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So You Think You Can Dance? TikTok and the Appropriation of Viral Choreography

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By: Sofia Ellington

Since 2020, viral TikTok dances have helped promote some of the biggest hit songs in the music industry. Artists and record labels have made millions on increased streams of those hit songs. TikTok itself is valued at around 65 billion dollars. However, most dance creators on the platform retain no rights in their choreography, meaning that they do not profit directly off the licensing or use of their dances that help make both the music and TikTok popular. Black, Indigenous, People of Color (BIPOC) artists are behind some of the most popular viral dances and are particularly affected by social media platforms that make it difficult to receive recognition and publicity for their work. However, the crux in extending protection to TikTok dances through a Western Intellectual Property (IP) regime is that videos are meant to go viral through large scale replicating and copying, not just through users merely viewing them. Registering those dances could restrict and change the nature of interactive sharing on the platform, which suggests that copyright may not currently be suited to the demands of modern social media platforms. Artists will want to look to alternative regimes, such as Indigenous IP, as inspiration for how to protect their dances while leaving non-commercial sharing unrestricted.

TikTok has an Accreditation Problem 

BIPOC artists are behind some of the most popular viral dances to songs such as “Savage” and “WAP,” but TikTok’s algorithm, which shows undated videos in an endless stream detached from chronology, makes it almost impossible to uncover the original choreographer. Due to this accreditation difficulty, many dances go viral once a famous, oftentimes White, creator on the app posts a video of themselves doing the dance. The publicity for the dance then focuses on the already famous creator instead of the choreographer who originally created the dance. 

It was not until months after rapper K Camp song’s “Lottery” inspired the viral dance “Renegade, ” that the original creator, 14 year-old Jalaiah Harmon, was correctly credited in an article by The New York Times. Originally, the dance was accredited to two White TikTok creators, Addison Rae and Charlie D’Amelio. Before the New York Times Article was published, Rae was invited on The Tonight Show to perform some of the dances that made her famous, including “Renegade.” She failed to shout out any of the original creators of the dances, leading to backlash. The hashtag “BlackTikTokStrike” trended in 2021 to draw attention to the centrality of Black artists to the platform as well as rampant appropriation and lack of credit. 

The Hegelian personhood theory of property ownership posits that our autonomy and personality is intrinsically tied to what we own and the outputs of our creative expression. Lack of protection for these BIPOC artists, whose work is appropriated and uncredited on TikTok, is harmful, not just to their bottom line, but to the sense of control over their autonomy and personhood. Even though the unfairness of her uncredited dance was not lost on Harmon, she told the New York Times that she has continued to choreograph because ultimately, “it makes me happy to dance.” 

Can Copyright Protect TikTok Dances?

Whether Copyright can protect viral dances is more complicated than a simple yes or no. Copyright protection is available for original works of authorship that are fixed in a tangible medium and fall into a list of non-exhaustive categories in the Copyright Act of 1976.

The fourth category includes choreographic works, which are defined by the Copyright Office as, “the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole.” Most TikTok dances easily meet this definition, but copyright requires that choreographic works amount to more than social dance steps or simple routines, an additional hurdle for TikTok dances to clear. 

The prohibition on copyrighting social dances or simple routines is well settled and informed by the utilitarian goal of copyright in the Copyright Clause of the U.S. Constitution, which states that Congress has the power to secure copyrights “to promote the progress of science and the useful arts.” Copyright tries to balance creating incentives for creation without preventing the free flow of ideas. It would be antithetical to the goals of copyright to allow one person to lock up simple steps or the building blocks of dance and prevent future artists from using those ideas to progress expression of the art form. 

While most complex TikTok dances will rise above the level of a mere social dance and be eligible for protection by meeting the statutory elements of choreography, found in the United States Copyright Office’s Circular 52, copyright must balance incentivizing new work without chilling the ability of other creators to build upon that work if TikTok is to remain an interactive platform. TikTok relies not just on viewership, unlike past song and dance media platforms such as MTV, but on participation in the content which presupposes copying and replication. This built-in assumption is obvious through the apps tooling which permits a user to “Duet” or “Stitch” other creators’ videos to their own. 

Shayné Abram and Zhané Miller went viral in 2020 for their choreography to the Remix of Megan Thee Stallion’s song “Savage,” and are in the process of applying for copyright protection for their moves. Their concern is protecting themselves against commercial exploitation, not dance challenges on TikTok. If protecting against the commercial use, and not the social use, of dances is the goal, alternative IP regimes may offer inspiration for a system of protection without the potential downside of chilling creative expression.  

Indigenous IP 

The 2004 broadcast of the Grammys featured a performance by OutKast’s Andre “3000” singing “Hey Ya!” Outcast was joined onstage by dancers wearing Indigenous “symbols usually reserved for ceremonial purposes, like feathers and war paint.” Additionally, the introduction to the performance appropriated a sacred Navajo/Diné  “Beauty Way” prayer which is used for sacred ceremonies and considered improper for use in entertainment. The incident left many questioning if federal laws could effectively prevent offensive appropriations of non-tangible sacred property. 

Congress has passed statutes such as The Native American Graves Protection Act and the Indian Arts and Crafts Act to protect Indigenous tangible cultural property. However, Western IP laws are often too narrow to protect intangible Indigenous property, such as song and dance. Instead, those forms of property are a continual collaboration and conversation in the community, not the work of a single author— one of many reasons that they are ineligible for copyright. 

Many Indigenous nations have utilized their sovereignty to create tribal laws that reflect a wider conception of property ownership that protects sharing sacred customs among the tribe while prohibiting improper and exploitative uses. While these laws are not binding on courts outside of the reservations’ jurisdictions, using tribal laws outside of the tribal context can influence courts to respect alternative means of recognizing property. A wider conception of property that is recognized in Indigenous IP could be an inspiration for how the current copyright system can evolve to protect against commercial appropriation while still allowing for the social and communal sharing of dance. 

Toward a Better Platform 

For creators on TikTok, there are huge monetary and personal incentives for receiving credit for choreography. An increasing desire to gain copyright over these dances is important for BIPOC creators in order to reap the economic benefits of their labor. However, fear of enforcement for copying and sharing these dances could lead to a chilling of expression on the platforms that made them popular. Creating a space for communal sharing and participation in the expression of these dances makes TikTok a powerful platform. Social media companies should feel incentivized to create a more rigorous system for accrediting and certifying original creators to prevent copyright enforcement mechanisms from dampening participation and engagement. There is value in looking outside of the traditional IP system, whether to Indigenous IP or to alternative licensing schemes, to work together to create platforms that encourage community sharing but prevent the appropriation and exploitation of individual users’ content. 

Technology and the WGA Strike: How AI led the Guild to Picket

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Photo by Genie Music on Pexels.com

By: Karina Paup Byrnes

On October 9th, 2023, the Writers Guild of America (WGA) strike ended when the WGA successfully ratified a new three-year contract with the Alliance of Motion Picture and Television Producers (AMPTP). The AMPTP represents hundreds of studios and production companies, including Netflix, Universal Pictures, Disney, Paramount Pictures, and Warner Brothers. One of the issues at the heart of this contractual dispute were provisions pertaining to the use of artificial intelligence (AI) to generate scripts, therefore lessening the need for traditional writers. The WGA is acutely aware of how new technology can change scriptwriting: in recent history, studios have used the popularity of consuming media through streaming to decrease their writers’ pay. Instead of allowing studios to dictate how new technology is diffused into scriptwriting, the WGA demanded that writers had contractual protections against studios exploiting the use of AI in the writers’ room.

The potential effects of AI echoing the same negative consequences of streaming technology led the WGA to be proactive in asserting the need of regulating how AI would be implemented. The fact that the WGA wanted control over how AI would be used in writers’ rooms was an issue that the AMPTP did not want to compromise on. Ultimately, the strike successfully led studios to agree to limit the use of AI, along with other WGA provisions. The new contract signaled a major victory for collective labor movements because this was a highly publicized instance of restricting the use of AI in a particular employment sector. However, even with the WGA contract finalized, there are still unanswered questions about how technology incorporated into scriptwriting, specifically AI, will impact writers’ rooms legally.

In 2012, Netflix introduced a new way of consuming content called “streaming” which allowed users to watch television through an internet connection. Streaming changed the way viewers watched TV, creating a ripple effect that altered the way platforms produced scripted television. Prior to the streaming boom, networks hired writers to draft 20 or more episodes a show per season. Each time networks aired these episodes, writers received a royalty check for their writing credits. Once streaming became the most popular way to consume content, a season of TV often became shortened to about half as many episodes. With television shows now being watched on a streaming platform and no longer broadcasted, writers received fewer residuals for their projects. Suddenly, writers were getting hired for shorter projects and were receiving smaller paychecks.

As WGA members felt the effects of streaming over the previous decade, an additional disruption in TV technology loomed: the use of AI to create television scripts. The WGA is keenly aware of the potential consequences that AI can have for writers. Therefore, WGA members sought to define the limitations of AI during contract bargaining, establishing regulations of AI in scriptwriting before the tool would interfere with writers’ rooms like streaming did. This was a major point of contention between the WGA and the AMPTP during the negotiation process because in the past, major studios used the power of technology to increase financial gain and content production, often at the cost of their writers.

The new contract between the WGA and the AMPTP is a significant win for writers. The agreement stipulates that AI cannot be used to write or rewrite scripts and prevents AI-generated writing from being classified as source material. The contract specifies that all writing credits will be maintained by TV writers themselves, not AI programs. In addition, writers can independently decide to use AI should they choose to, but studios cannot mandate that writers use AI in their scripts. Finally, all AI-generated materials from studios that make it into the writers’ rooms must be labeled as such.

The step of outlining specific provisions pertaining to AI in the WGA contract demonstrates the members’ awareness of how technology can and will impact the future of their livelihood. Due to legal gaps in the regulation of AI-creation tools on both federal and state levels, collective bargaining groups and unions are incentivized to take their own measures in determining how AI will be regulated in the workplace.

This however does not mean that all problems related to AI in the TV industry are solved through the ratified contract. Beyond the concern that AI could replace the need for writer’s rooms, there are important unanswered legal questions regarding how television scripts written by AI would be regulated. If AI were to be used for a TV show, it is unknown how the AI technology would affect compensation for a drafted work product, let alone how to factor in the compensation for residuals of reruns of any episodes. Even more problematic is the fact that AI is unable to distinguish between copywritten material and material that is available to freely source. There have already been a growing number of copyright infringement suits brought by writers against AI companies for generating text from the writers’ works through the AI’s algorithm. The use of AI as a writing tool will create a new chapter of legal battles that have yet to be tested.  

The ratification of the WGA contract signals that there are real and concrete apprehensions of how technology can shape the way we create and consume media. With many unknowns regarding the legalities of AI, it is natural that artists and creators want to protect and preserve space for traditional scriptwriting. Only time will tell how the issue of AI will continue changing the TV industry. But for now, the WGA has sent the message that they will continue to fight for financial fairness in the writers’ room.

Oh Snap! Shutter Sound Regulations aren’t that Sound

/ Washington Journal of Law, Technology & Arts / 1 Comment

By: Bharat Manwani and Naghulan Sudhaharan

Upskirt Photography: A Voyeuristic Parallel

Back in 2008, in the midst of the Inaugural Season of the Indian Premier League (“IPL”), renowned Indian actress Mandira Bedi vocally disapproved of cameras going up the skirts of cheerleaders. The IPL is infamous for sleazily recording women and invading their privacy, but this is not just about the world’s most famous cricketing league. It brings notice to the much broader problem of upskirt photography, often referred to as “Upskirting.” Upskirting usually involves capturing non-consensual photos or videos of the area inside the skirt from under the garment or even while it is being worn. Upskirt is a form of voyeurism, an offence defined under Section 354C of the Indian Penal Code as “any man who watches, or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed.” The Criminal Law (Amendment) Act 2013 clarifies that an upskirt photographer can be punished under Section 354C of the Indian Penal Code. Section 66E of the Information Technology Act 2000 grants additional protection against capturing, publishing, or transmitting images of private areas.

The Evolution of Shutter Sound Regulations

The United States of America, however, antithetically differs upon the voyeuristic nature of upskirt photography. A Court in Washington, D.C. bizarrely upheld the right to take upskirt photographs. The D.C. Penal Code defines voyeurism to be unlawful under circumstances where an individual has a “reasonable expectation of privacy,” and since it was a public place where the defendant took upskirt photographs, the court held that the victim shall not expect privacy in such a circumstance. There were no charges pressed against him. This outlook was not restricted to Washington, D.C., as the Massachusetts Supreme Juridical Court and the Texas Court of Criminal Appeals took up similar perspectives. In the midst of these controversies, a New York representative introduced The Camera Phone Predator Alert Act, a legislation that attempted to curb upskirt photography which unfortunately died in Congress. The idea behind the bill was similar to most shutter sound regulations: it required mobile phones with cameras to make an audible sound within a reasonable radius of the phone so it would alert the others around the device if they were being snapped without their consent. The bill’s failure might have been a result of the country’s general reluctance to curb upskirt photography, as it infringes upon other’s civil liberties. Japan, on the other hand, is unbridled from such restraints and has codified shutter soundregulations. It all started with cell phone manufacturers voluntarily banning users from disabling the shutter sound in light of the rising upskirt photography incidents. Apple, which has always deferred from making region-specific modifications, had also joined the wave. Upskirt photography has formally been prohibited under the Anti-Nuisance Ordinance in Japan. Their courts continue to punish the perpetrators for offences committed more than 15 years ago. The legislation employs a comprehensive approach to safeguard only one particular aspect: the safety of women. Despite its broad language, the law unequivocally declares that the subject matter of the photograph is inconsequential. If the act of being photographed causes a woman to experience any discomfort or anxiety, the person behind the camera could be punished under the law. In fact, merely aiming a camera towards the victim, even without capturing an image, is sufficient grounds for arrest. With similar shutter sound regulations imposed across various jurisdictions, invites the question if they have been effective in curbing upskirt photography?

Skirting the Law

The regulations did not mark the end of upskirt photographs, as the photographs are still notoriously famous and reach a wide audience across the globe. Conceptually, the enactment meets the object of the legislation: the sound of the shutter would immediately alert individuals nearby that they are being photographed. But it is only the conceptual realm within which such a legislation is effective. The Anti-Nuisance Ordinance in Japan has not found any success. Contrarily, there has been a surge of over 4000 cases of upskirt photography in the country, as compared to the figure of 1700 such instances reported a decade ago. It is arguable that the introduction of a shutter sound has led to an increase in alertness of individuals and hence a higher reporting of such cases. However, similar trends across different parts of the world would indicate otherwise. The upward trend in instances of upskirt photography has raised doubts regarding the implementation of such legislation. The moot point being that it is simply not practical to enforce this mandate. Smartphones are not just limited to the units manufactured in Japan, and since these regulations are not in place for all countries that run the industry, the shutter sounds could only alert individuals if predators use units manufactured in Japan. While it makes no sense having a mandatory shutter sound for a unit made in Japan and not having such mandates for that same phone manufactured elsewhere, the Japanese units are additionally vulnerable to being overridden. Apple indeed joined the bandwagon with other phone manufacturers in banning users from disabling the shutter sound, yet years later it teaches users how to disable the shutter sound on its own support forum. It is shocking to see how the shutter sound mandates are being overridden. A report based in Osaka noted predators use third-party apps that mute the shutter sound, some of which were originally designed to take photos of babies while they are asleep. Social media giant Snapchat, which publicly detests upskirt photography, is hypocritically another third-party app that mutes the shutter sound on devices. In essence, shutter sound regulations apply to devices manufactured only in certain countries, yet even those devices have the ability evade these mandates which makes these legislations ineffective. An inefficacious framework ultimately takes a toll on women safety, making it easier to skirt these regulations and indulge in voyeuristic conduct.

The Way Forward

The current shutter sound regulations are being overridden, limiting their impact on curbing upskirt photography, and highlighting the need for more comprehensive and practical solutions to address these crimes. A mandatory shutter sound may not stop all crimes, but it would at the least alert nearby individuals. These regulations are theoretically infallible and the onus of imposing such mandates rests upon all cell phone manufacturers across the globe. In fact, it will not be the first time where all these firms within the industry have come together to agree upon imposing a manufacturing restraint. With no universal framework in force, the United States of America, following a vast majority of countries, has enacted legislation to disrupt SIM locking practices in 2014. Various nations united to offer greater consumer choice and made sure no telecom operator could bind devices to only one SIM provider. Women’s safety being a more pressing concern than consumer choices, cell phone manufacturers of the world would have no qualms to patch third-party loopholes, impose mandatory shutter sounds, and crackdown upskirt photography.

Consumer Digital Privacy 101: Simple Steps for a Safer Digital Life

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Photo by Burst on Pexels.com

By: Perla Khattar *

In an era characterized by ubiquitous data collection and increasingly sophisticated digital technologies, privacy has emerged as a crucial concern for consumers worldwide. As personal information becomes more vulnerable to exploitation, the importance of privacy management cannot be overstated. While regulatory measures and institutional safeguards such as privacy by design play an essential role in protecting user data, the responsibility of safeguarding privacy ultimately rests in the hands of individuals themselves in the absence of effective regulation.

While it is evident that comprehensive legal frameworks and industry practices are necessary to ensure the responsible handling of personal data, the limitations of such measures have become increasingly apparent. The pace of technological advancement often outstrips the capacity of regulations to keep up, leaving gaps in protection. Moreover, the sheer volume of data generated and the diversity of platforms and services utilized by individuals make it challenging for regulations to cover every aspect of privacy. This blog post aims to provide practical tips to help consumers establish new habits and make small changes to enhance their privacy protection.

These tips do not provide foolproof protection against sophisticated threats, but adopting privacy-conscious habits can bolster individual privacy resilience and help mitigate risks. The primary objective of this blog is to equip individuals with beginner-level tips for privacy management. This newfound awareness can help individuals make informed decisions about how their personal information is collected, used, and shared, and can prevent them from falling victim to scams or other forms of exploitation. By being aware of their data privacy rights, consumers can also hold companies and organizations accountable for how they handle their personal information, and can help to promote a culture of greater transparency and accountability in the handling of sensitive data. This blog aims to bridge the gap between theoretical privacy principles and practical implementation, empowering everyday consumers to navigate the digital landscape with greater confidence and privacy consciousness.

1.     Understanding The Alphabet Empire

It is widely believed that Google has engaged in shady privacy practices in the past. For example, the company has been criticized for collecting and using biometric personal information from its users without their knowledge or consent. Some have also criticized Google for not being transparent enough about its data collection and usage practices, and for not providing users with adequate control over their personal information. Overall, there is a perception that Google does not prioritize the privacy of its users, and that it is more focused on maximizing its own profits.

An Alternative to Google Docs

Google servers can see everything that is typed in the Google documents, simply because consumer’s work and data is not end-to-end encrypted. Google isn’t particularly transparent about what it is doing with the collected data, but it is assumed that the company is scanning and analyzing the contents for marketing purposes.

However, consumers wishing to collaborate in real time on documents can do so privately: platforms like Cryptpad and Skiff are similar to Google docs but are end-to-end encrypted, making it impossible for the company to access your work in progress. 

Search Data Collection

Google keeps a database on every single user, where every search query is added. Then, specific information is extrapolated like location, medical concerns or political views, and sexual preferences for marketing. Google collects everything users search for, and everything they decide not to search for: the moment the user types in the search bar, and gets suggestions for common questions asked, everything that was typed, regardless of whether the user pushed “enter” or not, is sent to the Google database.

This information is used to be broadcasted to thousands of companies in auctions where advertisers and data brokers are bidding to purchase data. Additionally, Google uses this information to target consumers with specific search results, or even manipulate or sensor results.

To avoid all this, consumers can switch to Startpage, a company that gives users Google search results without any of the trackers, leading to the ability of viewing proxy websites without revealing any personal information.

De-Googling a Phone

First, replace Google applications with an alternative: OSMAnd instead of Google Maps, New Pipe and Odysee instead of Youtube, Brave Browser instead of Chrome. Them, download applications from F-Droid or Aurora to avoid connecting to the Google Play Store. Finally, use an operating system other than Android, such as Graphene or Lineage.

2.     Recognizing The Importance of Virtual Private Networks

Some Virtual Private Networks (“VPN”) record consumer’s unencrypted information and unencrypted internet activity to sell it to third parties. Some other VPNs log consumer’s IP address and activity. Other VPNs demand access to photos, nearby Wi-Fi networks, and nearby Bluetooth devices in order to gather more data on the user.

In fact, 105 of the most popular VPNs are owned by just 24 companies. When searching for a VPN, consumers should look for products with no logging or low logging guarantees with paramount encryption, and choose the jurisdiction they’re connecting to carefully: in Switzerland, for example, the government can’t compel VPN providers to log IP addresses.

Here are some private VPNs that do not sell any information and that protect user’s information from Internet Service Providers: The Freedom of the Press Foundation’s shortlist includes Mullvad and ProtonVpn.

3.     Switching Browsers and Search Engines

Browsers and search engines often collect personal information from consumers in order to improve their services and provide more personalized experiences. This data can include information such as the consumer’s location, search history, and browsing habits. This data is typically collected through the use of cookies and other tracking technologies, which are small pieces of data that are stored on the consumer’s device and can be accessed by the browser or search engine. This data is often used to target advertising, to improve search results, and to develop new features and services. Overall, the collection of personal data by browsers and search engines can be both beneficial and potentially invasive, depending on how it is used and who has access to it.

General Idea

A browser is comparable to a car that takes consumers to their destination. Famous examples of browsers are: Chrome, Brave, and Firefox. A search engine, however, is comparable to the map that lets consumers arrive to the final destination, because search engines index all the sites on the internet. Famous examples of search engines are: Google Search, Bing, Yahoo.

Some companies have both a browser and a search engine: Brave has Brave browser and Brave Search Engine. DuckDuckGo which is a popular search engine now has a browser.

Consumers are free to choose which search engine to use in their browser URL bar: someone that uses Chrome, might set their search engine to Google. More private options for browsers and search engines include Brave Browser in combination with Brave Search.

Choosing the Best Browser

Brave has great built in privacy, built-in ad blocker and it prevents websites from fingerprinting the machine; these securities are also enabled by default.

Firefox is great for users wanting to customize their settings, because it has great extensions like the Facebook container that stops Facebook from tracking consumers. However, users wishing to use Firefox need to configure the privacy settings to their linking, as it is not a default in the product.

Tor is the ultimate private browser since it bounces the traffic off the browser to different nodes before reaching the final destination so that no single node knows both who originated the traffic and the final destination. However, although Tor is the go-to browser for anonymity, it makes browsing significantly slower.

Bounce Tracking and Debouncing

Sometimes, before taking consumers to a specific website, computers will bounce the user to several tracking websites before reaching the needed destination. This is because companies are getting sneaky in the way they track consumers.

When consumers are loading a website, they can sometimes see different URLs appearing on the bottom left of the page. Before being taken to the intended website, users are being bounced through tracking websites that collect personal information. This phenomenon is called bounce tracking.

Stopping this can be done in two ways: First, debouncing: some websites can learn which websites consumers are intending to visit, and therefore can skip over all the tracking websites, taking users straight to their destination. Brave has the only version that ships in the browser. Second, unlinkable bouncing: some websites will visit these tracking domains in a throw-away profile to decrease what the tracking site can learn about the consumer.

Browser Plugins

Browser plugins are pretty dangerous because they are able to capture passwords, credit card details, track browsing, insert advertisements and redirect traffic. Even an extension that does only minor things like checking for discounts, may require access to everything users do in browsers to function. Companies that provide browser plugins are not necessarily spying on users, but they can actually do so if they decide to. Sometimes these extensions are sold to shady companies, or hijacked by hackers.

The solution is to avoid installing plugins, and to delete the ones that are not in use. And if consumers decide to use one, they should absolutely trust the company before using the plugin and check for the permissions that are being granted. If a company doesn’t need access to everything a consumer is doing, then permissions need to be restricted to the strict necessary.

4.     Adopting Better Password Safety

Password safety is extremely important for protecting privacy. This is because a strong password is often the first line of defense against cyber-attacks. If a hacker is able to guess or gain access to a person’s password, they can potentially gain access to that person’s sensitive information, such as financial information, personal documents, and more. Furthermore, if a person uses the same password for multiple accounts, a hacker who gains access to one password can potentially gain access to all of that person’s accounts, which can be even more devastating. Therefore, it is crucial for people to use strong, unique passwords for each of their accounts, and to regularly update those passwords to ensure the continued protection of their privacy.

Shady Password Managers

Most commercial password managers have key loggers that are used to scan what consumers type. Therefore, password managers need to be reputable, ideally open source or be checked by third party audits. All passwords should be encrypted on the device itself, and encrypted at rest so that the service provider can never get access to consumer’s passwords.

Password Configuration

Simple passwords like “password” or “12345678” are one of the easiest ways to get a consumer’s account hacked. Passwords should be unique and randomly generated, with a different password for every account.

With a good and trusted password manager, users can remember only one secure master password and the application will randomly generate and store all the rest of them to make sure that inevitable data breaches don’t put all your accounts at risk.

Two-Factor Authentication

Consumers should always add two-factor authentication whenever possible, whether its required or not, because it makes a huge difference when it comes to protecting accounts.

Wherever supported, it is best to use a security key like the YubiKey. The text option might be easier, but it is less safe because hackers are notorious for performing “SIM Swaps” where they get the code routed to their device instead of the consumer’s. The authenticator applications like Okta are better than text, but the problem with authenticator applications is that it’s easier to steal the private key off the phone than off the YubiKey.

5.     Outsmarting Wi-Fi

When Wi-Fi is tuned on, the phone is constantly sending Wi-Fi probe requests, which are basically little packets of information that contain details about the phone. This information is broadcasted publicly for anyone to see. Essentially, the phone is going around announcing to any nearby Wi-Fi network that the phone exists.

Turning the Wi-Fi off when not in use is a great idea. But pressing the turn off Wi-Fi button doesn’t always mean that the action was successfully executed. If consumers have an android and they turn off their Wi-Fi, they won’t be connecting to a Wi-Fi network anymore, but their phone will still send out Wi-Fi probe requests. An additional step would be to switch off the “Wi-Fi scanning” in the settings. And on iOS, consumers can’t just toggle Wi-Fi off in the control center, it has to be done in the settings.

Final Thoughts

While it may be tempting to dismiss these beginner privacy tips as insignificant in the grand scheme of things, they actually possess the power to usher in a more sophisticated approach to privacy. True, they may not completely revolutionize consumers’ lives overnight, but they provide a solid foundation for living a privacy-conscious existence in today’s digital landscape.

By implementing these tips, consumers take proactive steps towards protecting their personal information, maintaining control over their digital footprint, and mitigating the risks associated with online vulnerabilities. Each small action, such as using a password manager, or encrypting communications contributes to a larger framework of privacy-conscious behavior. In the face of growing privacy concerns, it is crucial to remember that change begins at an individual level in the absence of legislation. By embracing these beginner privacy tips, consumers actively participate in a larger movement towards a privacy-conscious society, where our personal information remains secure and our digital lives remain private.

*Perla Khattar is an Attorney at the Beirut Bar Association & J.S.D. Candidate 2027, Notre Dame Law School.

Monster Energy vs. Everyone: Why is a drink company challenging video games for using the word “monster”?

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Photo by Harry Singh on Pexels.com

By: Perry Maybrown

Have you ever been playing Monster Hunter and thought, “Huh, this must be related to Monster Energy.” While I personally have never faced this conundrum, it’s a scenario that Monster Energy has been very worried about. So much so, that for the past few years they have been targeting a wide range of industries to protect their trademark of the word “monster.” Two notable attacks that have been revived by the media were against Pokémon for “Pocket Monster” and Capcom for their videogame franchise “Monster Hunter.” Both complaints were filed in Japan and promptly dismissed. 

This has not deterred the energy drink company in the slightest however, as they have recently sent a cease and desist letter to independent development studio Glowstick Entertainment for their game Dark Deception: Monsters & Mortals. In their letter, Monster Energy requests that Glowstick never again attempt to trademark something with the word “Monster,” or have any trademarks that could at all resemble their own. They go on to request that the logo of the game be modified and sent to them for approval. Monster asked Glowstick to refrain from using the colors green, white, and black (a task that is especially daunting considering the Glowstick logo is green on a black background). Furthermore, Monster required Glow Stick not emphasize the word “monster” more than any other in the title of their game.

Furious with these demands, founder and CEO of the studio, Vincent Livings, took to Twitter to air his complaints and share the cease and desist letter. This has led to extreme reactions from the Twitter sphere and news outlets which have shared the story. 

Are these reactions warranted? Or is Monster simply protecting its rightful trademark? 

A trademark can be composed of a variety of elements: words, images, sounds, even colors can be used as a way to denote a specific brand or product. What a trademark is not, is complete ownership of a single word, symbol or color in all situations. Rather, a trademark only protects the use of your mark in connection with similar goods or services. Boiling it down to the most basic level, infringement occurs when a consumer may become confused between two marks. This is referred to as the likelihood of confusion. 

