The particulars of this content (and the action by The Yes Men) aside for a moment, this is just another illustration that the current shape and function of the internet is highly censorable. This is a fixable technical problem.
There needs to be an easy, low-friction way for groups like The Yes Men to publish content such that no single actor can subsequently be pressured to remove it. Whether it's federated web, P2P, blockchain, onion routing, some other tech, or a combination of all of the above, this needs to be an increasing priority so that viable civic discourse can continue and blossom.
This could also be abused, just as the libel/trademark/copyright laws can. Imagine Microsoft kind of money behind a smear campaign with untraceable funding.
We don't really have to imagine it. Peter Thiel anonymously used Hulk Hogan as a proxy for his revenge, which makes one wonder exactly how often it happens without us ever knowing.
This would enable far more than civic discourse most of it undesirable. In many ways it could even hurt civic discourse by enabling harassment, hate speech and worse. In fact everything we know points to exactly that happening.
Freenet is also infamous for being mostly child porn, because it is the one place where you can't find the person who uploads it and you can't censor it either.
Child exploitation content is an unfortunate canary in the coal mine for free speech. If a service or network is robust enough (in terms of censorship resistance and anonymity) for them, then it will be good enough for you too. On the other hand, if whatever platform you are publishing to is free of this objectionable content, then yours isn't safe either.
I don't agree, and I don't think most people do either. The sane approach we would like is to have an internet where harmful and illegal content like child porn can be censored and the criminals behind it identified and prosecuted, but where legal forms of free speech are strongly protected from censorship.
There isn't really a slipperly slope here. Very few forms of content are banned in this way, and the list is unanimously agreed upon and changes extremely infrequently. No one is trying to ban extreme-but-consensual-among-adults porn. No one is trying to ban extreme graphical violence. Etc. etc.
The only area where there is a problem, as this case illustrates, is with copyright and trademarks. The correct solution to this problem is to implement more sane copyright laws, internet or not.
If it's possible for the arm of the law to reach particular speech, is that speech really free?
We need an internet were speech isn't protected because the government blesses it and decides not to censor it. We need an internet where the government is wholly unable to censor it. Then we'll see what actual free speech looks like.
...and the matter of what speech is permissible is far from unanimous. The list of content that various governments deem taboo is enormous and growing. In the USA we have it much better than most places, but even here we have a very robust system of denial-of-service via DMCA and other legal means, including the trademark at issue here.
There's little doubt in most people's minds that the kinds of actions that The Yes Men execute are protected by the first amendment, yet here we are.
Analogy: think of the police system. Yes, in a dysfunctional society, police can beat you up, demand bribes at random, even kill you. Yet we all agree that police do useful work.
Is the correct solution to this problem to introduce a technical system where everyone can hide perfectly from the law if they spend some time and effort? Or is the correct solution to implement a system where the powers of the police are clearly and strictly limited and where the punishment for transgressions is severe?
What a strange conclusion to which to jump. While I happen to agree that police are a benefit to society, their placement as a tool of the state is something that I hope to see changed, maybe even in my lifetime.
Professional police are a very new thing in common law society; still in an experimental stage in my view. And with the emergence and eventual maturity of the internet, I (and I think many of us through the open source world) think that it's totally plausible that police-as-a-service-of-the-state will be judged to be more trouble than it's worth.
> Is the correct solution to this problem to introduce a technical system where everyone can hide perfectly from the law if they spend some time and effort?
We aren't talking about "hiding perfectly from the law," at least not if the law in question casts no shadow over speech based on its content. Being able to publish content without any possibility of destruction of that content seems, at least to me, an entirely orthogonal venture to that of exacting violence or theft of some kind (ie, the more natural implications of the law).
If the state is made unable, in a physical and technological sense, to reach out and eliminate particular bytes-on-the-wire deemed illegitimate, I assert that the law will grow stronger, not weaker, precisely because we won't have to concern ourselves in the political realm about what to and not to censor.
It also gets almost no scrutiny compared to Tor, which got shredded with scrutiny. I imagine smart, well-funded attackers might find something. I wouldn't trust it as the only layer of security.
When people ask me why I lean toward hosting my content on infrastructure I control (as far as I can), I point then to articles like this.
I get that it isn't for everyone - you have to know what you are doing and you have to have the time (at least initially) to do it - but if you can do it, you avoid all manner of third party unreliability.
The trend to blindly rely on tens or even hundreds of third parties for stuff like web sites is a direction I'm personally not comfortable with. Just one issue can take everything down.
The lower level your dependency (like an ISP vs a hosting company), the harder it is, intentionally or accidentally, to be affected like this.
The UK has a pretty fierce reputation for plaintiff-friendly libel laws, and hosting companies get loads of dodgy complaints. At Bytemark we got sick of them a few years back and spent _thousands_ taking advice from Carter-Ruck, the UK's go-to libel experts.
Since 2010 we demand very specific standards for legal complaints (more than a typical "scare letter"), or a court order - and most complainants drop away before actually doing things properly. Typical exchange might be:
them: "Huge sections of this site are defamatory to my client! I demand under enormous penalty that you take the whole thing down"
us: "We've not read it, do you want to tell us where the defamatory statements are?"
them: "It's blazingly obvious, and we'll take you to court if you don't comply"
us: "We don't know your client, or their reputation, and we don't read our customers sites, so you'll need to tell us about these defamatory statements in more detail."
Very occasionally the solicitors _will_ do the work, and we're on notice at that point, but we then talk to the customer, explain the situation and ask them take down just the statements we've been notified about.
The other strategy that works very often is to ask both parties if we can put them and our customer in touch, then let them sort it out.
None of this is a free-speech thing, just the climate we found ourselves doing business in. We've always found it perfectly possible to respond to legal complaints across thousands of customers without pulling the plug in a panic.
I guarantee I never would have heard about this video (which sounds hilarious) if not for this news story.
Pretty sure the NRA knows who Barbara Streisand is. There were all upset about her movie, The Long Island Incident. Maybe they are not as familiar with her Effect.
Let's ignore the topic of the video itself since gun control is quite a controversial issue. If you start producing political videos (and despite being a parody, it's certainly political) that contain libelous "paid for by" messages you are going to have problems regardless of the subject. There's a reason you see these messages in every political ad that airs in America, people take them very seriously.
To the anonymous downvoters, note that it is illegal (and not just a civil issue) to falsify this kind of statement in some states. I'm not sure what people are disagreeing with since nobody has left a dissenting comment, so I'll just ask this: if the target here was a parody video encouraging mothers to abort 104-week-old fetuses that claimed to be "paid for by Planned Parenthood" would you have the same opinion? If not I think you're letting your opinion on guns get in the way.
> (To the anonymous downvoters, note that it is illegal (and not just a civil issue) to falsify this kind of statement in some states.)
Can you say more about this--can you give some example state laws?
Note that Google apparently is comfortable leaving the video up on youtube with the "Paid for in part by the NRA" notice intact. https://www.youtube.com/watch?v=_8punyPP-bs
The states I've checked all have a law against misrepresenting the origin of a political advertisement that advocates (even indirectly) for/against a candidate or party, and sometimes ballot measures are included too. Some of them are more strict than others, this is from Texas for example:
A person commits an offense if, with intent to
injure a candidate or influence the result of an
election, the person enters into a contract or
other agreement to print, publish, or broadcast
political advertising that purports to emanate
from a source other than its true source.
It's hard to say this is a traditional political advertisement. Whether you could convince a judge that an ad purporting to be from the NRA (and presumably making Republicans look bad) is intended to influence an election is questionable. If they had included mention of Hillary or Trump in the video this would be pretty clear cut, but as is it's harder because the link between supporting or attacking candidates through political entities they do or don't support without actually mentioning them by name is a case law issue.
'It's hard to say this is a traditional political advertisement. Whether you could convince a judge that an ad purporting to be from the NRA (and presumably making Republicans look bad) is intended to influence an election is questionable.'
This seems to be the key issue. It seems unlikely that a prosecutor could achieve a conviction under these laws, given the specific meaning of some of the terms used (as defined in §251.001). I haven't seen the video, but it sounds like it was a general parody of the NRA?
At any rate, a prosecutor would have to prove that:
1. The creator of the video has specific intent to harm a particular candidate, or otherwise influence the election result.
2. The latter part of #1 (influence result) seems to be made irrelevant by the definition of 'political advertisement': "...means a communication supporting or opposing a candidate for nomination or election to a public office or office of a political party, a political party, a public officer" [§251.001 (16)]
1. The Yes Men is assumedly not paying to promote this video (so it's not "an ad"),
2. The message is not electioneering.
We're used to seeing, "paid for by" and "I approved this..." messaging in electioneering ads that are regulated by the FEC. The NRA, a 501(c)(4), has to play by different rules to keep its status.
IANAL, but I'd assume that the NRA would need to argue that the video puts their 501(c)(4) status at risk to warrant legal action outside of just playing the copyright/damages card.
The NRA, as a 501(c)(4), is most certainly able to do electioneering, although there are of course constraints (I think it's limited to members?).
But it also has a PAC, the Political Victory Fund, which is quite able to do the usual stuff, here's their first TV ad for this election they just cut, I've set the time to the last 5 seconds where they claim it per the law: https://youtu.be/SIl20jItjHY?t=25
> note that it is illegal (and not just a civil issue) to falsify this kind of statement in some states.
While true, the Yes Men have a long track record with this type of parody. On this basis, I assume that the legal and monetary repercussions have been negligible.
A list of their past targets:
* George W. Bush
* Dow Chemical
* WTO
* U.S. Department of Housing and Urban Development
* ExxonMobil
* BP
* Shell Oil
* U.S. Chamber of Commerce
* GE
* NY Times
* NY Post
OK, these three alone have more money and lawyers than the NRA could ever dream of. If they didn't pursue legal action, there's not a snowball's chance in a hatchery this is going to hold in court.
