspaper Daily Hive. Currently, customers maintain access to recordings stored via Cloud PVR for 365 days.

Fibe TV apparently started alerting customers of the upcoming change this month.

A Bell Canada spokesperson, Jacqueline Michelis, minimized the idea of disruption to customers, telling Daily Hive: “The viewing of nearly all recordings takes place within 60 days, so there is minimal impact to customers.” Michelis didn’t provide more details on how Bell Canada arrived at this conclusion.

That last bit isn’t surprising considering just how many people are jumping into Bell support forums to express just how pissed off they are about this. And the flippant comments from the spokesperson don’t even bother to address the fact that Bell customers were told there would be one retention policy only to find out that it got 5/6th shorter now that they’ve signed up. There’s a term for that and it’s called a bait and switch.

And it doesn’t seem like Bell can even get implementing this right. While Bell has also made comments about this being a way to free up storage space, that certainly isn’t the case on the actual end user side.

Customers have turned to Bell Canada’s online support forum to share their discontent with the changes, with some saying that they don’t align with the services they expected to receive when signing up for Fibe TV. Thankfully, Bell Canada won’t be able to delete recordings stored on DVR hardware inside customers’ homes.

Other complaints are coming from users whose recordings are being deleted even when they haven’t come close to maxing out their cloud storage or if their recordings aren’t available on demand.

A user going by camisotro on Bell Canada’s online support forum called the announcement “absolutely ridiculous” and condemned what they perceived to be years of telecoms pushing back against users’ ability to record content.

To be clear, the cloud PVR costs money. $10/month, to be exact. And again, that subscription was sold with customers understanding that content would have a 1 year retention. How in the world this would not result in some kind of class action lawsuit on behalf of consumers is entirely beyond me.

Bell Canada competitors are already out with public comments committing to their own 1 year retention on cloud-based content recordings. I would imagine those competitors will have some new customers in very short order.

Here we go again. There seems to be a thing happening among a select few big name video game publishers that have decided for some reason that they want to go to war with their own modding communities. The reasons for doing so vary, but they all amount to wanting to strictly control the experience gamers have with their products. Which is absolutely silly. Mods only exist because people want them. And they want them because they enhance the gaming experience they have with these games, thereby making them more attractive for purchase and continued play.

But when you’ve declared a war like this, it gets real easy for it to turn into a total war type scenario, where no method of attack is left unused. So it seems is the case with Bandai Namco, which for some reason decided to issue a trademark threat to modding site Tekkenmods.com.

Programmer and TekkenMods.com administrator Dennis Stanistan revealed the site recently received an infringement notice from Bandai Namco. The email from Bandai Namco states that the website uses trademarked visuals and logos without prior approval. “By doing so,” it accuses, “you intentionally seek to attract Internet users to your website. This unauthorized use of Bandai/Namco’s intellectual property falsely suggests Bandai/Namco’s sponsorship or enforcement of your website.”

It’s a ridiculous claim to make for several reasons. At the very highest level, PC gamers are not going to somehow think that a third-party mod site has some affiliation with Bandai Namco just because its name, game name, or logos appear on it. If the company was going to make changes to its game, it would simply do so in an update to the game. The whole point of mod sites like this are to do things the game developers didn’t do with their games.

And while the site did remove the logos and material as demanded by Bandai Namco, Stanistan was also very clear that he didn’t believe any of this amounted to trademark infringement, in particular as the site goes out of its way to state it is not affiliated with the company.

As TekkenMods in its official response, the mod’s creator deleted it from the website. However, Stanistan denies doing anything illegal, writing, “Acknowledgement of your complaint is not an admission of any wrongdoing.”

The site administrator also pointed out that the page clearly states it is not affiliated with Bandai Namco. This, Stanistan explains, was specifically done to avoid confusion about whether TekkenMods carries any official endorsement. “Furthermore,” he writes, “the alleged ‘infringing’ elements are used in the context of fan-based content creation which aims to celebrate and promote the Tekken franchise rather than infringe upon or compete with it.”

