Copyrights, Trademarks, Patents, and branding irons

[Friday]

yeah but Thad I'm a freedom fighter underdog along with Monsanto and Apple and Microsoft fighting against the oppressive little guy who controls everything

[Thad]

You have been reading my Ken Penders coverage.

[Friday]

I read it before when it was new, and it was just as relevant now.

Same fanboy shit, different fanboy day.

[Thad]

From what I've seen, this is more of a "When did Captain America become political?" kind of week.

[Mongrel]

From what I've seen, this is more of a "When did Captain America become political?" kind of week.

I see that you too have been on Twitter this week.

[Thad]

DRM Strikes Again: Ubisoft Makes Its Own Game Unplayable By Shutting Down DRM Server

DRM is only one of the many reasons you shouldn't buy games from Ubisoft, but it's worth highlighting, again, that even by the standards of shitty DRM Ubisoft stands out in the crowd.

[Thad]

Here we go again: Marvel Suing to Keep Rights to ‘Avengers’ Characters From Copyright Termination

The complaints, which The Hollywood Reporter has obtained, come against the heirs of some late comic book geniuses including Stan Lee, Steve Ditko and Gene Colan. The suits seek declaratory relief that these blockbuster characters are ineligible for copyright termination as works made for hire. If Marvel loses, Disney would have to share ownership of characters worth billions.

In August, the administrator of Ditko’s estate filed a notice of termination on Spider-Man, which first appeared in comic book form in 1962. Under the termination provisions of copyright law, authors or their heirs can reclaim rights once granted to publishers after waiting a statutory set period of time. According to the termination notice, Marvel would have to give up Ditko’s rights to its iconic character in June 2023.

Marvel is facing other termination notices. For example, Larry Lieber (who worked at Marvel as a writer, too) filed termination notices over creations in May.

The heirs of the comic book creators (including Black Widow creator Don Rico) are being represented by Marc Toberoff, who once famously represented Superman creators Jerry Siegel and Joe Schuster in an unsuccessful termination attempt against DC.

[Cait]

What's the money on right now? Disney making sure this never goes to court, or Disney making sure this goes to court so hard nobody tries it again?

[Grath]

Lawyer who specializes in international copyright:

[zaratustra]

[sickos.jpg]

[Thad]

What's the money on right now? Disney making sure this never goes to court, or Disney making sure this goes to court so hard nobody tries it again?

Last time they fought it right up until the eve of it going to the Supreme Court and then settled.

I think it's pretty clear from that that they don't want it going to the Supreme Court, but they do want to make the process as onerous as possible for the heirs.

Lawyer who specializes in international copyright:

That sounds about right to me.

I wrote a lot about this back during Marvel v Kirby; IANAL and I may have gotten some things wrong but I got notes from some industry pros and corrected things they said needed correcting.

One wrinkle here: I think a lot of the lower-court verdicts in Marvel's favor last time largely came down to Stan Lee's testimony. Lee was still alive, Kirby wasn't; the court didn't really have any other choice but to accept Lee's version of events as the only living witness (even if his version of events included claiming it was his idea for Thor to be the son of Odin).

So, what's interesting about this: the article says that Larry Lieber has filed for termination but doesn't list him among the parties Marvel is suing. Now, it may be that they still intend to -- but his case is qualitatively different from the various heirs' cases, because he's, you know, alive. And his brother isn't.

So in some ways, it's a reversal of Marvel v Kirby -- instead of a situation where the only witness who was actually there in the room was backing Marvel's version of events, this time the only witness who was actually there in the room is the co-creator who's seeking termination.

I don't think it's quite the same, though. In Kirby's case, there are multiple examples where he had an idea on his own and then pitched it to Marvel. I don't think Lieber worked that way. I think that he was generally the guy Lee would go to for stuff he didn't have time for -- like, Kirby and Lee have a rough idea for Iron Man or Thor or Ant-Man or whoever, but they're already working on a dozen other books so Lee gives this one to Heck and Lieber to finish.