Streisand effect would be desirable in this case because then everyone would know it wasn't actually the NRA that produced the video and that it isn't an official position of the NRA.
I have friends who are big-time NRA supporters. They regularly share articles on facebook that mock this kind of thing -- nitpicking inconsistencies, claiming they don't understand various points, etc. I wouldn't be surprised if the NRA itself has shared this video, with a clickbaity title like "when gun-grabbing idiots run out of arguments, they do THIS instead" and a counterargument below it that uses the word "stupid" or "moronic" at least 4 times.
The Yes Men expect and desire to have their parody websites shut down by legal action. It is part of their publicity playbook. They purposefully build their sites to maximize the chance it will happen.
This is a fairly awful policy for cloud hosting and VPSes. Microsoft's policy, and I suspect Amazon's and Google's, are to forward legal requests to the company or client using their cloud services and wash their hands of the matter.
That is partially correct, but the host (DO), still needs to ensure the content was removed. If they pass it on and the account owner ignores it, DO could potentially be liable.
Yeah, but I'm on DigitalOcean and I got a takedown just the other week for something a user uploaded. I removed it and informed them within the hour and all was good.
It's possible they ignored this type of thing or that they just didn't want the mess...
That's how most places handle it in my experience, but it does depend on the scope. I've received some from large companies with big legal teams and then our hosts' legal counsel gets very involved in the process. Given this is the NRA, it might have to do with that, or it could simply be some overzealous staff member.
Isn't is cheaper, easier and safer (from a "network takedown" perspective) to host your sites on S3? I don't think anyone, not even the NRA, is powerful enough to take down AWS.
Only if it's 100% static. Most websites are going to want at least some metrics, maybe a few forms, etc. And I suspect it's not THAT much more difficult to get AWS to do a more targeted takedown. I mean YouTube's pretty powerful, but they'll notoriously cave to a DMCA takedown pretty damn enthusiastically.
In that scenario Amazon would possibly suspend your entire account, or suspend all access to S3 (if you didn't respond). Or even if they only suspend the bucket in question, unless you're splitting apart your customers into their own buckets, the same issue applies where other customers go down because of one customer.
I think it's better to work with a smaller company in these kind of instances. Larger companies like Amazon are going to just do whatever it takes to make the complaint go away. They don't want trouble.
I think just the opposite is true. Amazon has more reputation as risk and will go through proper due process. Small companies probably don't even have that conversation internally.
There is a law protecting hosting providers -- it's the DMCA safe harbor provisions. But in order for those safe harbor provisions to apply, the host needs to take the content down almost immediately or have the account owner do it (grey area on how quickly this really is IMO, but it's usually <24 hours).
After the content is taken down, the content owner can file a counter-notice (basically saying the complaint is incorrect). And then if no lawsuit is filed by the complainant in a certain number of days, the content owner can put the content back online.
For the record, I'm no fan of the DMCA because it's rampant with abuse and trivial to forge notices. It is too easy to silence speech with the DMCA, at least temporarily, and the repercussions for sending false DMCA notices are a joke. Plus, anyone can send a DMCA, even foreign entities, which makes going after the complainant for damages for false reports not even worth the trouble.
It doesn't sound like Digital Ocean handled this very well. You are allowed to give ample time to the site owner to disable the offending content. And then the counter-notice process starts to get it back on-line.
Only if the site owner ignores the notice should the VPS be turned off entirely.
"We received notice on behalf of a trademark holder that a customer of DigitalOcean was hosting infringing content on our network. DigitalOcean immediately notified our customer of the infringement, and the customer was given a five day period to resolve the issue. The infringing content was not removed within the specified period even though several notifications were issued. Per DigitalOcean’s terms of service, a final reminder was issued to our customer and, when no action was taken, access to the content was disabled. The infringing content was subsequently removed by the customer and all services were restored in less than two hours."
The content is not infringing. There is a fair use exception to trademark law to protect product criticism, works of art, irony, etc. You cannot use trademark law to silence all criticism of your organization.
Fair use is a defense. You can preemptively declare it as that, and hope that whoever you're parodying will see the light, but it doesn't give you immunity. Once a DMCA notice is served, and not obviously invalid, the content has to be taken down by the carrier. In exchange for having to do that, the carrier isn't liable. That is safe harbour. Simultaneously the content uploader can either get the supposed owner to retract their notice, or inform the carrier they'll hash it out in court. And only then, in front of a judge, does "fair use" come into play.
Fair enough. Still, Fair Use remains a defense in court; and i expect that whatever kind of notice was actually sent has similar procedures that do not include steps like "completely ignore it".
Oh come on - just as fair use remains a defense in court, the NRAs claim must also be proven in court. Unlike a DCMA, the compliant does not require DO to take down the web site.
Clearly DO choked and hurt free speech in the process.
You're assuming it is a formless complaint, as opposed to a complaint conforming with specific legislation. If you know it is a formless complaint, can you please point to the source of your knowledge on that?
As far as I'm aware the complaint has not been made public. But unless you can point to a single piece of "formed" legislation for this, I'm certainly going to assume it is formless. Both because every trademark complaint I've seen has been formless, and it is impossible to disprove that a law exists in America, only the converse.
The DMCA provides a safe harbour provision for hosts who take down content after a notice.
Libel / slander don't require a take down, but also don't provide any protection for the hosting company.
If this goes to court then the Yes Men won't be able to pay for the NRAs legal fees. Which means that the lawyers will be tempted to go after DO to get paid.
DO is a low cost hosting company. You can't expect them to ride or die.
Fair use is not an automatic thing, I'm not so confident this web site (no opinion on the video) would be protected by it, especially since, as I note elsewhere in this sub-thread, such a project is not entirely beyond the realm of possibility.
Did the NRA have a court order to take down the website? If not, then their takedown notice was just a letter saying 'please take this company offline because we believe it is infringing', which isn't enough.
It's enough if the target thinks it's enough, which in this case they apparently did.
There's nothing saying you have to obey a random cease-and-desist letter, but there's also nothing saying you can't obey it. If DO prefers to take action for letters like these, that's their right. And if they give their customer warning and a way to respond, I can't even say it would make me uncomfortable to be their customer.
Fair use applies to copyright, not trademark. Trademark law is much stricter. And, as someone else said, it's just a defense that can only be used in court; tell it to the judge.
The video also said it was "Paid for in part by the National Rifle Association of America with additional support from Smith & Wesson Holding Corporation.", which is a blatant lie. They were hosting fraudulent content, and DO was right to take them down.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech,* or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
*Except when it involves a lie or violation of a trademark.
The Supreme Court ruled in Gertz v. Robert Welch, Inc. that defamation is not protected speech, and the Supreme Court's word is final and absolute. No amendment is needed, as the Supreme Court has consistently ruled multiple times that freedom of speech is not absolute. Your arguments are the same kind of logic used by tax protesters who concoct arcane reasons that they don't have to pay income tax yet invariably find themselves convicted for tax evasion.
Fraud has been illegal for as long as the US has existed. It's not protected. If it was protected as free speech, fraud laws would have been overturned sometime in the last 225 years.
In Dred Scott v. Sandford the court ruled that the bill of rights does not apply to African Americans. Are you a supporter of that decision or did you mistype? Where does it say that the court gets to supersede the constitution? I think you will find that it does not.
Copyright claims are not criminal, they're civil; two different things.
Furthermore there are limits to free speech in the US. For example: obscenity, treats of violence, military secrets, etc.
Australia has no bill of rights, yet judges have upheld individual right to protests (Victoria has a Charter of Rights, but that's it). China has free speech in their constitution. Germany has free speech, unless it has anything to do with the original Nazi party symbols.
So civil courts need not uphold the constitution? I understand the limits exist, but they are entirely unconstitutional. If you believe it would be a good idea to have such a law, go ahead and pass an amendment.
It supports the idea that DO is not responsible for wholesale, nonspecific "content" - there must be details regarding which pages are infringing.
It's great that DO gave them 5 days, but as a person who's used DO a lot for projects, I'm really disappointed by their lack of sophistication in this area.
To pull the plug on thousands of pages and say "five days is enough!" isn't enough.
That's definitely a reasonable amount of time (i've seen much shorter timelines at other places). Sounds like maybe Surge thought they were in the right (I think they are) and could ignore it, which was a bad call. Better to remove it and fight it using the process.
The "satire" sites gave no contest to the notifications, so no one looks at it even for 1 minute. If you get such notifications and disagree, with reasonable grounds, you should respond.
The part where the NRA filed a take-down request on something that used their logo in a way that was obviously satirical. Of course that would never stop an organization from getting rid of said satire if they thought they could get away with it and sadly DO proved them right in this respect.
From reading the other replies here, I don't know that it's a given that the NRA wouldn't prevail in court. In other words, they might have a case. So there's no bad faith for defending their trademarks if it's debatable, is there?
I'm not a judge, and I understand that it is very well possible to sue even if you know up front you have a lost case if you have deeper pockets than your opponent.
But let's look at what trade-mark law is all about: it's about avoiding confusion. Do you honestly believe that there is a ground for consumer confusion here, that consumers would believe that the NRA would actually put out these statements? Given the context of the publication as well as the content of the material itself?
Or could it be that the NRA figured out a way to shut down a viewpoint that clashes with their own through abuse of the law?
He really is despite being right for I'd say most (maybe?) of the population. Especially considering that even news sites occasionally report on Onion News stories as real news. There's also examples like this scholarly study on misperceptions among people who mortgage homes:
I am DO customer, yesterday when I heard this story it felt scary step by DO with no regard for customers as original tweet said, "Nothing but radio silence from @digitalocean while 38k sites remain down. Demoralizing."
So It was not Radio Silence but 5 full days notice in advance with multiple notices. Thank you for updating us about the other side of the story.
Has Suge responded to this claim by Digital Ocean? I wonder if these e-mails just got flushed into an endless e-mail bucket.
That's the issue when you build a service hosted on a service (DO, AWS, Rackspace). You could have thousands of customers, but if you miss one complaint about one customer, the whole thing goes boom. It's more of an argument for content creators hosting on the platform controlled by the data centre owners.
For Surge, and other large hosting platforms, it's an argument for them hosting their own dedicated servers in a data centre (which of course, raises the barrier to entry and costs for these types of solutions).
When dedicated server providers don't react to complaints, complaints are instead sent to their upstream transit providers. Dutch based hosting provider Ecatel is an example that quickly comes to mind where their upstream providers simply stopped peering with them due to content issues. Hosting providers typically do not like the overhead that comes with handling DMCA and similar requests, servers that are very high risk should ideally operate with their own ASN and peering arrangements.
Most hosting providers I have dealt with expect abuse resolution within 24 hours, five days is a very long time for abuse issues to be handled.
We responded within 22 minutes of the original complaint and have been in frequent contact with Digital Ocean over the course of the 5 days including a phone call only hours before where they asked us to either remove the content or fill out a counter claim. They redacted the counterclaim request and shut us down 39minutes later followed by 1 hour of radio silence.
5 days had elapsed from the time the original takedown request came in until our network was disabled but there was plenty of correspondence in between and when we had last spoke to Digital Ocean it was still an open issue.
No surprise there, 5 days is far longer than most providers will give you. You're lucky to get 24-48 hours to take down infringing content at most DCs in my experience.
Did the other guys even make an effort to respond?
We were in frequent communication with Digital Ocean and when we last spoke it was still an open issue. They had asked us to file a counterclaim but withdrew the request 39 minutes before shutting us down.
5 days total had elapsed from the original request which we responded to within 22 minutes.
Why wouldn't you simply forward the notice to the customer and tell them to respond within 48 hours? If the response doesn't satisfy DO, tell them sorry, upstream doesn't allow it, bye bye. It sucks, but that's how DCs operate sometimes.
It's pretty understandable for DO to not want to get involved in a legal dispute like that, buy your own IP range if you need to avoid this and take it to court yourself. You took on a huge risk yourself by allowing the content to stay on your network after you got the notice and may have implicated yourself should a trial be underway.
Seems insane that you let your entire service get nuked over one customer. And to publicly call this "radio silence"? They literally gave you a warning with an exact timeframe.
> Why wouldn't you simply forward the notice to the customer and tell them to respond within 48 hours?
We would have had we been sent a notice from the trademark holder but we weren't. Or even had DO been sent the request from the rights holder. This is the due-process we are asking for.
> It's pretty understandable for DO to not want to get involved in a legal dispute like that
To our knowledge Digital Ocean was at no time directed by the trademark owner to remove the content. This was DO acting on their own.
> They literally gave you a warning with an exact timeframe.
This is an exaggeration.
- We responded within 22 minutes of the original complaint.
- The complaint did not request takedown.
- We were not given timeline nor consequences until 24h before takedown.
- When given 24h notice We immediately asked for a call which Digital Ocean wasn't available for until the DAY of the takedown.
- We spoke on the phone with DO hours prior to the takedown which at their request was left with an action item to fill out a counterclaim.
- Digital Ocean withdrew their request for a counterclaim (unknowingly to us) and disabled our network 39 minutes later.
So in truth we had an email we hadn't received yet that gave us only 39min to comply with. We were warned 24h prior but DO wasn't available to discuss until only hours before the takedown and the last correspondence with them they requested a counterclaim to be filed. Our request for counterclaim documents was the last message they received from us before shutting us off.
> Seems insane that you let your entire service get nuked over one customer. And to publicly call this "radio silence"? They literally gave you a warning with an exact timeframe.
We made it clear to them on the phone that we would rather take down the content then have all our customers taken offline. Digital Ocean disabled our network knowing full well it wasn't necessary to have the parody site removed and gave us only a 39 minute window to comply which we did not see in time.
Digital Ocean went completely dark for an hour after disabling the network and ignored our attempts to reach out.
The statement contradicts the article's description of Surge's side:
>According to a series of tweets from the Surge twitter account, the NRA sent a legal complaint to Cloudflare, which then forwarded it to Digitalocean. Surge responded “within 22 minutes.” Digitalocean asked Surge to provide counterclaim documents. Some minutes later, Digitalocean shut down Surge.sh. According to Surge, 38,000 sites became unavailable.
If updating the main body of the article was too much trouble after the DO statement update, do you really think they are going to bother digging any further? The wrote the story they wanted to get the clicks.
1. Digital Ocean did NOT receive a complaint on behalf the trademark holder. CloudFlare was the company sent a complaint on behalf of the trademark holder, which was forwarded to DigitalOcean which was then forwarded to surge.sh. To our knowledge the NRA isn't even aware of DigitalOceans or surge.sh existence.
2. There was no known trademark infringement happening on surge.sh. There was a complaint sent to CloudFlare that such a thing was happening. Digital Ocean acted as if the alleged infringer was guilty even though there is nothing other than the complaint itself to suggest this is true.
3. Digital Ocean was aware that we were willing to remove the content with proper due process. We at surge do not have editorial control of the sites published to surge.sh therefore we wish to provide legal justification to our customers when their content is removed. This would provide our customer with a means of recourse if the takedown is in error.
5. We spoke with DigitalOcean on the phone at 11:02am where things were they said we needed to file a counterclaim with the NRA. We thought this was odd since the NRA doesn't know we exist however we were willing to do it anyway.
```
Thanks for sending this over. I'll get through this as soon as possible.
Do you mind sending over the counter-claim you are asking us to fill out?
thanks,
Brock
```
They responded at 12:47pm with the following...
```
I’ve shared the outcome of our phone call with our Trust and Safety team. Since this is not a DMCA complaint, a counterclaim does not apply here, contrary to my misunderstanding over the phone. I apologize for the incorrect information. [...] You have until 1:26pm EDT, a bit under an hour from now, to remove the content. Otherwise, we will need to disable networking to this Droplet.
```
We unfortunately didn't see that message until it was too late and at 1:26pm our network access was disabled followed by radio silence from Digital Ocean for the following hour.
So Digital Ocean communication to us went as such..
11:02am - "you need to remove the content or fill out a counter claim"
12:47pm - "we were wrong, no counter claim can be filed and you now have 39minutes to remove the content or we are disabling the network"
Since Digital Ocean realized they misrepresented themselves on the phone we would have preferred if Digital Ocean had picked the phone back up rather than shut us down with less than an hour warning.
Your timeline is a little confusing, the article states that you responded to contact from Digital Ocean "within 22 minutes" and "Some minutes later, Digitalocean shut down Surge.sh" however this comment seems to imply you had been aware of the issue and were discussing the issue with DO for approaching 5 days. Can you clarify the timeline with dates? Thank you.
Sure. 5 days ago we got forwarded a forward of a takedown request that was sent to CloudFlare from a representative of the trademark holder. We responded to that forward within 22 minutes of first receiving it and have been in communication with Digital Ocean ever since right up until about 1.5h prior to be shut down. The timeline I provided is the communication we had with DO on the last day leading up to the shutdown. Does that clarify things?
You've since clarified it, but neglecting to mention the fact that you've been working with Digital Ocean for 5 days prior to them turning off your droplet is not exactly transparency on your part.
Since the DMCA was not involved here, as far as I'm aware (IANAL) there's no obligation on DigitalOcean's part to take any action. DigitalOcean isn't an appropriate party to arbitrate a fair use dispute involving trademarks. Consequently, from my perspective, DigitalOcean shut a site down extra-judicially [1] purely because they received a request to do so from the NRA. DigitalOcean had no obligation to do so, and could have waited to receive a court order which the NRA could have sought.
It's frustrating and borderline absurd to me that hosting platforms get involved in dispute processes like this that properly should be handled by a court. What exactly is Surge's recourse here? Sue DigitalOcean to have their content put back up? That's ridiculous.
The DMCA provides a clear process: one party provides a claim asserting that some content infringes copyright. The owner can then provide a counter-claim asserting that it's not infringing. If they do, the content stays up, and if they don't, the content goes down. Providing a counter-claim, which requires asserting under penalty of perjury one's belief that the content is non-infringing, is the site owner's recourse to an unreasonable takedown request. Simple and clear. In this case, with no DMCA process, DigitalOcean is taking Surge down without any recourse for Surge to keep the content up in the event that the takedown request is unreasonable.
I don't know what the standards are for satire to be fair use. It wasn't very clear that the video was satire, but the nature of satire is that it's not always obvious to everyone. DigitalOcean should not have intervened in a trademark dispute between two different companies outside the DMCA. Or if they're going to make up a process, they should have at least followed the protocol DMCA established for Surge to assert non-infringement.
Surge should have been more transparent here. It seems like they were trying to obscure the actual timeline. I'd like to see Surge publish a full log of their communication with DigitalOcean and CloudFlare and related parties in the interest of full transparency, as validation that this is what has transpired. But on the other hand, Surge never should have been shut down in the first place, regardless of timeline. There was no counter-claim for Surge to file - what exactly were they supposed to do?
[1] OK fine, technically it's not extra-judicially because I'm sure DO's terms of service say they can do whatever they want. Nevertheless, it feels extra-judicial from a customer's point of view. Companies shouldn't get involved in arbitrating disputes between other companies - they are not a court and not competent to handle such disputes; they should simply participate in court processes as obligated by law.
Totally agreed about a simple nastygram requiring a takedown. But
> I don't know what the standards are for satire to be fair use. It wasn't very clear that the video was satire, but the nature of satire is that it's not always obvious to everyone. DigitalOcean should not have intervened in a trademark dispute between two different companies outside the DMCA.
The video itself doesn't have much of a leg to stand on. I personally think the approach of the Yes Men is brilliant, but they're obviously operating in a grey area where they can expect censorship via the legal system.
BUT that is irrelevant - it still is not DO's job to act as a judge and skip requiring a bona fide court order, especially when they're clearly dealing with a downstream service provider. If they want to be taken seriously as a platform provider, then they really need to apologize for this incident and fix their policies.
(Also what a horrible title. I guess the NRA stokes more rage with Vice's audience, but Digital Ocean seems to be primary party deserving blame here)
Yesterday, network access was taken down to sharethesafety.org which was hosted on our service by a customer, an intermediate platform provider. We want to let you know what happened.
On June 23rd, we received notice from the NRA's counsel that sharethesafety.org was infringing NRA’s trademarks. The NRA demanded that we remedy the problem by removing the material. In response, we followed our standard procedures for trademark infringement notices and informed the customer immediately of the NRA’s demands. We provided more than 5 days for the customer to respond to or resolve the issue. We also spoke to the customer on several occasions to inform them that we intended to take action on the trademark claim. They chose not to remove the violating material. Accordingly, our Trust & Safety team restricted network access to their Droplet, which caused an outage to all of their user’s websites hosted on that Droplet. In less than 2 hours of the outage, the customer was able to address the trademark notice, and network access was immediately restored.
DigitalOcean followed procedures that help protect us from having to resolve what can be complicated disputes between third party rights holders and our customers regarding IP issues. In this case we should have given greater care to the customer’s voice and their right to engage in parody. In retrospect, we believe that the website identified in the NRA’s takedown notice was not a trademark infringement but was instead protected by the First Amendment. We at DigitalOcean champion freedom of speech and the free and open web.
Going forward, we will be working closely with our legal counsel to review our Trust & Safety procedures so we can make better decisions. We are committed to providing our customers with the best level of service and supporting their rights and freedoms. That is our responsibility as an infrastructure service provider and one that I take very seriously.
Ample amount of time for what? The underlying problem is that DigitalOcean should not be arbitrating trademark disputes between companies. They're not competent to decide who is right and who is wrong. They should not suspend someone's content purely because someone claims to be the owner of a trademark, and claims some content is infringing. (Unless we're talking about obvious abuse, intentional malice, etc.)
What exactly is the recourse for the site owner if the claims are unreasonable or outright wrong? With the DMCA, there is a clear process: the site owner can submit a counter-claim, and the content stays up. What should properly happen at that point is the rights-owner can take the site-owner to court to pursue their claim. Instead, DigitalOcean acted as judge, jury, and executioner on behalf of the NRA, taking down content outside any established DMCA-like process, and without leaving Surge any recourse to keep it up.
DO was unduly spooked by an empty legal threat. This was not a DMCA notice, this was a trademark notice. Parodies are protected under trademark law. Bad form taking down even a single page, and terrible form taking down an entire service.
Don't confuse people with the truth, they don't care. I would also like to point out there are limits on parity which this video appears to push such as "finding a likelihood of confusion."
Especially since helping the "impoverished" become responsible gun owners is something various pro-gun activists do, so while it's very hard to see the staid NRA start such a program, especially right now, it's hardly beyond the realm of possibility.
" A NearlyFreeSpeech.NET member site is defaming me or otherwise injuring me civilly, or is infringing my non-copyright intellectual property rights.
Please forward a certified copy of your legal finding from a court of competent jurisdiction to our correspondence address. If you have not yet obtained such a finding, a preliminary injunction or court order is typically also sufficient.
If you are not able to obtain the above, you will need to work directly with the site operator to resolve your differences. We will have to fall back on our members' contractual assertion that the content they upload is legitimate and therefore we will not be able to get involved."
(Not affiliated in any way except as a happy customer. I use them for cheap hosting for some domains I control.)
It's important to note this is not just controversial content, it's outright libel claiming false official sponsorship from real organizations. The parody video says:
“Paid for in part by the National Rifle Association of America with additional support from Smith & Wesson Holding Corporation." [1]
Conversely, I could imagine a parody video created by extreme conservatives mocking Planned Parenthood by happily and cheerfully promoting "baby murder" and "baby parts harvesting for the good of medical science", and quoting the text "This advertisement sponsored and paid for by Planned Parenthood."
Independent of your political views, claiming false official sponsorship of a parody is wrong. Slanderous impersonation of a person or organization is not inherently protected by freedom of speech.
Not only is it defamatory, but in many states it's actually a crime.
For example, here's the law in Texas:
> A person commits an offense if, with intent to injure a candidate or influence the result of an election, the person enters into a contract or other agreement to print, publish, or broadcast political advertising that purports to emanate from a source other than its true source.
Saturday Night Live has been running parody advertising purporting to originate from real organizations for decades. I'm not a lawyer, but no one here has satisfactorily explained why this group running a fake NRA ad is a different animal from SNL running a fake McDonald's ad.
Also, assume nothing about my political views. I'm not an NRA member, but I have spent a couple of nice Saturdays shooting skeet with my son and his Boy Scout troop. My position would be exactly the same if this were a Planned Parenthood parody or if it spoofed any other politics-heavy organization.
But are they saying that it is paid for by McDonalds to run such an ad? Because that makes it sound like McDonalds would support the ad. But if they are just parodying a McDonalds commercial and not saying McDonalds paid for it then it is very different.
It "literally" is different. It isn't satire unless it is obviously satire. A comedy network is pretty obviously doing comedy. A random youtube video and webpage all faking being supported by a company is very different.
But it is the nature of satire that not everyone “gets it” immediately. For example, when Daniel Defoe first published The Shortest Way with the Dissenters, an anonymous satirical pamphlet against religious persecution, it was initially welcomed by the church establishment Defoe sought to ridicule. See JAMES SUTHERLAND,ENGLISH SATIRE 83–84 (1958). Similarly, Benjamin Franklin’s “Speech of Miss Polly Baker,” a fictitious news story mocking New England’s harsh treatment of unwed mothers, was widely republished in both England and the United States as actual news. See MAX HALL, BENJAMIN FRANKLIN &
POLLY BAKER:THE HISTORY OF A LITERARY DECEPTION 33–35, 87–88 (1960).
Or a little more entertainingly written:
The First Amendment Protects Satire Even When Reckless, Stupid, Or Ideology-Addled People Fall For It
Satire is still satire even when people fall for it, but not when it is intentionally misleading people. The sharethesafety.org website looks very legitimate. It doesn't have a parody or satire disclaimer anywhere I can find, it includes copyright information for the NRA, links to the real NRA and Smith & Wesson websites, and the style mimics the real NRA website exactly.
I haven't seen the video yet (at work), I'd assume it's very tongue-in-cheek, but the video was never taken down. But my first impression of the website, without knowing it is parody, is that this is a real project.
It even links to a "press release" on nrapress.org, which does not seem to be a real NRA website. Though all the links on nrapress.org point to nra.org or nraila.org, which are official.
Your links agree with the parent comment.
From the first:
> (2) the test for whether something is satire protected by the First Amendment, rather than a false assertion of fact that may be defamatory, is whether a reasonable person would take it as an assertion of fact given the entire context.
From the second
> In deciding whether something could reasonably be taken as an assertion of fact rather than satire, courts look to what an audience familiar with the publication and players would understand. Said the Court:
> The article’s primary intended audience — that is, readers of “The Politics Blog” — would have been familiar with Esquire’s history of publishing
satirical stories, with recent topics ranging from Osama Bin Laden’s television-watching habits to “Sex Tips from Donald Rumsfeld.”
and
> Could there be satire that is unethical because it is genuinely deceptive? I suppose so. (Hopefully not here.) But I think it would have to be a genuine attempt to deceive by a publication not known for satire
Thanks for the link. Since the case was dropped, I guess we can't know for certain. It looks like all pages on the parody website have been removed, though there are screenshots in the motion to dismiss. It seems like just the pages that look like fake press releases.
I generally agree with the EFF, but not in this case. Just my personal opinion, but I can see how the text of the fake press releases are parody, but not the website. The quality of the site obscures the parody. I think the Hillary Clinton article on The Onion linked above is funny. I wouldn't find it funny if it were hosted on h-clinton2016.com
The main claims were basically that the chamber of commerce parody is not a substitute for the real thing, and the parody is non-commercial. This isn't entirely the same case. This is an entire landing page made to look like a new initiative. Having a "Store coming soon" advertisements and sign up form also make this different.
The EFF already defended this very same group (The Yes Men) against the very same actions when they satirized the Chamber of Commerce (an advocacy group for big businesses):
Is this really satire or a parody though? Could almost view this as defamation. Is it really being satirical, or is it designed to make a company look stupid and like a joke? I am seeing this as being different than satire or parody like a site like the onion would do. If the onion went and created a site that looked very legitimate, linked to the real companies sites, and no where mentioned it was fake then I would also have a problem with that. But they don't. All of their jokes are within the onion, not spread across fake sites pretending to be from other companies.
I'm asking seriously: what makes that different from flashing the McDonald's logo and implying that McD's endorses it? Or Mad Magazine doing the same, for that matter? Or The Onion "quoting" political figures (eg http://www.theonion.com/blogpost/if-i-could-be-just-complete... which purports to be an op-ed written by Hillary Clinton, complete with byline and photo, with no disclaimer to the contrary).
As the other user who replied to you said, that is very different. When I am watching TV on a comedy network I am not confused thinking this is actually a legit McDonalds commercial while I am watching a comedy skit on a comedy network.
Now when there is a full blown website and youtube video claiming association with a company that is whole different story. How do I clearly know that the company did not actually pay for it? Am I just suppose to guess because there is no way the company would do that? That isn't how it works.
> Am I just suppose to guess because there is no way the company would do that? That isn't how it works.
Well yes actually, it is. But you will notice that this was posted on the Yes Men youtube channel, which is well known at this point, so you don't even have to.
Most of it is context and how a reasonable person would interpret it. Fake ads are commonplace on SNL (they aren't always for real brands), they use comedians known for being on SNL, and are often very silly.
No reasonable person watching SNL would see the Jim Carrey Lincoln MKC commercials and believe that Allstate and Lincoln were really airing a joint commercial in which Jim Carrey runs over Keenan Thompson in his Lincoln. But if they started airing those outside of SNL during regular commercial breaks things would probably be different.
It's the same thing with that Onion article. Anyone familiar with The Onion knows it's parody, and anyone not familiar will find notice pretty quickly. The article also doesn't make any false assertions or libelous claims against Clinton. It's just using her image to parody the idea of her pandering to an audience.
Also, less of a purely legal reason but, you only get in trouble if the other person doesn't like it. Brands are usually very happy to have their stuff parodied in a lighthearted way. Weird Al always asks permission before parodying a song (even though legally he does not need to), and almost never gets a no. More often than not, artists are incredibly excited to be parodied by Weird Al. To use the SNL Lincoln example again, SNL's fake advertisements had many times more views online than Lincoln's advertisements. All for free (for Lincoln)! They're getting people to watch for a minute or two a video all about the new Lincoln car, and they're not making fun of the vehicle or the company, just the strange acting in their real commercials. Jim Carrey never says "the acceleration in this thing sucks" or "the windows are too tinted, so I can't pay attention to the road", he just goes off on weird existential musings while twiddling his fingers.
Satire is and should continue to be protected by Freedom of Speech, but you should understand there are lines satire can cross to become libel, and illegal.
When a corporate or person's name/trademark is used explicitly and intentionally, freedom of speech does not automatically inherently protect the publication or media. In such a case, damages (if any) are resolved on a case-by-case basis, generally depending on the content and how indistinguishable it is from the real thing (and whether it's potentially damaging).
Saturday Night Live and The Onion are protected because both are widely known and clearly labeled as comedy/satire content. Neither is the case for this video, and as a result it's extremely likely they would fail at defending a lawsuit from the NRA if they did decide to prosecute.
P.S. My post assumed nothing about anyone's political views. The planned parenthood example was meant to provide balance via an analogical example from the other stereotypical political side.
I would think a video from The Yes Men would be easily identifiable as parody based on their past actions. Even if you are not aware of who they are, it's easy to find with a quick Google search.
That's not a fair assumption, I've never heard of the Yes Men for example.
I'd assume they knew what they were doing, as these sorts of concerns are often on the mind of satirists. They should have included a disclaimer or something making it clear that the video was a parody.
It's reasonable to think they may have been counting on short attention spans and ignorance to spread false rumors about NRA positions.
And that doesn't work for the web site, which is, after all, the only thing taken down. No mention of The Yes Men, it really tries to look legit and claims an NRA copyright etc. Even the whois info for the domain dead ends at the Whois Privacy Corp.
Its such delicious satire too. It has forced a lobby group that has an unyielding view point on the 2nd amendment to clash directly with the 1st amendment. Which in turn causes me to question my own unyielding view on the 1st amendment... Hilarious and brilliant stuff IMO, assuming this was all in the design of the satire.
It has forced a lobby group that is perceived to have an unyielding view point on the 2nd amendment
The NRA's stance is very much exaggerated, e.g. every piece of Federal anti-gun legislation passed with their approval until the 1994 AW ban, and since the passage of the Brady Bill the year before, which eventually set up the National Instant Criminal Background Check System (NICS), their baby, you might say, they've supported and are right now supporting legislation that uses the NICS to prevent people from buying guns from FFLs (gun stores).
To cover a bit more of their relationship with the 1st Amendment (which after looking at the Wayback Machine copies of the website, I'm not so sure is implicated, e.g. it does not come off as satire unless you know enough about the NRA's stolid style), they fiercely opposed McCain-Feingold, since it banned a lot of their political speech before elections (this was resolved in their favor in the Citizens United case).
This doesn't look like satire, they've even gone and created nrapress.org which mimics the actual NRA-ILA site. It is not obvious satire and the press release page looks absolutely authentic because they've ripped the NRA-ILA site design and are redirecting to the NRA-ILA site.
> I'm not a lawyer, but no one here has satisfactorily explained why this group running a fake NRA ad is a different animal from SNL running a fake McDonald's ad.
Maybe because:
> Saturday Night Live has been running parody advertising purporting to originate from real organizations for decades.
So is the implication is that if $SaturdayNightLiveRipoff that just started filming this year decides to do something similar, they don't get the same leniency simply because they're new?
I think the point the GP is trying to make is that when you watch SNL you know that there are going to be satirical commercials.
If you took a commercial parody from SNL and played it unaltered during prime time with no introduction, you would probably get in trouble even though the content hasn't changed.
Whether it's wrong or not is debatable I suppose, whether it's illegal really isn't. Given the entire context (including who the yes men are) this is clearly parody. As such it is protected speech under the first amendment. As such it is not illegal.
I think this kind of gets to the nut of the whole discussion here on HN. Everyone's talking about whether or not what the Yes Men did was legal, but IMO, the question is why did DO take them down over a legal threat ("...the NRA sent a legal complaint...")? The vice article was pretty ambiguous, but if this was a suit or court order, CloudFlare wouldn't be able to "pass." This apparently wasn't a court order, nor was it a DCMA takedown (or Vice's writing is just really bad). And it looks like youtube told them to come back with a court order.
I for one would be pretty embarrassed not to have recognized a "baby murder" PP commercial as satire. It's safe to call this libel after legal proceedings or an established expert consensus, but not before.
Slanderous impersonation of a person or organization is not inherently protected by freedom of speech.
This is technically correct, but you're putting the cart before the horse. By definition, "slander" is basically an act of false attribution (or impersonation) that is clearly without merit (i.e. does not promote legitimate discourse) and causes egregious harm (to specific individuals). The Yes Men's video is clearly satire, and as such, is just as protected of a form of free speech in the U.S. as donning a mask of Trump or Clinton, standing atop a milk crate in Union Square, and "impersonating" those figures.
Of course, Cloudfare apparently chose not to offer any "back" to the Yes Men once they got the nasty note from the NRA's legal people -- but that was just a business decision; it has no bearing on whether the content they were hosting was legally protected or not.
Considering something similar happened to surge in January, I'm surprised they haven't worked to mitigate this single point of failure.
Whether it's a failover strategy, negotiating a different business relationship with Digital Ocean, or whatever. There is a lot more they could be doing to stay online until they (Surge) are the ones choosing to pull the plug on a user's site (or are ordered by the courts to do so).
Steps have already been taken to to get us to the point where a provider is no longer a single point of failure. To be honest this isn't a problem we had anticipated.
I expect Surge will be provider agnostic sometime in the close future.
All they had to do was not use the NRA name and logo and call it something else like the MRA - 'Murican Rifle Association. Then it would have solely been a parody with no trademark infringement and no legal authority on the part of the real NRA.
That's not really the issue. If anything, that's for a court battle to decide. The issue is that DO took down Surge's entire company, without a DMCA complaint, and with misleading Surge (see the founder's comment).
We're not even aware of what type of complaint this was. Cease and desist? That's an angry bullshit letter that holds no legal weight. If DO buckled over something stupid like that, and mislead Surge as to the nature of notice and the window of response; well that's just a shitty provider. I wouldn't use them for anything if that's all true.
It's irresponsible for a service provider who outsources server management to a cloud company to not know and meet that vendors contractual requirements.
They were given notice, they failed to respond to that notice. Then they tried to make it seem like Digital Ocean was the bad guy.
If anybody looks bad here, it's Surge. They lost 37,999 websites because they couldn't resolve a problem with 1.
We told Digital Ocean that we were open on the issue and that we would rather take down the site than risk having all our customers disabled.
We asked for one of two things either 1) we be sent a takedown notice from the trademark holder OR 2) Digital Ocean be sent a takedown notice from the trademark holder
Digital Ocean took down our customers sites knowing full well that they didn't have to.
I appreciate your response, but you have done a disservice to your customer base. If you're going to risk the status of 37,999 websites on principal, you have a duty to notify those site owners of your predicament and of the risk you are placing them in.
You could have worked out a firm deadline for resolving this issue ahead of the shutdown.
You could have complied, then taken your business elsewhere or come to a meaningful resolution without risking 37,999 sites.
When coming to my conclusion, I read your side of the argument and I read Digital Ocean's. You chose not to tell the whole story in order to put Digital Ocean in a bad light. Bad decision after bad decision.
I don’t care if I agree or disagree with the content, there is simply too much power in mere “complaints” these days.
We MUST reach the point where every provider is incapable of knowing exactly what is hosted. In other words: you pay me money for service X, I provide X, and anything outside that simple agreement is out of scope.
Concurrently, we can address the likely reasons to want a “takedown” by working on new authenticity technologies: rather than trying to “remove X from the Internet”, make it so that any copy of X can be compared to a signed version. This would train people to scrutinize what they read, much like they sort of know to scrutinize non-padlocked web site forms.
For instance, given any snippet of text X, perhaps a browser has a way to determine if that matches any signed statements from the quoted person. And then, if you set up a smear web site claiming that I said X, anyone can use my official signing key to see if I actually published statements that match your text. If what you quote can be verified then the browser could indicate that the information appears to be accurate; otherwise, the browser could warn that the content is unverified. This concept could be extended to other forms of media as well.
In order for much of this to work, we need to be able to decentralize all encrypted content so providers can’t even easily guess who hosted something (like the firing squad: not every shooter has a bullet but somehow the deed is done). If the volume of traffic might also be a hint, then winnow and chaff the volume across providers to the point where you can’t even tell how much real content is present.
Obviously this anonymity would mean that we can no longer use sledgehammers to kill ants, for some definition of $UNDESIRABLE ants. To me, that is not only fine but downright crucial: put the burden/cost of proof back where it belongs. Or better still, let these people learn to do the digital equivalent of changing the channel: if you don’t like what a web site said then don’t visit that web site!
The DMCA complaint from the NRA looks legitimate, it's the decision from DigitalOcean to shut down the entire Surge network instead of just taking down the offending content that seems disproportionate.
I don't think you quite understand how DigitalOcean works. They provide you with an unmanaged Virtual Private Server (they call them "droplets"), which means that they don't reasonably have the means to go through Surge's "droplet" and remove this content themselves.
This left DigitalOcean with two options: leave the droplet up and potentially open themselves up to legal risk from the NRA and potentially Smith & Wesson as well; or turn off the whole droplet and let Surge sort this mess out.
We did not force Digital Oceans had by leaving them with only those two options.
a) We told Digital Ocean that if push comes to shove we will remove the domain not resist and risk having all our customers sites taken down. We explicitly stated this.
b) We had reason to believe it was still an open issue and being discussed. Including filing a counter claim (at their request).
We were fighting for due process, not fighting to prevent the takedown.
This is entirely Surge's fault. Surge buys and resells computing resources. If you're part of a Matryoshka doll of platform providers, your plan has to be to take down content at the first request of your provider and to put it back afterwards. The other option is to have your entire site get banned.
Both Google and Amazon have had situations where their entire worldwide properties have been shut down in various countries because of a single piece of content hosted on their platforms that they refused to take down.
Surge is expecting special treatment that not even Google and Amazon get by not taking the content down immediately and complaining about a larger shutdown. "Due Process" doesn't come into play at all.
Yes, if you don't want to get shut down, you have to take down content for each and every complaint, even the spurious ones, until you file some type of lawsuit against it. Because otherwise somebody else will do it for you.
It's part of being a middle-man, which is exactly what Surge is. There is no "due process" here. It's unreasonable for a service provider to ask for it.
We expect Digital Ocean to not remove content unless they have been given instruction to do so by the rights holder. I don't see that as special treatment.
The document in question is fantastic. I'm a lifetime NRA member living in canada, and I would _love_ to see if there was an increase in violent crimes by homeless people if they were armed.
I've been witness to a lot of homeless people in my city being killed (often for sport). Arming the homeless, as Tom Morello advertised, might be in our best interest as a society.
I not sure this purported program could include the homeless, for per the infamous Form 4473 (https://www.atf.gov/file/61446/download has a 2012 version), you've got to supply your "Current Resident Address", which cannot be a P.O. Box.
Which doesn't forbid possession, or legal purchase by private sale, just maybe doing it through an FFL as the mechanism necessarily is detailed in the web site.
196 comments
[ 346 ms ] story [ 5784 ms ] threadThere needs to be an easy, low-friction way for groups like The Yes Men to publish content such that no single actor can subsequently be pressured to remove it. Whether it's federated web, P2P, blockchain, onion routing, some other tech, or a combination of all of the above, this needs to be an increasing priority so that viable civic discourse can continue and blossom.
http://www.forbes.com/sites/ryanmac/2016/05/24/this-silicon-...
Freenet is also infamous for being mostly child porn, because it is the one place where you can't find the person who uploads it and you can't censor it either.
There isn't really a slipperly slope here. Very few forms of content are banned in this way, and the list is unanimously agreed upon and changes extremely infrequently. No one is trying to ban extreme-but-consensual-among-adults porn. No one is trying to ban extreme graphical violence. Etc. etc.
The only area where there is a problem, as this case illustrates, is with copyright and trademarks. The correct solution to this problem is to implement more sane copyright laws, internet or not.
We need an internet were speech isn't protected because the government blesses it and decides not to censor it. We need an internet where the government is wholly unable to censor it. Then we'll see what actual free speech looks like.
...and the matter of what speech is permissible is far from unanimous. The list of content that various governments deem taboo is enormous and growing. In the USA we have it much better than most places, but even here we have a very robust system of denial-of-service via DMCA and other legal means, including the trademark at issue here.
There's little doubt in most people's minds that the kinds of actions that The Yes Men execute are protected by the first amendment, yet here we are.
Is the correct solution to this problem to introduce a technical system where everyone can hide perfectly from the law if they spend some time and effort? Or is the correct solution to implement a system where the powers of the police are clearly and strictly limited and where the punishment for transgressions is severe?
What a strange conclusion to which to jump. While I happen to agree that police are a benefit to society, their placement as a tool of the state is something that I hope to see changed, maybe even in my lifetime.
Professional police are a very new thing in common law society; still in an experimental stage in my view. And with the emergence and eventual maturity of the internet, I (and I think many of us through the open source world) think that it's totally plausible that police-as-a-service-of-the-state will be judged to be more trouble than it's worth.
> Is the correct solution to this problem to introduce a technical system where everyone can hide perfectly from the law if they spend some time and effort?
We aren't talking about "hiding perfectly from the law," at least not if the law in question casts no shadow over speech based on its content. Being able to publish content without any possibility of destruction of that content seems, at least to me, an entirely orthogonal venture to that of exacting violence or theft of some kind (ie, the more natural implications of the law).
If the state is made unable, in a physical and technological sense, to reach out and eliminate particular bytes-on-the-wire deemed illegitimate, I assert that the law will grow stronger, not weaker, precisely because we won't have to concern ourselves in the political realm about what to and not to censor.
https://wiki.freenetproject.org/Security_summary
https://wiki.freenetproject.org/Opennet_attacks
It also gets almost no scrutiny compared to Tor, which got shredded with scrutiny. I imagine smart, well-funded attackers might find something. I wouldn't trust it as the only layer of security.
I get that it isn't for everyone - you have to know what you are doing and you have to have the time (at least initially) to do it - but if you can do it, you avoid all manner of third party unreliability.
The trend to blindly rely on tens or even hundreds of third parties for stuff like web sites is a direction I'm personally not comfortable with. Just one issue can take everything down.
The lower level your dependency (like an ISP vs a hosting company), the harder it is, intentionally or accidentally, to be affected like this.
I wrote an old rambling blog post here -> https://blog.bytemark.co.uk/2010/02/07/adventures-in-libel-o... but in summary, hosting companies aren't as liable for their customers' content as most solicitors would like you to believe!
Since 2010 we demand very specific standards for legal complaints (more than a typical "scare letter"), or a court order - and most complainants drop away before actually doing things properly. Typical exchange might be:
them: "Huge sections of this site are defamatory to my client! I demand under enormous penalty that you take the whole thing down"
us: "We've not read it, do you want to tell us where the defamatory statements are?"
them: "It's blazingly obvious, and we'll take you to court if you don't comply"
us: "We don't know your client, or their reputation, and we don't read our customers sites, so you'll need to tell us about these defamatory statements in more detail."
Very occasionally the solicitors _will_ do the work, and we're on notice at that point, but we then talk to the customer, explain the situation and ask them take down just the statements we've been notified about.
The other strategy that works very often is to ask both parties if we can put them and our customer in touch, then let them sort it out.
None of this is a free-speech thing, just the climate we found ourselves doing business in. We've always found it perfectly possible to respond to legal complaints across thousands of customers without pulling the plug in a panic.
Pretty sure the NRA knows who Barbara Streisand is. There were all upset about her movie, The Long Island Incident. Maybe they are not as familiar with her Effect.
To the anonymous downvoters, note that it is illegal (and not just a civil issue) to falsify this kind of statement in some states. I'm not sure what people are disagreeing with since nobody has left a dissenting comment, so I'll just ask this: if the target here was a parody video encouraging mothers to abort 104-week-old fetuses that claimed to be "paid for by Planned Parenthood" would you have the same opinion? If not I think you're letting your opinion on guns get in the way.
Can you say more about this--can you give some example state laws?
Note that Google apparently is comfortable leaving the video up on youtube with the "Paid for in part by the NRA" notice intact. https://www.youtube.com/watch?v=_8punyPP-bs
This seems to be the key issue. It seems unlikely that a prosecutor could achieve a conviction under these laws, given the specific meaning of some of the terms used (as defined in §251.001). I haven't seen the video, but it sounds like it was a general parody of the NRA?
At any rate, a prosecutor would have to prove that:
1. The creator of the video has specific intent to harm a particular candidate, or otherwise influence the election result.
2. The latter part of #1 (influence result) seems to be made irrelevant by the definition of 'political advertisement': "...means a communication supporting or opposing a candidate for nomination or election to a public office or office of a political party, a political party, a public officer" [§251.001 (16)]
1. The Yes Men is assumedly not paying to promote this video (so it's not "an ad"), 2. The message is not electioneering.
We're used to seeing, "paid for by" and "I approved this..." messaging in electioneering ads that are regulated by the FEC. The NRA, a 501(c)(4), has to play by different rules to keep its status.
IANAL, but I'd assume that the NRA would need to argue that the video puts their 501(c)(4) status at risk to warrant legal action outside of just playing the copyright/damages card.
But it also has a PAC, the Political Victory Fund, which is quite able to do the usual stuff, here's their first TV ad for this election they just cut, I've set the time to the last 5 seconds where they claim it per the law: https://youtu.be/SIl20jItjHY?t=25
While true, the Yes Men have a long track record with this type of parody. On this basis, I assume that the legal and monetary repercussions have been negligible.
A list of their past targets:
https://en.wikipedia.org/wiki/The_Yes_MenFor DigitalOcean to intervene here seems strange.
That is partially correct, but the host (DO), still needs to ensure the content was removed. If they pass it on and the account owner ignores it, DO could potentially be liable.
It's possible they ignored this type of thing or that they just didn't want the mess...
I think it's better to work with a smaller company in these kind of instances. Larger companies like Amazon are going to just do whatever it takes to make the complaint go away. They don't want trouble.
After the content is taken down, the content owner can file a counter-notice (basically saying the complaint is incorrect). And then if no lawsuit is filed by the complainant in a certain number of days, the content owner can put the content back online.
For the record, I'm no fan of the DMCA because it's rampant with abuse and trivial to forge notices. It is too easy to silence speech with the DMCA, at least temporarily, and the repercussions for sending false DMCA notices are a joke. Plus, anyone can send a DMCA, even foreign entities, which makes going after the complainant for damages for false reports not even worth the trouble.
Only if the site owner ignores the notice should the VPS be turned off entirely.
"We received notice on behalf of a trademark holder that a customer of DigitalOcean was hosting infringing content on our network. DigitalOcean immediately notified our customer of the infringement, and the customer was given a five day period to resolve the issue. The infringing content was not removed within the specified period even though several notifications were issued. Per DigitalOcean’s terms of service, a final reminder was issued to our customer and, when no action was taken, access to the content was disabled. The infringing content was subsequently removed by the customer and all services were restored in less than two hours."
5 days seems to be ample amount of time.
Clearly DO choked and hurt free speech in the process.
Does it? Please link to the legislation describing the specific complaint made.
Taking down the content is the easiest way not to end up as co-defendants with the Yes Men.
(This is specific enough advice I feel I must say that I am not a lawyer, just a knowledge layperson)
Libel / slander don't require a take down, but also don't provide any protection for the hosting company.
If this goes to court then the Yes Men won't be able to pay for the NRAs legal fees. Which means that the lawyers will be tempted to go after DO to get paid.
DO is a low cost hosting company. You can't expect them to ride or die.
Fair use is not an automatic thing, I'm not so confident this web site (no opinion on the video) would be protected by it, especially since, as I note elsewhere in this sub-thread, such a project is not entirely beyond the realm of possibility.
There's nothing saying you have to obey a random cease-and-desist letter, but there's also nothing saying you can't obey it. If DO prefers to take action for letters like these, that's their right. And if they give their customer warning and a way to respond, I can't even say it would make me uncomfortable to be their customer.
The video also said it was "Paid for in part by the National Rifle Association of America with additional support from Smith & Wesson Holding Corporation.", which is a blatant lie. They were hosting fraudulent content, and DO was right to take them down.
*Except when it involves a lie or violation of a trademark.
You really think that these laws have never been challenged before?
Fraud has been illegal for as long as the US has existed. It's not protected. If it was protected as free speech, fraud laws would have been overturned sometime in the last 225 years.
Further reading:
https://en.wikipedia.org/wiki/False_statements_of_fact
https://en.wikipedia.org/wiki/United_States_free_speech_exce...
In Dred Scott v. Sandford the court ruled that the bill of rights does not apply to African Americans. Are you a supporter of that decision or did you mistype? Where does it say that the court gets to supersede the constitution? I think you will find that it does not.
Furthermore there are limits to free speech in the US. For example: obscenity, treats of violence, military secrets, etc.
Australia has no bill of rights, yet judges have upheld individual right to protests (Victoria has a Charter of Rights, but that's it). China has free speech in their constitution. Germany has free speech, unless it has anything to do with the original Nazi party symbols.
This is simply wrong. Here's a link for you:
https://en.wikipedia.org/wiki/Fair_use_(U.S._trademark_law)
The content could certainly be infringing and there's little safe harbour for an ISP.
It supports the idea that DO is not responsible for wholesale, nonspecific "content" - there must be details regarding which pages are infringing.
It's great that DO gave them 5 days, but as a person who's used DO a lot for projects, I'm really disappointed by their lack of sophistication in this area.
To pull the plug on thousands of pages and say "five days is enough!" isn't enough.
The problem is that there is no punishment for take-down notices filed in bad faith.
But let's look at what trade-mark law is all about: it's about avoiding confusion. Do you honestly believe that there is a ground for consumer confusion here, that consumers would believe that the NRA would actually put out these statements? Given the context of the publication as well as the content of the material itself?
Or could it be that the NRA figured out a way to shut down a viewpoint that clashes with their own through abuse of the law?
http://www.satirewire.com/news/0106/dream.shtml
So It was not Radio Silence but 5 full days notice in advance with multiple notices. Thank you for updating us about the other side of the story.
That's the issue when you build a service hosted on a service (DO, AWS, Rackspace). You could have thousands of customers, but if you miss one complaint about one customer, the whole thing goes boom. It's more of an argument for content creators hosting on the platform controlled by the data centre owners.
For Surge, and other large hosting platforms, it's an argument for them hosting their own dedicated servers in a data centre (which of course, raises the barrier to entry and costs for these types of solutions).
Most hosting providers I have dealt with expect abuse resolution within 24 hours, five days is a very long time for abuse issues to be handled.
5 days had elapsed from the time the original takedown request came in until our network was disabled but there was plenty of correspondence in between and when we had last spoke to Digital Ocean it was still an open issue.
We provide more specifics on timeline here https://news.ycombinator.com/item?id=12010521
No surprise there, 5 days is far longer than most providers will give you. You're lucky to get 24-48 hours to take down infringing content at most DCs in my experience.
Did the other guys even make an effort to respond?
5 days total had elapsed from the original request which we responded to within 22 minutes.
https://news.ycombinator.com/item?id=12010521
It's pretty understandable for DO to not want to get involved in a legal dispute like that, buy your own IP range if you need to avoid this and take it to court yourself. You took on a huge risk yourself by allowing the content to stay on your network after you got the notice and may have implicated yourself should a trial be underway.
Seems insane that you let your entire service get nuked over one customer. And to publicly call this "radio silence"? They literally gave you a warning with an exact timeframe.
We would have had we been sent a notice from the trademark holder but we weren't. Or even had DO been sent the request from the rights holder. This is the due-process we are asking for.
> It's pretty understandable for DO to not want to get involved in a legal dispute like that
To our knowledge Digital Ocean was at no time directed by the trademark owner to remove the content. This was DO acting on their own.
> They literally gave you a warning with an exact timeframe.
This is an exaggeration.
- We responded within 22 minutes of the original complaint. - The complaint did not request takedown. - We were not given timeline nor consequences until 24h before takedown. - When given 24h notice We immediately asked for a call which Digital Ocean wasn't available for until the DAY of the takedown. - We spoke on the phone with DO hours prior to the takedown which at their request was left with an action item to fill out a counterclaim. - Digital Ocean withdrew their request for a counterclaim (unknowingly to us) and disabled our network 39 minutes later.
So in truth we had an email we hadn't received yet that gave us only 39min to comply with. We were warned 24h prior but DO wasn't available to discuss until only hours before the takedown and the last correspondence with them they requested a counterclaim to be filed. Our request for counterclaim documents was the last message they received from us before shutting us off.
> Seems insane that you let your entire service get nuked over one customer. And to publicly call this "radio silence"? They literally gave you a warning with an exact timeframe.
We made it clear to them on the phone that we would rather take down the content then have all our customers taken offline. Digital Ocean disabled our network knowing full well it wasn't necessary to have the parody site removed and gave us only a 39 minute window to comply which we did not see in time.
Digital Ocean went completely dark for an hour after disabling the network and ignored our attempts to reach out.
>According to a series of tweets from the Surge twitter account, the NRA sent a legal complaint to Cloudflare, which then forwarded it to Digitalocean. Surge responded “within 22 minutes.” Digitalocean asked Surge to provide counterclaim documents. Some minutes later, Digitalocean shut down Surge.sh. According to Surge, 38,000 sites became unavailable.
1. Digital Ocean did NOT receive a complaint on behalf the trademark holder. CloudFlare was the company sent a complaint on behalf of the trademark holder, which was forwarded to DigitalOcean which was then forwarded to surge.sh. To our knowledge the NRA isn't even aware of DigitalOceans or surge.sh existence.
2. There was no known trademark infringement happening on surge.sh. There was a complaint sent to CloudFlare that such a thing was happening. Digital Ocean acted as if the alleged infringer was guilty even though there is nothing other than the complaint itself to suggest this is true.
3. Digital Ocean was aware that we were willing to remove the content with proper due process. We at surge do not have editorial control of the sites published to surge.sh therefore we wish to provide legal justification to our customers when their content is removed. This would provide our customer with a means of recourse if the takedown is in error.
4. All we asked for was due process and this was something promised to use in the past by Digital Ocean. https://medium.com/surge-sh/more-on-january-7th-downtime-the...
5. We spoke with DigitalOcean on the phone at 11:02am where things were they said we needed to file a counterclaim with the NRA. We thought this was odd since the NRA doesn't know we exist however we were willing to do it anyway.
Our last message to Digital Ocean was at 12:05pm after Digital Ocean sent us the following case study http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=...
``` Thanks for sending this over. I'll get through this as soon as possible.
Do you mind sending over the counter-claim you are asking us to fill out?
thanks, Brock ```
They responded at 12:47pm with the following...
``` I’ve shared the outcome of our phone call with our Trust and Safety team. Since this is not a DMCA complaint, a counterclaim does not apply here, contrary to my misunderstanding over the phone. I apologize for the incorrect information. [...] You have until 1:26pm EDT, a bit under an hour from now, to remove the content. Otherwise, we will need to disable networking to this Droplet. ```
We unfortunately didn't see that message until it was too late and at 1:26pm our network access was disabled followed by radio silence from Digital Ocean for the following hour.
So Digital Ocean communication to us went as such..
11:02am - "you need to remove the content or fill out a counter claim" 12:47pm - "we were wrong, no counter claim can be filed and you now have 39minutes to remove the content or we are disabling the network"
Since Digital Ocean realized they misrepresented themselves on the phone we would have preferred if Digital Ocean had picked the phone back up rather than shut us down with less than an hour warning.
I'm willing to clarify to avoid further to confusion if you can provide more detail.
It's frustrating and borderline absurd to me that hosting platforms get involved in dispute processes like this that properly should be handled by a court. What exactly is Surge's recourse here? Sue DigitalOcean to have their content put back up? That's ridiculous.
The DMCA provides a clear process: one party provides a claim asserting that some content infringes copyright. The owner can then provide a counter-claim asserting that it's not infringing. If they do, the content stays up, and if they don't, the content goes down. Providing a counter-claim, which requires asserting under penalty of perjury one's belief that the content is non-infringing, is the site owner's recourse to an unreasonable takedown request. Simple and clear. In this case, with no DMCA process, DigitalOcean is taking Surge down without any recourse for Surge to keep the content up in the event that the takedown request is unreasonable.
I don't know what the standards are for satire to be fair use. It wasn't very clear that the video was satire, but the nature of satire is that it's not always obvious to everyone. DigitalOcean should not have intervened in a trademark dispute between two different companies outside the DMCA. Or if they're going to make up a process, they should have at least followed the protocol DMCA established for Surge to assert non-infringement.
Surge should have been more transparent here. It seems like they were trying to obscure the actual timeline. I'd like to see Surge publish a full log of their communication with DigitalOcean and CloudFlare and related parties in the interest of full transparency, as validation that this is what has transpired. But on the other hand, Surge never should have been shut down in the first place, regardless of timeline. There was no counter-claim for Surge to file - what exactly were they supposed to do?
[1] OK fine, technically it's not extra-judicially because I'm sure DO's terms of service say they can do whatever they want. Nevertheless, it feels extra-judicial from a customer's point of view. Companies shouldn't get involved in arbitrating disputes between other companies - they are not a court and not competent to handle such disputes; they should simply participate in court processes as obligated by law.
> I don't know what the standards are for satire to be fair use. It wasn't very clear that the video was satire, but the nature of satire is that it's not always obvious to everyone. DigitalOcean should not have intervened in a trademark dispute between two different companies outside the DMCA.
The video itself doesn't have much of a leg to stand on. I personally think the approach of the Yes Men is brilliant, but they're obviously operating in a grey area where they can expect censorship via the legal system.
BUT that is irrelevant - it still is not DO's job to act as a judge and skip requiring a bona fide court order, especially when they're clearly dealing with a downstream service provider. If they want to be taken seriously as a platform provider, then they really need to apologize for this incident and fix their policies.
(Also what a horrible title. I guess the NRA stokes more rage with Vice's audience, but Digital Ocean seems to be primary party deserving blame here)
On June 23rd, we received notice from the NRA's counsel that sharethesafety.org was infringing NRA’s trademarks. The NRA demanded that we remedy the problem by removing the material. In response, we followed our standard procedures for trademark infringement notices and informed the customer immediately of the NRA’s demands. We provided more than 5 days for the customer to respond to or resolve the issue. We also spoke to the customer on several occasions to inform them that we intended to take action on the trademark claim. They chose not to remove the violating material. Accordingly, our Trust & Safety team restricted network access to their Droplet, which caused an outage to all of their user’s websites hosted on that Droplet. In less than 2 hours of the outage, the customer was able to address the trademark notice, and network access was immediately restored.
DigitalOcean followed procedures that help protect us from having to resolve what can be complicated disputes between third party rights holders and our customers regarding IP issues. In this case we should have given greater care to the customer’s voice and their right to engage in parody. In retrospect, we believe that the website identified in the NRA’s takedown notice was not a trademark infringement but was instead protected by the First Amendment. We at DigitalOcean champion freedom of speech and the free and open web.
Going forward, we will be working closely with our legal counsel to review our Trust & Safety procedures so we can make better decisions. We are committed to providing our customers with the best level of service and supporting their rights and freedoms. That is our responsibility as an infrastructure service provider and one that I take very seriously.
Sincerely,
Ben Uretsky Co-Founder & CEO
Ample amount of time for what? The underlying problem is that DigitalOcean should not be arbitrating trademark disputes between companies. They're not competent to decide who is right and who is wrong. They should not suspend someone's content purely because someone claims to be the owner of a trademark, and claims some content is infringing. (Unless we're talking about obvious abuse, intentional malice, etc.)
What exactly is the recourse for the site owner if the claims are unreasonable or outright wrong? With the DMCA, there is a clear process: the site owner can submit a counter-claim, and the content stays up. What should properly happen at that point is the rights-owner can take the site-owner to court to pursue their claim. Instead, DigitalOcean acted as judge, jury, and executioner on behalf of the NRA, taking down content outside any established DMCA-like process, and without leaving Surge any recourse to keep it up.
https://cyber.law.harvard.edu/metaschool/fisher/domain/tm.ht...
We detached this subthread from https://news.ycombinator.com/item?id=12009799 and marked it off-topic.
" A NearlyFreeSpeech.NET member site is defaming me or otherwise injuring me civilly, or is infringing my non-copyright intellectual property rights.
Please forward a certified copy of your legal finding from a court of competent jurisdiction to our correspondence address. If you have not yet obtained such a finding, a preliminary injunction or court order is typically also sufficient.
If you are not able to obtain the above, you will need to work directly with the site operator to resolve your differences. We will have to fall back on our members' contractual assertion that the content they upload is legitimate and therefore we will not be able to get involved."
(Not affiliated in any way except as a happy customer. I use them for cheap hosting for some domains I control.)
“Paid for in part by the National Rifle Association of America with additional support from Smith & Wesson Holding Corporation." [1]
Conversely, I could imagine a parody video created by extreme conservatives mocking Planned Parenthood by happily and cheerfully promoting "baby murder" and "baby parts harvesting for the good of medical science", and quoting the text "This advertisement sponsored and paid for by Planned Parenthood."
Independent of your political views, claiming false official sponsorship of a parody is wrong. Slanderous impersonation of a person or organization is not inherently protected by freedom of speech.
[1] https://www.youtube.com/watch?v=_8punyPP-bs
For example, here's the law in Texas:
> A person commits an offense if, with intent to injure a candidate or influence the result of an election, the person enters into a contract or other agreement to print, publish, or broadcast political advertising that purports to emanate from a source other than its true source.
Source: http://www.statutes.legis.state.tx.us/Docs/EL/htm/EL.255.htm
Or as Popehat put it,
The First Amendment Protects Satire Even When Reckless, Stupid, Or Ideology-Addled People Fall For It
https://popehat.com/2013/11/26/the-first-amendment-protects-...
Also, assume nothing about my political views. I'm not an NRA member, but I have spent a couple of nice Saturdays shooting skeet with my son and his Boy Scout troop. My position would be exactly the same if this were a Planned Parenthood parody or if it spoofed any other politics-heavy organization.
From the DC Circuit of the US Court of Appeals;
But it is the nature of satire that not everyone “gets it” immediately. For example, when Daniel Defoe first published The Shortest Way with the Dissenters, an anonymous satirical pamphlet against religious persecution, it was initially welcomed by the church establishment Defoe sought to ridicule. See JAMES SUTHERLAND,ENGLISH SATIRE 83–84 (1958). Similarly, Benjamin Franklin’s “Speech of Miss Polly Baker,” a fictitious news story mocking New England’s harsh treatment of unwed mothers, was widely republished in both England and the United States as actual news. See MAX HALL, BENJAMIN FRANKLIN & POLLY BAKER:THE HISTORY OF A LITERARY DECEPTION 33–35, 87–88 (1960).
Or a little more entertainingly written:
The First Amendment Protects Satire Even When Reckless, Stupid, Or Ideology-Addled People Fall For It
(https://popehat.com/2013/11/26/the-first-amendment-protects-...)
Satire Is Satire Even When People Fall For It, Mr. Jarvis
(https://popehat.com/2016/04/27/satire-is-satire-even-when-pe...)
The Courts have found that Satire and Parody have extremely broad First Amendment protections -- for good reason.
I haven't seen the video yet (at work), I'd assume it's very tongue-in-cheek, but the video was never taken down. But my first impression of the website, without knowing it is parody, is that this is a real project.
It even links to a "press release" on nrapress.org, which does not seem to be a real NRA website. Though all the links on nrapress.org point to nra.org or nraila.org, which are official.
Your links agree with the parent comment.
From the first:
> (2) the test for whether something is satire protected by the First Amendment, rather than a false assertion of fact that may be defamatory, is whether a reasonable person would take it as an assertion of fact given the entire context.
From the second
> In deciding whether something could reasonably be taken as an assertion of fact rather than satire, courts look to what an audience familiar with the publication and players would understand. Said the Court:
> The article’s primary intended audience — that is, readers of “The Politics Blog” — would have been familiar with Esquire’s history of publishing satirical stories, with recent topics ranging from Osama Bin Laden’s television-watching habits to “Sex Tips from Donald Rumsfeld.”
and
> Could there be satire that is unethical because it is genuinely deceptive? I suppose so. (Hopefully not here.) But I think it would have to be a genuine attempt to deceive by a publication not known for satire
https://www.eff.org/cases/chamber-commerce-v-servin
I generally agree with the EFF, but not in this case. Just my personal opinion, but I can see how the text of the fake press releases are parody, but not the website. The quality of the site obscures the parody. I think the Hillary Clinton article on The Onion linked above is funny. I wouldn't find it funny if it were hosted on h-clinton2016.com
The main claims were basically that the chamber of commerce parody is not a substitute for the real thing, and the parody is non-commercial. This isn't entirely the same case. This is an entire landing page made to look like a new initiative. Having a "Store coming soon" advertisements and sign up form also make this different.
https://www.eff.org/cases/chamber-commerce-v-servin
I think they're pretty trustworthy as far as free-speech advocacy goes. There wasn't a ruling but eventually the Chamber of Commerce dropped the suit.
When you watch SNL or read The Onion and Mad Magazine, the vast majority of people understand that they're watching/reading satire.
Now when there is a full blown website and youtube video claiming association with a company that is whole different story. How do I clearly know that the company did not actually pay for it? Am I just suppose to guess because there is no way the company would do that? That isn't how it works.
Well yes actually, it is. But you will notice that this was posted on the Yes Men youtube channel, which is well known at this point, so you don't even have to.
Still, the answer to "am I supposed to guess" is "yes". That's the point of parody.
No reasonable person watching SNL would see the Jim Carrey Lincoln MKC commercials and believe that Allstate and Lincoln were really airing a joint commercial in which Jim Carrey runs over Keenan Thompson in his Lincoln. But if they started airing those outside of SNL during regular commercial breaks things would probably be different.
It's the same thing with that Onion article. