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Stories filed under: "japan"

Operators Of Another ‘Spoiler Website’ Arrested In Japan

from the spoilers-aren't-a-crime dept

Here we go again. Late last year we talked about how revisions Japan made to copyright law within the country, predominantly as a gift to the manga and anime industries, was resulting in some absurd arrests. Specifically, the law was amended to pull copyright issues from the civil realm and into a criminal offense, which is combined with copyright law in Japan being overly protective to begin with. That’s how you get examples such as I linked to above, in which the operators of three sites that are considered “spoiler sites” — meaning that they include very little in the way of directly copied materials, but instead have content such as plot and character summaries. In America, such content is not copyright infringement. In Japan, however, it seems it is, which is very silly.

But it keeps happening. Six individuals operating another spoiler site in Japan have been referred to prosecutors for copyright infringement this past week, though there seems to be some accusation that copyrighted still images of films were on the site along with the spoilers.

A company operating a website that provided detailed spoilers and images of films has been referred to the Sendai District Public Prosecutors Office on suspicion of violating the Copyright Act. Five men and women, including the company manager, were also referred; the Miyagi Prefectural Police Headquarters and the Minamisanriku Police Station handled the investigation. Content Overseas Distribution Association (CODA), a major Japanese anti-piracy organization, reports that there are “very few precedents for a corporation being referred to the prosecutor’s office on suspicion of violating the Copyright Act, making this an extremely rare case.“

The website posted detailed content of films, such as Godzilla Minus One and four other movies copyrighted by Toho, Shin Kamen Rider and two others by Toei, Kubi and one other by KADOKAWA, and Shin Ultraman by Tsuburaya Productions. The site reportedly listed over 8,000 films, describing the names of characters, lines, actions, and scenes.

Now the details of what the “images” are that are referenced actually consist of. If they are still images of copyrighted films or, say, promotional posters or title cards, I suppose that could be copyright infringement in the barest sense of the term. While potentially technically infringing, it would be monumentally silly to turn that sort of thing into a crime. Who would be the victim of that crime? Is CODA and the content creators really suggesting that represents some danger to them?

The answer is generally no. CODA’s commentary on this whole thing makes it clear that it’s the spoiler aspect of the sites that it’s concerned about, not any images.

CODA described these types of sites as malicious, as they allow “visitors to understand the full story of the movie, reducing their willingness to pay a fair price for the content, and may even lead to people not seeing the official movie.” CODA adds that these summaries go beyond the scope of legitimate quotations.

In no sane world should spoilers for content be considered copyright infringement. That should be reserved typically for the direct copying of protected content. Or, at the very least, to content that serves as a replacement for the copyrighted content. While CODA claims that’s the case here, anyone with a couple of brain cells to rub together would have to be very skeptical of that claim.

I knew all about the twist ending in The Sixth Sense back in the day. I still went and saw the movie? Why? Because I heard from the same people that “spoiled” the twist for me that it was also an excellent movie. In fact, there is at least some chance that I went and saw the film because of the conversation that spoiled the twist. Why is CODA so sure that same isn’t occurring with sites like these?

But the basic point here is that turning this sort of thing into a criminal offense is plainly silly.

Filed Under: coda, copyright, criminal copyright, japan, spoilers

Otherwise Objectionable: How 230 Let US Internet Companies Win

from the a-world-without-230 dept

While politicians from both parties race to dismantle Section 230, we’re missing a crucial part of the story: how this uniquely American law helped US internet companies succeed globally. In the latest episode of Otherwise Objectionable, I explore with legal scholar Anupam Chander what might seem paradoxical — how a domestic liability shield became America’s most successful tech export without a single international treaty.

We discuss how other places regulate the internet, including Europe, Japan, Australia, South Korea, Brazil and more. And how each of their approaches created real burdens — the exact kinds of burdens that Chris Cox and Ron Wyden were trying to avoid while drafting Section 230.

What’s particularly striking is how Section 230 functioned as a kind of incubator. The early freedom from crushing legal uncertainty allowed companies to build services compelling enough that international users demanded access to them, creating pressure on foreign regulators to accommodate these platforms rather than block them entirely. This explains what seems like a contradiction: how platforms built under Section 230’s protection can operate in jurisdictions with much stricter liability regimes. They succeeded not despite Section 230, but because of the head start it provided, reinforcing the idea that Section 230’s biggest value is in protecting smaller, newer platforms.

But this era of American digital success may be fading. As regulations globally become increasingly stringent (with the EU’s Digital Services Act, Australia’s Online Safety Act, and dozens of similar regulatory regimes), we’re witnessing the early stages of internet fragmentation. We discuss how platforms will need to make difficult decisions about which markets to exit when compliance becomes untenable.

The irony shouldn’t be lost on American legislators rushing to “reform” Section 230: they’re dismantling the very legal framework that made American digital innovation possible, just as the rest of the world is recognizing — through increasingly desperate regulatory measures — how effective it was.

Filed Under: anupam chander, australia, brazil, eu, france, germany, intermediary liability, japan, otherwise objectionable, section 230, south korea

Bad Sign: Pocketpair Updates ‘Palworld’ By Nixxing Pal Spheres

from the rolling-over dept

We’re still waiting for the lawsuit in Japan between Nintendo, The Pokémon Co., and Pocketpair to get rolling, but that doesn’t keep the dispute out of the news. The patent lawsuit, itself a surprise as everyone thought it would be a copyright gambit that Nintendo would try, centers around several patents that all relate to familiar video game gameplay mechanics. That mostly consists of the transition process between riding around or dismounting characters in an open world (absurd that this is a patent) and throwing an object to catch a creature (also absurd that this is a patent). As I detailed in our last post on the subject, I would argue, and would want Pocketpair to argue, that there are all kinds of prior art for these mechanics. And while I’m no expert in Japanese patent law, non-inventive things like this generally don’t deserve patents.

While Nintendo and The Pokémon Co. are obviously large entities with impressive legal war chests to boot, I had hoped that the success of Palworld would be such that Pocketpair had the resources to fight this out in Japanese courts. And while there’s still a chance that might happen, it’s a bit worrying to learn that the company updated the game recently, with that update removing the Pal Sphere mechanic that Nintendo is suing over.

Palworld version 0.3.11 featured changes to Pal Spheres, the palm-sized, spherical devices players use to capture and summon their Pals. The changes were first spotted by Niche Gamer, but do appear to be reflected in Palworld’s patch notes via Steam: “Changed the behaviour of summoning player-owned Pals so that they are always summoned near the player.”

In practice, what that means is that when a player summons a Pal, they no longer do so by throwing the Pal Sphere wherever they want them to appear. Instead, the Pal will simply pop up directly next to the player, and can then be commanded to attack other Pals, gather resources, et cetera. While it doesn’t fundamentally change the way the game works, it does have a palpable effect on one of its core mechanics, a change that has some players concerned.

As to why this change to a core mechanic was made, nobody at the publisher has offered any reasoning, leaving everyone instead to speculate. But come on. I can’t think of a single reason, even a hair-brained one, to make this change that doesn’t redound back to Pocketpair is looking to roll over and show its belly on the lawsuit, but I sure don’t think it helps its case if it plan to fight this out in court.

And fight it out it should, I believe. The idea that we are going to set a precedent for Nintendo and The Pokémon Co. to wield these patents for, again, fairly banal game mechanics is not good for the larger industry in Japan.

Look, we all knew that something like this was bound to happen eventually. Palworld was always playing with fire, and Nintendo is notoriously litigious. But regardless of where you land on the accusations levied against Palworld, it’s easy to see how software patent infringement claims could be taken too far. Most infamously, Namco once held a patent on loading screen mini-games that prevented almost any kind of interactivity during these periods of downtime. That patent expired in 2015, but even now, loading screen mini-games still haven’t made the resurgence they deserve.

Something similar could happen as a result of this lawsuit. Beginning combat by aiming and firing with a targeting reticle is all too common a mechanic. To see that disappear entirely would be a huge blow to open-world games with optional combat. There may be more specifics to Nintendo’s patent, and there may be an entirely different reason for the update, but at this point, it’s impossible to say exactly what’s going on behind the scenes. Still, if the rumors are true, this lawsuit could be harmful not only to Palworld specifically, but to the video game industry in general.

So, back to the waiting game, I suppose. We’ll have to see if this is in fact an indication that Pocketpair doesn’t want to fight this in court, or if this portends something else.

Filed Under: japan, palworld, patents, pokemon
Companies: nintendo, pocketpair, pokemon company

Nintendo, Palworld, A GTA 5 Mod, And An Injunction For The Japanese Market

from the uh-oh dept

We’re waiting for the lawsuit in Japan between Nintendo, The Pokémon Co., and Pocketpair, the developers of the hit game Palworld to really get going. In the meantime, the public commentary is filling the information void, including commentary from IP experts. The suit revolves around a series of patents the plaintiffs hold that cover a variety of gameplay elements. I very much question whether those gameplay elements should ever have been patentable to begin with, with the two main elements being the process for throwing a virtual object at a creature to capture it and the “invention” of riding a creature in an open world and the transition between riding them and not riding them. The patents covering these mechanics mostly come from several divisional patents and their parent patent, which was registered in late 2021.

For all of this, the plaintiffs are seeking $66,000 (yes, that’s the correct number), while also seeking an injunction prohibiting the sale of Palworld in Japan. That latter request, missed by me in my last post on this subject, is by far the more important aspect of the lawsuit. The monetary request is a rounding error for such a successful game, but shutting down sales in even just this one country would be far more devastating.

Again, should any of these patents have been granted to begin with? I certainly don’t think so. And for a variety of reasons. I very much question whether any of these gameplay mechanics are novel enough to warrant a patent to start with. Transitioning between riding creatures and not in an open world game? That’s been going on for a long, long time. Hell, I was doing something like this in 1997 when I was hopping on and off chocobos in Final Fantasy 7.

Which brings us to the subject of prior art. The other game mechanic in question here, throwing an object to capture a creature, has arguably been done prior to this 2021 parent patent’s registration as well. I mentioned in a previous post that the Ghostbusters game that came out in 2009 did this essentially the same way, swapping in capture devices and ghosts for pokeballs and pokemon.

But one IP expert in Japan is highlighting another potential example of prior art from a very ironic and unlikely source: a GTA V modder.

Ryo Arashida, representative patent attorney from the Japan-based Patent Attorney Corporation Siarasia is quoted by the Nikkei Business Online Edition as saying that while the outcome of the lawsuit is unclear, there’s a certain game mod out there that could work in Palworld’s favor.

The mod in question is a fan-made one, designed to be a crossover between Pokémon and Rockstar Games’s Grand Theft Auto V (GTA5). Arashida does not specify the exact mod, but mentions that it was released publicly around 2016 and includes the mechanic of throwing Poke Ball-like objects at characters on the game field to capture them. Given the description, it is likely that he is referring to this elaborate mod inspired by Niantic’s Pokémon GO from August 2016.

According to Arashida, the Pokémon capturing sequence used in this mod is similar to the one described in one of the divisional patents (Patent No. 7545191) Nintendo is suing Palworld over. Moreover, the parent patent that this divisional patent belongs to was registered in December 2021, meaning the GTA5 mod came out several years earlier. Arashida believes that “there is a possibility that the GTA5 Pokémon mod will be recognized as a precedent by the court.” If this were to happen, one of the patents Nintendo and The Pokémon Company are using in litigation against Pocketpair would be deemed invalid.

Now, I won’t claim to be an expert in Japanese patent law, but Arashida does make that claim. It would be quite interesting if a mod for a third-party game, which itself was built on the IP of a plaintiff, could also be used to both defend another third-party from a patent infringement claim and invalidate that patent entirely. The irony there would be sweet enough to warrant a trip to the dentist, methinks.

But all of that intersecting may not really matter when it comes to the validity of a patent. Either Nintendo and The Pokémon Co. actually invented the mechanics in their patents… or they didn’t. In the United States, at least, the use of an invention can serve as prior art for the purposes of patent law.

Whether the same is true in Japan will be seen as this trial progresses.

Filed Under: gta v, japan, palworld, patents, prior art
Companies: nintendo, pocketpair, pokemon company

Japan Arrests Operators Of Three Sites For ‘Anime Spoilers’ Under Copyright Law

from the spoiler-alert dept

Here we go again. We’ve been discussing the iterative changes in Japanese copyright law for some time now. Those changes have been largely targeted rather than sweeping, though those targeted changes are arguably extreme in nature. First and foremost was moving copyright infringement largely out of the realm of civil law and into a criminal offense. While that is bad enough on its own, the Japanese government also demonstrated plainly that at least part of the impetus for these changes to copyright law were designed specifically to bend the knee to the country’s manga and anime industry. Those changes were especially worrisome, given they went beyond criminalizing direct infringement to also make it illegal to “infringe” in all kinds of indirect ways, such as sites that merely link to potentially infringing content, or individuals or sites that share “spoilers” for anime and manga content. That last bit is what led to one man being sentenced to 2 years in prison for engaging in “let’s play” and spoiler content in uploads to YouTube.

That wasn’t some kind of one-off, it appears. News out of Japan is that the individual behind 3 websites that served up spoiler content for animes and mangas has been arrested. Note the careful wording regarding the infringing content in the description.

As confirmed in the press release, the OVERLORD content uploaded included transcriptions of “detailed content of the entire story” and characters, dialogue, and scene developments while reaping the advertising revenue. Thanks to the cooperation of Miyagi Prefectural Police and Tome Police Station, these men were arrested after confirming they conspired, despite the violation of copyright law, to generate a profit. All in the interest of protecting the dissemination of culture, this signals how serious this offense is according to the Copyright Act and how effectively CODA coordinated these measures.

Elsewhere in the post are some nods to content that is more directly infringing of copyright. But it’s all vaguely worded for the most part. “The whole stories of these properties posted by the concerned website,” is an example. Does that mean it was a direct copy of the script that was posted? Or just a summary, as appeared elsewhere on the site? And then there’s this line:

While digitally edited to obscure the content, they showed heavily copyrighted material, with their posted example bearing the Godzilla Minus One title card.

If the only direct copying of content was the title card, and not the actual script or other content created directly by the producers of this anime and manga content, then that is a very different thing from posting actual creative content about the show or episodes to the site.

And this is exactly what you would expect from a vaguely worded copyright law designed to give broad and sweeping enforcement powers in order to act as government protection for a specific industry. You get vaguely worded reports about arrests made under that law, with a lack of specificity as to what the actual infringing content is or was.

The problem with sites that extract text from movies and other content is that they reduce people’s desire to pay a fair price for content, which can lead to people not seeing the official full-length movies, causing great damage to rights holders. In addition, the act of infringing on content that creators have spent time, effort, and money to create and unfairly obtaining advertising revenue is extremely malicious and should never be tolerated.

-CODA

Except we’ve seen the opposite to be true. We’ve seen directly, with books for instance, that spoiled endings don’t actually decrease the interest in the books that were “spoiled”. In fact, in most of the posts we’ve had discussing content-producers freaking out over spoilers, you will notice that they have tended to come from extremely successful franchises and content.

The spoiler thing is entirely overwrought, in other words. And while that’s certainly true globally, what Japan is doing in this space is the overreaction of the overreactions.

Filed Under: anime, copyright, criminal, japan, spoilers

Speculation: Patent At Heart Of ‘Palworld’ Suit Could Be For Capturing Characters With A Ball

from the patently-absurd dept

As we just talked about the joint lawsuit filed in Japan by Nintendo and The Pokémon Co. against Pocketpair, the company behind the hit game Palworld, we still don’t have all the details. But one of the strange things about the suit is that is not a copyright or trademark suit, which is what everyone expected as soon as the game launched. Instead, this is supposedly a patent infringement suit, with the plaintiffs claiming that Palworld infringes on several of their patents. This led everyone from the folks at Pocketpair itself to the public to ask the obvious question: what patents?

Nintendo and The Pokémon Co. have yet to provide this detail, so we’re in the speculative stage at the moment. That being said, if this really is a patent infringement suit, some commentators out there believe they have found the likely culprits, which are several divisional patents recently filed for with the USPTO.

Kiyoshi Kurihara, a Japanese patent attorney and consultant on intellectual property spoke to Yahoo Japan on the lawsuit (translated by Automaton), and pointed to a “killer patent” that revolves around the mechanic of catching Pokémon itself.

“It seems like it would be hard to avoid if you want to make a Pokémon-like game, and it’s easy to infringe if you’re not careful,” Kurihara is quoted as saying.

The way a divisional patent works is to isolate specific aspects within a parent patent. This tends to happen when a single parent patent contains multiple protected elements, then divided out in the divisional patents. The patent that Kurihara and many others are pointing to in this case is Japanese Patent No. 7545191, which essentially covers the game mechanic of capturing a character with a “capture item”, in this case a Poké Ball.

Aiming a capture item (Poké Ball) at a character placed on the field (Pokémon), releasing the capture item in a direction determined by player input, judgment of whether capturing is successful or not upon contact between the capture item and Pokémon, and changing of the Pokémon’s status to “owned by the player” when capturing is successful. In addition, the patent also covers the mechanic of having capture probability displayed to the player, regardless of whether it uses colors, graphics or numbers.

While the divisional patents were just filed for weeks ago, likely in preparation for this lawsuit, the parent patent has been held since 2021. Because of that, it would still be valid to use against Pocketpair.

Although you have to wonder just how valid this patent is, not to mention why the plaintiffs haven’t wielded it against others. Is throwing a ball to capture a character really patent worthy? Is it really a mechanic invented by Nintendo and The Pokémon Co.? Hell, the Ghostbusters video game came out in 2009 and, as in the movies, involves a capture device you have to toss at ghosts and then guide them into it. That was well before the 2021 patent was granted.

Kurihara hinted at some of this in his comments above. A patent like this would preclude anyone from making a game that is inspired by Pokémon games. It would also be very easy to infringe upon unintentionally, given its real or potential broad use in the gaming industry.

And regardless of how this lawsuit shakes out, this sure looks like Nintendo and The Pokémon Co. scratching and clawing for any excuse to sue the competition. Maybe it would be better to just compete instead.

Filed Under: japan, palworld, patents, poke ball, pokemon, prior art, throwing a ball
Companies: nintendo, pocketpair, pokemon company

Nintendo, Pokémon Co. Sue Pocketpair Over ‘Palworld’ For… Patent Infringement?

from the a-patent-for-what-exactly? dept

Well, it took awhile, but we finally got here. Earlier this year, we discussed the game Palworld shortly after its release. It made our pages because the game is clearly partially inspired by the Pokémon series of video games, with some very stark differences. Similarities aside, the characters in the game are certainly different than those in Pokémon games, coupled with the use of firearms in the game along with other game mechanics that made it demonstrably different than any other game. As we highlighted at the time, this made Palworld something of an example of how the idea/expression dichotomy works and we warned that, while Nintendo or The Pokémon Co. might eventually pursue legal action over the game, a copyright suit ought to have a hard time surviving a defense using that dichotomy.

Which is why, while I wasn’t terribly surprised to learn that Nintendo and The Pokémon Co. have in fact sued Pocketpair over its Palworld game, I sure wasn’t expecting to learn that it was doing so over patent infringement.

