The Trade Marks Ep. #1 - The $52,000 Question

[Bix]

http://davidbix.com/the-trade-marks-episode-1-the-52000-question/

 

Welcome to the first episode of The Trade Marks, the first episode of a new show from David Bixenspan (me!) and Dylan Hales

A jumbo-sized inaugural episode outlines our concept and touches on:

- The arrest of UFC/WWE torrent capturer Sir Paul and if it actually means anything.

= WWE’s anti-counterfeit lawsuits to enable them to seize merchandise in the radius around WrestleMania.

- The increasingly vocal anti-piracy movement in indie wrestling.

[BillThompson]

This will be on iTunes soonish, yes?

[Bix]

This will be on iTunes soonish, yes?

 

Yes, and in the meantime you can also subscribe manually using http://feeds.feedburner.com/thebixshow as the feed URL.

[Steenalized]

About a quarter in and fascinated by this podcast so far. I feel like it was made specifically for me, given the confluence of IP, law, and wrestling going on here. We'll see if I have any more thoughts to speak to as I listen to it all. I get what you guys are saying about the action figures too and I agree (well, I'm on Dylan's side of the validity of IP, though I don't even buy the moral argument he supports, but that's beside the point). Anyhow, at least in the 9th Circuit and possibly elsewhere, courts have said you own a right to your own image for publicity purposes. I'd wager WWE wrestlers sign this over in their contracts to the WWE, which in turn would give the WWE the power to enforce the right. As a result, that's where the WWE gets off on seizing even custom made action figures, even if you take some other action figures, piece them together, paint them, and then call it a HHH figure or whatever. I think that's morally and ethically dubious to say the least, and counterproductive to their actual fanbase and market, but I'd guess they do have the right.

[pol]

Really enjoyed this. Not sure if it would be somewhat beyond the scope of what you guys are trying to do, but I've been thinking recently that I'd love to hear a podcast on the way economics influences the booking style of different promotions e.g. CMLL running the same building several times per week, the WWE's huge TV rights money and Network, the indie supercard model, etc...

[Bix]

About a quarter in and fascinated by this podcast so far. I feel like it was made specifically for me, given the confluence of IP, law, and wrestling going on here. We'll see if I have any more thoughts to speak to as I listen to it all. I get what you guys are saying about the action figures too and I agree (well, I'm on Dylan's side of the validity of IP, though I don't even buy the moral argument he supports, but that's beside the point). Anyhow, at least in the 9th Circuit and possibly elsewhere, courts have said you own a right to your own image for publicity purposes. I'd wager WWE wrestlers sign this over in their contracts to the WWE, which in turn would give the WWE the power to enforce the right. As a result, that's where the WWE gets off on seizing even custom made action figures, even if you take some other action figures, piece them together, paint them, and then call it a HHH figure or whatever. I think that's morally and ethically dubious to say the least, and counterproductive to their actual fanbase and market, but I'd guess they do have the right.

Remember, though: They didn't seize all of the figures. It's more likely they only seized figures where the label on the baggie had some kind of WWE trademark on it.

[Steenalized]

I did not know that, and that helps explain the talk you guys had directed on confusion in the market place. It'd also be a lot easier to take a muscular blonde action figure with a WWE logo or WWE written on a baggie and claim it's infringing on their IP than it is to do so on just a muscular blonde action figure with no further info attached. Resale is legal, original works are legal, but it can always come down to the WWE seizing what they reasonably can since who's going to have the resources to fight it?

[Bix]

I did not know that, and that helps explain the talk you guys had directed on confusion in the market place. It'd also be a lot easier to take a muscular blonde action figure with a WWE logo or WWE written on a baggie and claim it's infringing on their IP than it is to do so on just a muscular blonde action figure with no further info attached. Resale is legal, original works are legal, but it can always come down to the WWE seizing what they reasonably can since who's going to have the resources to fight it?

 

Could've sworn I mentioned that during the show, but here's the page in question:

 

[Steenalized]

You very well may have, I listened to the first half at work and so I was somewhat distracted.