For the love of all that is holy, I do not understand why it is so hard for some game publishers to grasp this concept. Mods are not a threat to their games. They are a free source of labor for making the games more attractive for purchase, for replayability, and for extending the longevity of the game. It’s all a boon, with little if any downside that I can find.

But for some, the war continues. I sometimes wonder if these companies even understand why they are fighting this war.

A couple of years back, Mike wrote about a lawsuit brought against Paramount Pictures over its Top Gun movies. There were several things that colluded to make this lawsuit a thing, as Mike laid out. First was the mess that is copyright termination rights and the second is movie studios’ habit for licensing factual articles for movie rights.

See, the original Top Gun movie, while being entirely fictional, was at least partially informed by a factual news piece written by Ehud Yonay in California. Yonay told the story of real world pilots with callsigns at an elite training facility. Paramount licensed the piece for rights for the movie. In all reality, it didn’t have to do this, for reasons we’ll get into in a moment, but it did. As Mike pointed out, studios tend to do this sort of thing as an insurance policy of sorts, to prevent annoying lawsuits that may or may not have any actual merit.

In the subsequent years, Ehud Yonay passed away. Shosh and Yuval Yonay, Ehud’s widow and son respectively, reclaimed the copyright for the article, 35 years having passed since the licensing deal. And because the surviving Yonays can’t claim there is any direct copying of Ehud’s article in the movie, because there isn’t, they instead claimed that both movies are “derivative works” in order to get around that. Derivative works are their own flavor of mess, since the very concept of derivation in creative expression can route around the idea/expression dichotomy and, well, here we get a suit that is so twisted into a copyright pretzel that you’ve got the surviving family of a journalist suing over two fictional movies after having reclaimed rights to a factual article neither of them had any hand in writing. Cool.

Well, not cool, according the court that ruled for Paramount in the case for the most obvious of reasons.

“To the extent Plaintiffs contend that the Works are similar because they depict or describe fighter pilots landing on an aircraft carrier, being shot down while flying, and carousing at a bar, those are unprotected facts, familiar stock scenes, or scènes à faire,” the judge wrote.

In a brief response, Paramount said it was happy with the ruling.

“We are pleased that the court recognized that plaintiffs’ claims were completely without merit,” a studio spokesperson said.

At the end of the day, if the court wasn’t going to by into the bizarre derivative argument, it’s the only logical way for the court to rule on this. There simply isn’t any actual copying from the factual article to the movies. Everything laid out in the suit amounts to attempting to sue over the “copying” of ideas, concepts, or other unprotectable elements. Again, the movie is filled with names, locations, plot points, and antagonists that are all completely absent from Ehud’s article. You know, because it’s fiction.

Now, the Yonays have already said they plan to appeal the ruling. They almost certainly shouldn’t. The ruling from the lower court is as plain as it is detailed.

“To the extent there are similarities between the characters in the Works, the characters in the Article are real people and are therefore not protected by copyright law,” he wrote.

The judge also noted the many differences between the movie and the article, including the plot, dialogue and setting, and ultimately concluded that the works are not substantially similar.

In fact, they’re not even really all that close. I would argue, actually, that the only lesson to be learned here is that studios should shy away from licensing the rights to factual journalism for fictional works entirely, if this is how those efforts are going to end anyway.

For years and years, Apple has done its best to prevent emulators from appearing in its App Store. Given Apple’s walled-garden approach, not to mention console manufacturers never-ending hatred for emulators generally, it wasn’t a huge shock that Apple went this route. Even when the occasional workaround has been discovered to allow people to get emulators onto their iPhones, Apple has been consistent about shutting those down.

For years, emulation enthusiasts have complained about this practice. After all, emulators themselves are perfectly legitimate and there are a ton of valid reasons for using them. Sure, sometimes emulators are used to infringe copyright on games never purchased by those playing them, but that is a subset of the total use of an otherwise valid tool.