Nintendo and The Pokémon Company announced they have filed a patent-infringement lawsuit against Pocketpair, the makers of the heavily Pokémon-inspired Palworld. The Tokyo District Court lawsuit seeks an injunction and damages “on the grounds that Palworld infringes multiple patent rights,” according to the announcement.

Beyond mere copyright concerns, though, Nintendo’s lawsuit announcement specifically alleges patent infringement on the part of Palworld (though this difference could come down to vagaries of translation from the original Japanese). A lawsuit over patents would seemingly require some unique game mechanic or feature that has been specifically granted stronger protections by the patent office. While the Pokémon Company does hold a number of (US) patents, most of them seem to deal with various server communications methods or the sleep monitoring capabilities of Pokémon Sleep.

Adding to the mystery in all of this is that nobody but the plaintiffs seems to have any idea what these patents that were infringed upon could be. I tend to agree that perhaps there’s a translation issue at work here and this really is instead a copyright and/or trademark infringement suit, but we’ll have to wait for more to come out to see.

If it is patents, I’ll be surprised. I’ll be even more surprised if there is any validity to such a patent infringement claim. That’s just not typically how these things in the video game industry work.

But if it really is a trademark and/or copyright claim, it should fail and fail hard… if this suit were brought in the United States. In Japan, however, it’s more complicated. Japanese copyright law does not have an explicit idea/expression dichotomy in the way US copyright law has, but the courts there do sometimes give a nod to and use it in a similar way.

But any sane copyright law would allow for games to be inspired by, but not replicas of, an original work. The whole point of copyright generally is not to allow any one entity own the concepts that go into a video game, but instead the specific expression of the same. And, for what it’s worth, Pocketpair too appears to be confused as to what this is all about.

“We have received notice of this lawsuit and will begin the appropriate legal proceedings and investigations into the claims of patent infringement,” Pocketpair says in a statement. “At this moment, we are unaware of the specific patents we are accused of infringing upon, and we have not been notified of such details.”

And so now we wait to see what the actual details here are. Frankly, sans some translation issue, none of this makes much sense to me. And while Nintendo and The Pokémon Co. certainly have shown themselves to be willing to stretch IP laws to be the bully generally, this seems to go beyond the norm.

Filed Under: copyright, idea expression dichotomy, japan, palworld, patents, pokemon, satire, trademark, video games
Companies: nintendo, pocketpair, pokemon company

Streamer In Japan Gets 2 Years Jail Time For Uploading Let’s Plays, Anime Spoilers

from the bonkers dept

Long time Techdirt readers may recall the iterative changes that Japanese copyright laws have undergone over the course of the last several years. While they aren’t the only changes to have occurred, the topline summary was to turn copyright infringement from a predominantly civil law issue into a criminal one, particularly in cases that prosecutors can identify as not falling under the following provision in the Japanese constitution:

An act unavoidably performed to avert a present danger to the life, body, liberty or property of oneself or any other person is not punishable only when the harm produced by such act does not exceed the harm to be averted.

In other words, if you’re not avoiding more harm than you’re causing by committing copyright infringement, you have the potential to face years in prison if convicted, along with fines. All the more so, apparently, if you’re infringing on the manga or anime industry’s content.

And now these changes to the laws are having the real world effect of putting people in jail for the crime of the kind of copyright infringement that might not even lead to a conviction here in America. One man was just sentenced to 2 years in prison for uploading and monetizing some YouTube videos that were let’s plays and summaries of animes.

A Japanese court has convicted a man of violating copyright law after he uploaded gameplay and anime videos without publisher permission. Reported by Japanese paper Asahi Shimbun, the 53-year-old man, Shinobu Yoshida, was sentenced to two years in prison and assessed a 1 million yen fine (or about $6,700 USD.)

Yoshida was arrested in May of this year after uploading gameplay videos of the visual novel Steins;Gate: My Darling’s Embrace back in 2019. According to a press release from the Content Overseas Distribution Association (CODA), a Japanese anti-piracy trade group, the complaint apparently stemmed from the fact that Yoshida monetized the videos, which violated a Japanese law that prohibits making money off copyrighted material. Yoshida also uploaded videos summarizing episodes of the Spy × Family and Steins;Gate anime shows.

The differences between American copyright laws and Japanese laws are bonkers. As I stated in the opening, there is a very real chance that uploading let’s plays and anime summaries, even if those summaries used some footage from the anime, would fall under fair use protections. Less so with let’s plays, probably, but let’s plays are also generally permitted by a large portion of the video game industry, seeing them as doing more good than harm to those games in terms of interest in them and sales.

In the case of this man and what he uploaded, the main impetus for wanting him jailed appears mostly to be, spoiler alert, spoilers.

CODA characterized the complaint as “malicious cases of posting videos containing content and endings (spoilers) without permission from the rights holders, […] and unfairly gaining advertising revenue through copyright infringement.”

Asahi Shimbun reported that the prosecution stated Yoshida’s actions were, “a malicious act that tramples on the effort of content production.” They argued that because he uploaded videos that condensed and spoiled anime episodes and videos of gameplay from a visual novel — a style of game that focuses on reading to experience the story rather than through gameplay — consumers would be less incentivized to spend money on either. According to Shimbun, this is the first time such a conviction has occurred in Japan.

Spoilers got a man 2 years of jail time. Just let that sink in. And, yes, the source article does note that Yoshida acknowledged to the court that he knew his actions were violating the law when he did them… but so what? That doesn’t in any way change the notion that criminalizing copyright infringement in this way is absolutely absurd. And if the monetization was the key issue here, well, YouTube does provide a way for rightsholders to demonetize videos like these and even yoink the monetization for themselves.

All of that would be better than a man in his fifties rotting in jail for two years over some anime spoilers.

Filed Under: anime, copyright, criminal copyright, japan, let's play, shinobu yoshida, spoilers, steins;gate

Japanese Media Spots The Trick After Latest In-N-Out Trademark Tourism Popup

from the eureka! dept

Finally! We’ve been covering famed burger chain In-N-Out’s longstanding bullshit tactic for retaining trademark rights all over the world by standing up popup locations briefly once every couple of years just to satisfy the requirements to use the mark in commerce. What is far too common in the coverage about lawsuits or threats of suits that the chain has lobbed at international businesses it feels are infringing on those mostly unused trademarks is any recognition in the press that this is pure trademark tourism. In fact, in many cases, the press coverage will include speculation about whether all of this means that In-N-Out is finally going international.

But In-N-Out’s latest international popup was so absurdly brief in its appearance that the Japanese press appears to have caught the plot.

On June 7, Californian burgers briefly interrupted the Tokyo workday. The culty American chain In-N-Out landed in Ebisu for a pop-up that lasted four hours. A reported 1,000 people turned up for the limited menu of just three items. And as quickly as it came, it went, leaving a wake of people on social media distraught that they hadn’t gotten the memo in time.

Yup, 3 menu items were on offer over the course of four hours to serve roughly a thousand patrons. I’ll give In-N-Out this much credit: it’s not even trying to pretend that this is about doing any real business in Japan. Separately, while the company declined to comment on whether the popup was designed purely to retain several trademarks the company has in Japan, that didn’t stop The Japan Times from filling in the blanks for its readers.

In 2017, trademark lawyer Chris Maher, then working for legal firm King & Wood Mallesons, wrote about the company, noting that in Australia, trademarks can be challenged and revoked if the registrants don’t show activity in the country for three years. He argued that In-N-Out’s pop-up tactic would qualify as an activity that would let it protect its trademark, but that it would have to keep coming back every few years — which is exactly what it has done.

Maher points out in an email that the three-item menu served in Ebisu directly reflects the company’s trademark portfolio. Fries aren’t registered, and fries weren’t served; neither were three- or four-patty burgers, or grilled cheese.

So, no, In-N-Out is not expanding to Japan. Or Australia. Or Canada. Or South Korea. Or, hell, the East Coast of the United States. It will visit those places now and then purely to retain its trademarks, like that one family member who needs to come visit for a week every couple of years to get back on their feet after losing their job yet again, but that’s about it.

Filed Under: japan, popup, trademark
Companies: in-n-out

Chinese Authorities Demand Global Censorship Of Protest Anthem ‘Glory To Hong Kong’

from the they-never-learn dept

It’s hardly a secret that the Chinese government is obsessed with controlling everything that its citizens see or do online — Techdirt has written dozens of stories on the topic over the years. But control within China’s borders isn’t enough, it seems: the authorities there now want the ability to censor material globally. The latest move concerns ‘Glory To Hong Kong’, which Wikipedia describes as:

a protest song that was composed and written by a musician under the pseudonym “Thomas dgx yhl”, with the contribution of a group of Hongkonger netizens from the online forum LIHKG during the 2019–2020 Hong Kong protests. It was initially written in Cantonese and was eventually developed into various language versions starting with English.

It became the unofficial anthem of the pro-democracy protests, and was considered powerful enough to warrant an explicit ban in Hong Kong’s extreme National Security Law, passed in 2020. Now the Chinese authorities, through their proxies in the Hong Kong government, are seeking to censor the song from online services, reported here by the Guardian:

Variations of the song distributed by DGX Music, the team of creators who own the rights to the title, were no longer available on Spotify, Apple’s iTunes, Facebook and KKBOX worldwide on Wednesday, though a rendition performed by a Taiwanese band still remained. Several music videos were also accessible on YouTube on Thursday.

In a social media post on Wednesday, DGX Music said it was handling “technical issues unrelated to the streaming platforms” and apologised for the “temporary impact”.

Those “technical issues” are in fact legal ones. Article 19 explains:

On 6 June, the Hong Kong government sought a court order banning the ‘broadcasting, performing, printing, publishing, selling, offering for sale, distributing, disseminating, displaying or reproducing in any way’ the protest anthem which the government claims constitutes secession. The injunction would block, and potentially criminalise, all internet intermediaries, from the streaming media platforms [Apple’s iTunes, Spotify, Facebook and Instagram’s Reels] to YouTube and Google, from providing access to the song for Hong Kong internet users.

Two weeks later, 24 human rights and digital rights groups wrote an open letter (pdf) to the Internet companies affected, asking them to oppose the injunction. They point out that this is the latest move to extend China’s online control and censorship around the world:

We note with heightened concern that this injunction would be used to censor “Glory to Hong Kong” globally, building on the growing tendency of Hong Kong authorities to apply abusive laws for actions committed outside Hong Kong’s territory. In June 2023, Hong Kong authorities charged a 23-year-old Hong Kong woman with “doing … acts with seditious intention” for Facebook posts that advocate Hong Kong independence while she was studying in Japan. The Hong Kong government was responsible for 50 instances in which Meta said it was forced to remove content globally between July 2020 and June 2022.

Facebook may have caved on those occasions, but to its credit Google refused to change its search results to display China’s national anthem, rather than the protest song, when users search for Hong Kong’s national anthem. We should have a better idea of what the Internet companies affected intend to do in this case on 21 July, when the first Hong Kong High Court hearing takes place. The stakes are high: if they agree to censor the protest anthem, China will be encouraged to demand more global takedowns of material it doesn’t like. On a more positive note, it seems that the Streisand Effect applies just as strongly here as elsewhere:

The attempt to ban the song outright pushed it to the top of the charts in Apple’s iTunes store in Hong Kong last week as people rushed to download the title.

They never learn.

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Filed Under: anthem, censorship, china, glory to hong kong, hong kong, itunes, japan, pro-democracy, protests, streaming, streisand effect, thomas dgz yhl
Companies: apple, google, meta, spotify