[soup23]

One thing that was touched on a bit at the end but I was interested in opinions on was Smart Mark Video. They do have that culmination of indies and do have a digital download service but at $12 a download at least for shows that could be 10 years old, it feels like a market they are really missing out on. Ditto the ridiculous nature of them still charging $15 a pop for DVD's and having some of the worst sales I have ever seen. I would gladly pay $10 a month for a streaming service that would have IWA-MS, Chikara, CZW, and random other indies libraries with some of the newer stuff.

[thecubsfan]

1) as best as I can recall, when video trading sites have suddenly disappeared or closed up, there's usually a spill over flood onto other message boards - this one, DVDVR, the Observer, whatever - with people who were caught by surprise and are trying to figure out what happened. Maybe they lost some money, maybe they just want to know where else they can get to access, but there's always threads started and drama and angst and whatever.

if Dreamer's piracy company shut down a site that, for one show, was doing 50K views (or even 5K views), shouldn't we expect to be reading those sort of comments from dissatisfied "customers"? The wrestling interent is a much wider and separated place now than it was even a few years ago, but it seems reasonable people would be talking about something of that size getting shut down even prior to Dreamer's message. Bix wouldn't have to hunt around to see how many downloads the show got because it'd at least as public knowledge as the man who's merchandise was seized. We'd know the name of the site or the uploader. None of that happening seems like this shutdown claim must be at the very least overblown and comes off as fictional. I hope Dreamer is in on the work.

2) I thought the idea of indy promotions banding together for an indy take off on a WWE Network. I think getting promotions to get along is tough, but the tech barrier in getting something like this together is immense for small organization. You noted how long it took WWN Live to get the Roku channel going and figured it was because they didn't realize the value, but I'd guess they probably also had trouble with the learning curve of getting on there and couldn't afford to hire someone who could do it.

Ultimately, the best people to handle distribution of video now are probably going to be the best people to handle distribution of video later. A Smart Mark Video's streaming network (or any other middle man video provider) would make the most sense, since they're already bringing different promotions together. It's a dilemma for them though - it risks cannibalizing their main revenue stream without the other streams a promotion would have, but they'd completely lose if someone else was successful in creating the same concept and they were cut out.

[WrestlingPower]

Re: the Wrestlecon bust thing I heard directly from a few of the parties involved soon after the incident. Luckily the "raiders" didn't go to that table first or it could have been worse. I guess it wasn't exactly a secret what was going down so Bill was able to get a heads up and may have been able to misplace some of the merch before they arrived at his table. His partner was able to be diverted from the table otherwise 2 vendors would have been busted instead of one. Apparently he was in the process of hiding stuff under the table as the raid occurred which made it more suspicious.

 

Not going to name names, but selling that type of merchandise was nothing new at all at conventions. Pretty much since conventions have existed and VHS evolved into DVD, it was standard practice to see multiple vendors set up at conventions with largely "bootleg" merchandise. I heard some were smart enough not to bring WWE owned DVDs to Wrestlecon itself but I doubt there was much thought behind what inventory others brought. It was just standard practice to bring a large selection of your website based inventory to conventions. You'd be surprised how many people show up at these conventions who have ZERO idea that it's even possible to get season sets and stuff from the past like this. Very very few care that it's "unauthorized", in fact the only few that do would be in a case where the bootlegs are being sold for roughly the same price as the original somewhere else in the room.

 

I agree with your talking point that valuing these discs at anything more than the $2-3 per that was probably the price point is ridiculous. I guess maybe they up the value based on the percieved offense of trademark infringement and the "how many others they may have sold already". Nearly 10 years ago when WWE was cracking down on trading websites, Bill and several others paid fines to WWE legal where the price point was set based on some combination of how much stuff they had on the site, how long the site had been up & running, and perceived traffic to the site. I'm aware of at least 5-6 vendors who paid the fine, took down/hid the content on their site, and moved on with their lives.

[Bix]

Re: the Wrestlecon bust thing I heard directly from a few of the parties involved soon after the incident. Luckily the "raiders" didn't go to that table first or it could have been worse. I guess it wasn't exactly a secret what was going down so Bill was able to get a heads up and may have been able to misplace some of the merch before they arrived at his table. His partner was able to be diverted from the table otherwise 2 vendors would have been busted instead of one. Apparently he was in the process of hiding stuff under the table as the raid occurred which made it more suspicious.

 

Not going to name names, but selling that type of merchandise was nothing new at all at conventions. Pretty much since conventions have existed and VHS evolved into DVD, it was standard practice to see multiple vendors set up at conventions with largely "bootleg" merchandise. I heard some were smart enough not to bring WWE owned DVDs to Wrestlecon itself but I doubt there was much thought behind what inventory others brought. It was just standard practice to bring a large selection of your website based inventory to conventions. You'd be surprised how many people show up at these conventions who have ZERO idea that it's even possible to get season sets and stuff from the past like this. Very very few care that it's "unauthorized", in fact the only few that do would be in a case where the bootlegs are being sold for roughly the same price as the original somewhere else in the room.

 

I agree with your talking point that valuing these discs at anything more than the $2-3 per that was probably the price point is ridiculous. I guess maybe they up the value based on the percieved offense of trademark infringement and the "how many others they may have sold already". Nearly 10 years ago when WWE was cracking down on trading websites, Bill and several others paid fines to WWE legal where the price point was set based on some combination of how much stuff they had on the site, how long the site had been up & running, and perceived traffic to the site. I'm aware of at least 5-6 vendors who paid the fine, took down/hid the content on their site, and moved on with their lives.

 

Was WrestleCon the first where the vendors had to sign agreements not to sell anything they didn't have the rights to, though? At WrestleCon, I don't recall anyone else even selling bootleg DVDs in the first place (to the point I was really surprised to see Bill there), including one well known online seller who went under his website brand for publicity but only sold above board merchandise like action figures. Also, unless they weren't around Sunday (I only went Saturday), I know for a fact WWE missed at least one vendor selling (really nicely made) duplicated vintage PPV posters.

 

With hindsight I wonder what would've happened if anyone turned down the WWE "settlement offers." As far as I know, they didn't sue anyone like the RIAA did. I knew one guy who got hit and he was really, really upset by the whole experience, especially since he was not any kind of volume seller but got targeted because he had a website right around the time less and less traders were maintaining websites.

[KrisZ]

I gotta believe there were people at WrestleCon that were doing wink wink deals where they met up with them at a different location to make deals

[WrestlingPower]

I'm not aware what the wording of said Wrestlecon vendor contract would have said, but that general idea is not a new concept. There has been language alluding to at least absolving the promoter of any responsibility for the Charlotte conventions dating back years and the 2 WrestleReunion shows I did in LA had similar language. I think it's been kind of don't ask/don't tell all along as promoters are probably so busy running the shows that it's certainly not anything they police but they may not necessarily know what's going on either. I've always kind of taken that language in the contracts as the promoter covering themselves, but whether any have specifically stated "I as vendor promise not to sell unauthorized merch", I can't recall.

 

I think it's no coincidence whatsoever though that DVD vendors at conventions have completely dried up. The past few years in Charlotte there have been MAYBE 1 vendor other than Highspots selling any DVDs at all. The convention landscape has kind of changed over the years. If you aren't bringing in vendor guests you are largely squeezed out. Merch-only vendors seemed be be getting less & less dollars spent at their booths over the years so how much was supply vs. demand and how much was being afraid to sell bootlegs, I don't know.

 

Re: the WWE settlements over VHS, I'm aware of some that just straight up paid the fee so as not to rattle their cage & others that negotiated the price down. I THINK there were some that just agreed to take their site down instead of paying but it's been so long I can't recall. Mike King is the only guy I ever heard being sued and/or prosecuted over it and that was from RF rather than WWE from what I heard.

[goc]

As far as Sir Paul goes, I think he could have done all his wrestling torrents and been fine. From everything I've read it was the UFC stuff that generated the complaint.

[WrestlingPower]

A conspiracy theory I meant to mention earlier.

 

In the early days of the NWA Legends conventions in Charlotte, Charles Robinson was known to come to the convention & walk around & look at vendor booths. Apparently one year he was specifically asking vendors why they thought they had the right to sell X,Y,Z on their tables. So in subsequent years we would have people on the lookout for him and conveniently move stuff out of sight during the times he was there. Whether he ever reported back to anyone in corporate & put the idea of monitoring conventions on their radar who knows. But Mania weekend is the only time we've heard of any policing of conventions.

[Dylan Waco]

I know for an absolute fact that Robison acted as a stooge which is funny considering his background

[WrestlingPower]

Finished the show. I was thinking that RAWlternative might be a good avenue for SMV to try the "pay as much as you want" idea.

 

Wasn't sure if you guys saw the Highspots response to Johnson's article. Their point was more toward why they don't do big shoot or documentary projects anymore rather than delivering live shows but that might be a topic for a future show. That and crowdsourcing/Kickstarter. I think Ellbow Productions is still using that model for their stuff that Highspots is a partner in.

[Bix]

Finished the show. I was thinking that RAWlternative might be a good avenue for SMV to try the "pay as much as you want" idea.

 

Wasn't sure if you guys saw the Highspots response to Johnson's article. Their point was more toward why they don't do big shoot or documentary projects anymore rather than delivering live shows but that might be a topic for a future show. That and crowdsourcing/Kickstarter. I think Ellbow Productions is still using that model for their stuff that Highspots is a partner in.

 

Haven't seen the Highspots response. Link?

[Indikator]

Not sure why I didn't think of it earlier, but because of a video I just remembered the maybe first wrestling piracy issue.

http://wrestlingclassics.com/.ubb/ultimatebb.php?ubb=get_topic;f=10;t=004290;p=1#000003

"By the way, the French Pathe guys were sued as they apparently made an illegal bootleg video from a distance. It's a pity that I couldn't find out how the lawsuit turned out, but we do learn that the first big piracy issue happened already back then."

I can't find the clipping right now so a translation of the newspaper article might take a while - if anyone is interested.

As you can see few things in wrestling are ever new. For instance, I have found midget wrestling matches by a midget circus troupe from 1895 (somewhere in the Baltic states, I have to look again).

[sek69]

Fascinating show. I do wonder how was WWE able to file these preemptive lawsuits under seal, for years apparently. The way it was described made it sound like some Patriot Act level nonsense. Was Uncle Jerry able to convince a judge Al Qaeda might be selling merch at WrestleCon?

[Steenalized]

It's not suspicious or unreasonable to file a case under seal. If the WWE thinks someone is going to be infringing on their IP and they name the party in the case preemptively, well that person isn't going to show up to Wrestlecon or wherever and sell knock off goods, are they? How long they stay under seal and/or go without a named defendant will depend on whether they actually go forward with the claim and on local rules.

[JNLister]

Mentioned this on Twitter, but the "what if everyone who pirated it had paid" argument doesn't just fall down on grounds of money. I'm willing to bet that a large proportion of stuff that is torrented/downloaded doesn't actually get watched -- people get it because they see it, think they might watch it at some point, and get hold of it before it disappears. When it comes to purchases of downloads or one-off streams, people are only going to pay for stuff they definitely intend on watching, probably very quickly.

 

Of course the game changes when you get "all you can stream" services where the key is to make sure it's cheap enough and has enough content that people keep subscribing and don't necessarily calculate whether it's good value for the amount they actually watch.

 

Worth noting that Pivotshare, the subscription service now used by Smash, is the same one used by ICW in the UK, which puts up all its live events plus a weekly TV show and shoot interviews. They launched in March for the equivalent of about $6 a month and quickly reached a thousand subscribers. It's a 70-30 split, so they are on course to be getting around $50,000 a year, so we're talking enough to pay one or two people a full-time salary.

[WrestlingPower]

I talked to someone last night with first hand knowledge of the Wrestlecon bust from 2013. Apparently it wasn't an "all of a sudden" raid. The WWE officials had apparently walked the convention floor undercover on the Friday, asked questions of vendors to see what items they had, and maybe even made some purchases. Then Saturday they showed up less than 2 hrs after the doors opened, with police with them, and went straight for the tables of the worst offenders.