Well, Apple recently released an update on its platform informing developers of changes to App Store policies, and it includes an interesting change.

When Apple posted its latest update to the App Store’s app review and submission policies for developers, it included language that appears to explicitly allow a new kind of app for emulating retro console games.

Apple has long forbidden apps that run code from an external source, but today’s announced changes now allow “software that is not embedded in the binary” in certain cases, with “retro game console emulator apps can offer to download games” specifically listed as one of those cases.

Now, Apple has long forbidden apps that allow software to be run that is not included in the binary while claiming its doing so for security reasons. After all, if Apple can lock down what gets to an iPhone to specifically the code and software it can review before it goes into the App Store, it can prevent calls to software and code from outside the walled garden, which could contain non-reviewed malicious content. But that was never really the whole point. It was also about control and one of the aspects of that control has been to disallow emulators to call out to ROMs outside of the program itself. In other words, an emulator that pitched itself as legit on its own, but which also offered the ability to go out and get infringing ROMs, was disallowed.

This change opens the door, but nobody expects it to be open beyond the barest of slivers.

It’s not completely clear from Apple’s wording, but our interpretation of Apple’s new rules is that it’s likely only the last of those examples will be possible; companies that own the intellectual property could launch emulator apps for downloading ROMs of their (and only their) games. So, for example, Sega could offer a Sega app that would allow users to download an ever-expanding library of Sega games, either as part of a subscription, for free, or as in-app purchases. Sega has offered its retro games on the iPhone before in emulation but with a standalone app for each game.

“You are responsible for all such software offered in your app, including ensuring that such software complies with these Guidelines and all applicable laws,” Apple writes. And it specifically says “retro game console emulator apps can offer to download games” in the list of exceptions to the rules against “software that is not embedded inside the binary”—but it doesn’t list any other method for retro game console emulator apps.

If that’s how this shakes out, it all still kind of sucks. Again, there are plenty of uses for console emulators, even for major consoles like older Nintendo systems and the like. Some companies offer ROMs up without issue. There are a ton of home-brew games out there that would be legit to download. Some games come from companies that no longer exist and published games for which the rights to them are entirely in limbo. The emulator is just a tool, not something that infringes in and of itself.

So do I expect game emulation to come roaring back to the iPhone? Nah, not really. But the door is no longer fully shut to emulators, so perhaps there is hope.

Back when Vladimir Putin launched his aggressive war on Ukraine, even before western government sanctions began rolling out, the video game industry started its own mini warfront on Russia. Companies began suspending sales in Russia entirely and otherwise disallowing Russian citizens to participate in global gaming culture. Groups like Itch.io began selling game bundles with proceeds going to groups that provide medical services to the people in Ukraine. And because of this and other sanctions, Russia voiced plans to essentially legalize copyright infringement on products from “unfriendly” countries.

Obviously when it comes to this war that has now spanned over two years, the gaming industry’s efforts are not exactly the most important aspect of the fight. Still, the whole point of a coordinated and multi-pronged response to all of this is to make life as uncomfortable as possible for the citizens of Russia in order to get them to pressure Putin to end the war. Or perhaps oust Putin entirely one way or another. And it sure seems like that pressure might be starting when it comes to gaming, as Putin has issued a hilarious edict to Russian tech companies to produce gaming consoles on par with PlayStation 5s and Xbox consoles by June. As in, June of this year.

Per a report from the Russian newspaper Kommersant, the order was handed down from the Kremlin to “consider the issue of organizing the production of stationary and portable game consoles and game consoles.” Kommersant’s sources tell the nationally distributed Russian paper that the VK Group, a major Russian tech company behind the similarly named social media service VK, will be largely responsible for the project. The production of consoles will be handled by the GS Group, which was previously known as General Satellite and is the single largest Russian developer of set-top boxes.