And if that's really how it worked, then I think Marvel's "instance and expense" case is probably reasonably strong. (That's the test that courts use to determine whether pre-1978 work was for-hire.) But again, I wouldn't discount the leverage Lieber has as the only living witness in his case.

Kurt Busiek (who's a good guy to read if you're keeping track of this stuff) notes that, while we have a conservative, business-friendly Supreme Court, that's no guarantee they'd side with Marvel if it got that far -- because there are a lot of businesses who don't want the same result Marvel does here. The comics industry's "everything is work-for-hire by default" approach is not actually how things work in other industries. A Supreme Court ruling in Marvel's favor could really fuck things up for the traditional publishing industry, the music industry, and any number of others -- and some companies with deep pockets were being very vocal about that when SCOTUS was considering whether to take on Marvel v Kirby. There were a lot of amicus briefs from big businesses that were taking the Kirbys' side, and that's part of why Disney balked and settled at the eleventh hour.

People can guess how the Supreme Court might rule on this, but nobody really knows. And for that reason, neither side really wants a Supreme Court decision.

[Thad]

US Copyright Office says you can fix a game console (but only the optical drive)

Feels about the same as every three years: well, this is good, but it's not remotely enough.

[Mongrel]

US Copyright Office says you can fix a game console (but only the optical drive)

Feels about the same as every three years: well, this is good, but it's not remotely enough.

Of course not Thad, you're still not allowed to fix the remote.

[Thad]

Internet Archive Would Like To Know What The Association Of American Publishers Is Hiding

Last year when a bunch of the biggest publishing houses sued the Internet Archive, in the midst of a pandemic, over their digital library program, I was a bit surprised that the announcement about the lawsuit came not from any of the publishers themselves directly, but rather from the Association of American Publishers (AAP), which is officially not a party in the lawsuit. That alone felt a bit... sketchy.

And, now it may be an issue in the lawsuit itself. Last week, the Internet Archive asked the judge for a hearing because the AAP is attempting to withhold various responsive documents on the discovery requests that were made to the publishers themselves regarding their communications with the AAP, and a separate subpoena served on the AAP. And it appears the AAP really doesn't want that stuff to get into the hands of the Internet Archive's legal team.

This dispute concerns documents (i) responsive to the Internet Archive’s requests for production served on Plaintiffs and (ii) responsive to the Internet Archive’s subpoena served on the AAP. These withheld documents are critical to the Internet Archive’s fair use defense—specifically the fourth factor, market harm. The varying views of publishers regarding whether they objected to the Internet Archive’s activities, whether they regarded themselves as having been harmed by those activities, and whether that harm was of a large or of a small magnitude are key pieces of evidence as to whether Internet Archive’s nonprofit library lending causes any substantial market harm.

There's also a hint in the letter suggesting that the Internet Archive is suggesting that the only real "harm" caused by its Open Library was that it made it more difficult for the big publishers to collude (as they did with Apple regarding ebook prices) to jack up the prices on ebooks sold (but not really sold) to libraries.

(links not included in copy-paste)

[Thad]

Faulty DRM breaks dozens of games on Intel’s Alder Lake CPUs

PC Mag's Chris Stobing explained that the issue arises from the DRM middleware treating the two different types of cores as two distinct systems. "Once it detects that some portion of the load has been split between the P- and E-cores, it sees the new cores as a new license holder (a separate system) and force-quits the game to prevent what it believes is two PCs trying to play one game on the same key,” he said.

Pirates, as always, are unaffected.

[Friday]

Pirates, as always, are unaffected.

Man, you've been going on about DRM (rightfully so) for so long that when I read this it actually hit me with a wave of real nostalgia.

[Mongrel]

I actually forget if that was originally a Thad running gag or a Brent running gag.

[Brantly B.]

Let's just say I'm unaffected.

[Thad]

And that's not even the only instance of Denuvo shitting the bed this week.

A DRM Error Made Major Single-Player PC Games Unplayable

This one was because they let one of their domains expire.

[Büge]

pirates, etc. as, etc. always, etc.