The courts have determined a test and list of factors that they weigh when deciding infringement. On the west coast (9th Circuit) these are referred to as the Sleekcraft Factors. The factors are as follows:

(1) Strength or Weakness of the Plaintiff’s Mark. 

(2) Defendant’s Use of the Mark

(4) Actual Confusion.  

(5) Defendant’s Intent.  

(6) Marketing/Advertising Channels. 

(7) Consumer’s Degree of Care.  

(8) Product Line Expansion. 

(9) Other Factors.

On the east coast they are the polaroid factors, which are similar to Sleekcraft: 

(1) the strength of the plaintiff’s mark; 

(2) the degree of similarity between the two marks; 

(3) the proximity of the products; 

(4) the likelihood that the owner will bridge the gap; 

(5) evidence of actual confusion; (6) defendant’s good faith in adopting the mark; 

(7) the quality of defendant’s product; and 

(8) the sophistication of the consumers. will likely cause confusion with plaintiff’s mark.

While a court may review all of these factors to determine the likelihood of confusion, there are several that are most pivotal when reviewing the scant facts we know for Monster Energy. To start with, product line expansion refers to whether the goods and services are related and the likelihood of one company expanding into the others business. This again is to help figure out “likelihood of confusion” on the part of the consumers. For example, it’s easier to become confused between two purses both made by a company called Gucci, however consumers are less likely to relate the two if it’s a sink maker that goes by that name. 

In the case of Monster,it is critical to ask, how likely is a beverage manufacturer to enter the video game market? Not only are the two products completely unrelated, the video game industry is difficult to break into on a good day. 

Furthermore,  the strength of the mark is evaluated on a sliding scale, with the weakest being what is called a “generic mark.” Generic words do not receive trademark protection because everyone needs to use them to describe their business. For example, if I created a coffee company called Coffee Company that would be generic. Imagine if I could now prevent all other coffee companies from using the word “coffee.” That would be wild! 

Next up is determining how descriptive the trademark is. Basically, is your trademark just describing the thing you are selling? These types of trademarks usually do not receive protection, but can in certain instances. 

The strongest marks are fanciful, arbitrary or suggestive. A fanciful mark is the best one you can get from a legal standpoint, because it’s a word you just made up (think Pepsi, Kodak etc.). A suggestive mark is one that kind of sounds like the product (like Netflix). And finally is arbitrary, which is just a random word that is used on a product that may have meaning elsewhere but isn’t directly descriptive of the product itself (Apple Computers is a great example of this). The Monster Energy mark would likely either be considered arbitrary or suggestive. Maybe suggestive because its name implies that you get monstrous, or huge amounts of energy from it. Arbitrary perhaps because the monster seems unrelated to the beverage. 

Here is the issue for Monster; while it is arbitrary for their product in particular, the word is descriptive when it comes to the video games they are challenging. Take for example Monster Hunter, which is a game series where you… hunt monsters. Or Pocket Monsters, where you collect monsters, you can fit in your pocket. At worst the word may be considered generic as it is used so ubiquitously throughout the industry to describe games and their contents. 

This is important because courts are unwilling to impose trademark protections for generic marks, because of how damaging it could be to the market. While descriptive marks may receive some kind of protection it’s a challenge that requires a large amount of work from the company that wishes to secure the trademark. Thanks to this, courts would be even more unwilling to find in Monster’s favor and force video game companies to stop using such a descriptive term. 

Conclusion

Like the saying goes, “with great power comes great responsibility.” While trademark owners do have rights to that mark, their power comes with responsibility  as they must defend their mark or risk losing it. In that sense, it seems logical that Monster is so zealously fighting to keep the word “monster” out of other companies’ mouths. On the other hand, this overkill method to attack any use of such a common word isn’t a great look for the company. 

At the end of the day, the decision of whether infringement exists is for the courts to decide. And it’s Monster’s choice to spend the money getting to that point, win or lose. We don’t have all the facts for either of these cases, and only know one side of the story, so it’s difficult to say if there are more factors that could play into this issue. But for now, it seems to be David vs Goliath. And the public is on David’s side.