As part of the order from the Russian government on March 25, the VK and GS Groups will be responsible for producing both home and portable consoles for Russian consumers by June 15, 2024. The order has only grown taller. This move isn’t Russia’s first in the video game industry—the country tried to “penetrate” gaming communities last year, and considered creating its own game engine the year before that. But it does mark a remarkable shift since the majority of the games industry cut off relations with the country amidst its invasion of Ukraine in 2022. Russia’s government is now trying to effectively kick off its own games industry, likely to offset the financial sting of those sanctions.

Now, look, Putin is 71 and that makes him one of the “olds” and I know the olds sometimes have trouble understanding just what is involved in pulling off some of the technical marvels we have in modern times. But even he must realize that the idea that Russia is going to, from scratch mind you, develop a AAA console on par with current generation Sony and Microsoft products is simply not going to happen. The idea of seeing something ship out of these Russian tech companies in three months that is anything other than a slightly molding potato with a poorly drawn illustration of Microsoft’s Clippy on it is fantasy. Sony announced the PS5 in April of 2019, meaning development started well before that, and released it for purchase in November of 2020. That’s a year and a half from announcement to release, roughly six times the timeline that Putin is looking for. Good fucking luck.

Oh, and that’s not all. Putin’s order also demands that these companies make these consoles ship with an operating system and backend that makes them playable from the cloud. And here I thought Google was crazy with its promises for Stadia! If you’re worried that those in Russia that actually know how all of this works are taking any of this seriously, fear not.

Per the Kommersant, analysts are already saying that “there is no competence to produce their own PlayStation and Xbox consoles, and creating such a system from scratch will take up to ten years.”

Which leaves us two potential outcomes. Either Putin walks this back and sets a more reasonable expectation for all of this, or several Russian folks are going to become very familiar with the term defenestration.

But what isn’t going to happen is the appearance of a AAA Russian console in three months.

In all of the posts we have done on the topic of video game preservation, I have often made the point that it’s probably long past time that there be some sort of political action to address the real or potential disappearance of cultural output that is occurring. The way this works far too often is that a publisher releases a game that is either an entirely online game, or an offline game that requires backend server calls or connections to make it work. People by those games. Then, some time down the road, the publisher decides supporting the game is no longer profitable and shuts the servers down on its end, disappearing the purchased game either completely, or else limiting what was previously available. Those that bought or subscribed to the game are left with no options.

Well, one YouTube channel is attempting to generate some political action to combat all of this, using Ubisoft’s The Crew game as its muse for doing so.

Ross Scott, who runs Accursed Farms, posted a 31-minute video on the channel, which outlines the problem and how he believes drawing attention to The Crew’s April 1 shutdown could cause governments to enact greater consumer protections for people who purchase online games. As laid out in the video, consumer rights for these situations vary in different countries. France, however, has some pretty robust consumer laws, and Ubisoft is based there.

“This isn’t really about The Crew or even Ubisoft,” Scott says in the video. “It’s about trying to find a weak link in the industry so governments can examine this practice to stop publishers from destroying our games.”

You can watch the entire video for yourself below.

With The Crew, millions of copies of the game were played around the world. When Ubisoft delisted the game late last year, the game became unplayable. On top of that, because of copyright law, it would be illegal for fans to keep the game alive themselves by running their own servers, even assuming they had the source code necessary to do so. So fans of the game who still want to play it are stuck.

In addition to the videos, Scott has also spun up the Stop Killing Games website and campaign. There, Scott is attempting to do what many would say is impossible: get the gaming public to take collective action around the world. By promoting not just awareness of the culture-killing aspect of all of this, but also providing information and quick links as to how people can take political action tailored to their country’s laws, the idea is that the gaming community make enough noise so as to no longer let our representatives ignore the problem.

The Stop Killing Games’ end goal is that governments will implement legislation to ensure the following:

• Games sold must be left in a functional state
• Games sold must require no further connection to the publisher or affiliated parties to function
• The above also applies to games that have sold microtransactions to customers
• The above cannot be superseded by end user license agreements

I’d love to hear an argument from someone as to how any of this is unreasonable. It’s as good a method for combatting the “you don’t own what you’ve bought” trend in video games as I’ve come across. Essentially, publishers can’t architect games in such a way so as they can be ripped away from buyers when the publisher or developer is tired of supporting them and wants to move on to something else. The only thing I’d add, so as to not make all this too arduous for publishers, is that fans should be granted code access and rights to run their own servers in the event the publisher no longer wants to. Scott’s plan instead calls for online games to be architected so that they must be run on fan-servers.

Regardless of the route this ends up going, the point is that games, otherwise known as cultural output, cannot simply be yoinked out of the universe at the pleasure of the publisher.

“If we win, can you imagine how good it will feel in the future knowing all your games are safe and you only have to think about whether you like the game or not,” Scott says. “That’s my vision of gaming for the future. It’s a little different than the industry’s. And if we lose, we’ll at least get told straight to our faces that, in a democracy, you can never own video games that you pay for, no matter how many people want that to happen. I guess this will be a civics lesson.”

If game preservation is something you care about, go check out the video and website. Even if you don’t care about video games specifically, you might still consider advocating for cultural preservation via the site anyway. After all, there is nothing that says the antics of the gaming industry won’t be replicated to other forms of media in the future.

We’ve had a couple of posts about Ohio State University’s theories on trademark law over the past couple of years, with all of them centering on the school’s application, ultimately somehow granted by the USPTO, to trademark the word “the.” The whole thing was so absurd that even noted college football cheerleader Kirk Herbstreit thought the whole thing was dumb, but here we are. The point of this preamble is that the school doesn’t exactly have a stellar track record when it comes to being sane on matters of trademark law.

All of that brings us to the present, in which Ohio State is opposing the trademark for a vodka brand going by the brand name “VOHIO.”

Ohio State University is challenging a Gahanna distillery’s bid to trademark a line of Buckeyes-themed vodka products under the name “VOHIO” that the university says would dilute the Ohio State brand and confuse the public.

Ohio State said in a filing with the patent office that Noble Cut’s target market for the sale of the vodka is students, alumni, fans and supporters of the Buckeyes, in essence the same base for sales of Ohio State’s licensed goods. The vodka bottles are the “type of merchandise that consumers would reasonably suspect to be affiliated with Ohio State,” the university said.

I truly do not understand why the source article is characterizing it this way. As someone who follows college sports, I went and looked at the branding for the vodka and it sure didn’t cause me to think of OSU in any way shape or form. Here is the bottle’s branding, so you can see for yourself.

And here’s an example of an OSU football uniform.

I mean, they’re not entirely dissimilar, but the colors look plenty different to me. The striping pattern doesn’t call to mind OSU’s branding from what I can tell. And, frankly, the school has also stated this has more to do with chants at football games than trade dress anyway.

On social media, Noble Cut displays the “VOHIO” as “VoHio” in an apparent attempt to mimic the cadence of Ohio State fan chants, such as “OH-IO,” “O-HI-O” and “O-H-I-O,” the university said, “all in a manner that suggests that the vodka sold under the ‘VOHIO’ mark is an official vodka of Ohio State and/or Ohio State tailgating activities, which is patently false.”

Ohio State also said use of the letter “V” in “VOHIO” does not do enough to distinguish itself from Ohio State’s trademarks using the word “OHIO.”

And now we’re in the realm of the absurd. OSU does not make alcohol. The idea it has broad trademark rights to the name of a state in the union is obviously silly. For all of this to somehow get warped into the opposition of a trademark that references more the state itself than the school, with only some barely discernable possible references to the school doesn’t somehow make it the case that the public is actually going to be confused as to an association in all of this seems like pure pretzel logic.

But OSU is big and has a warchest to match, which is why this may end up going to a settlement.

The case is currently on hold. The most recent filing with the trademark office last week indicates that both sides are in discussions about a possible settlement.

I wouldn’t be shocked at all if the VOHIO folks caved on this under threat of litigation. And that’s too bad, in my view, because I don’t think there’s anything remotely like a valid trademark claim here.

I’m going to kick this post off by stipulating to a couple of facts. First, the primary subject of this post is YouTuber Andrew Callaghan. Callaghan has both something of a checkered past as a YouTuber, having had his most recent channel briefly taken down over claims of spreading COVID-19 misinformation, but in which he’s also produced some interesting content. Callaghan has also had allegations made against him in the past by several women as to inappropriate sexual advances and pressuring, with the YouTuber disputing many of those allegations alongside an apology for some of his behavior. He is, as they say, a complicated character.

My second stipulation is that I have not watched the documentary he produced that is also the subject of this post, which was a deep dive into residents of the Las Vegas Tunnels. That being said, the documentary originally received a fairly sizable viewership.

In recent months, he’s been working on a new documentary. The film is an hour and 37-minute journey into the Las Vegas Tunnels — where hundreds of unhoused people live underground. On March 28, Callaghan released the full film on YouTube. It rapidly gained more than a million views over the weekend. 

But suddenly, Callaghan noticed the video was gone. YouTube had issued him a copyright strike without any warning.

“There was no option, no prior warnings. Just like literally, one second there, the next second gone,” Callaghan told Passionfruit. 

The details here are going to be important, so we’ll need to see how some of this shakes out. But from the article, Callaghan used a 1 minute clip of FOX5 content that involved clips relevant to the overall documentary, which is much longer in length. The documentary is obviously a piece of journalistic content, though it is unclear at this point if Callaghan added any direct commentary pertaining to these clips as well as what percentage of the used clips is related to the overall FOX5 content. Those would be questions within the four factor test should this go to trial.

But from the outside looking in, this all certainly smells like fair use.

Fair use law is notoriously vague, often in journalists’ favor. Courts apply a four-part analysis in the Copyright Act to determine whether use is “fair.” The key questions consider whether a work is truly “transformative,” whether the amount of copyrighted material used was appropriate, whether the user had “good intent,” and whether there is significant economic harm to the copyright holder. 

Courts, however, usually deem documentaries fair use (even if creators monetize them) due to their highly edited and educational nature. And, regardless of the legal standing, FOX5 taking down a fellow journalist trying to educate viewers about a good cause seems a bit bizarre.

Bizarre indeed, considering these are clips of past broadcasts, so it’s difficult to understand what harm FOX5 would have suffered as a result of the use of those clips in the first place. If there is no real harm to FOX5, the channel could have simply left all of this alone without further consequence. Instead, it issued the copyright strike, which resulted in the takedown of the entire documentary at a critical time for the film.

For Callaghan, the consequences of the takedown were particularly brutal. He spent months on the documentary, which aimed to help the community in the tunnels and the Shine A Light nonprofit. He also says he spent over $20,000 for the film’s voiceovers in Spanish, German, Brazilian Portuguese, French and German. 

The sudden removal was also strange because Callaghan is a YouTube Partner. Creators receive advanced benefits from the program, including human support lines.

But in this case, YouTube presented him with fairly limited appeal options. Callaghan said he tried to contact his designated YouTube partner liaison. But the liaison told him he had to settle the dispute directly with the content owner, FOX5. According to YouTube’s process, FOX5 had 10 business days to respond.

The film is still unwatchable on YouTube as of the time of this writing. It is available on Callaghan’s Patreon page, however, so it’s not like FOX5 even fully disappeared the film.

Whether this is truly an instance of fair use content being taken down is a question that will have to wait for the appeal process to be worked through. Again, from the outside that’s the way it looks. But at a bare minimum, we can say that FOX5 appears to be behaving in an overly protective fashion to take down a fellow journalistic piece of content.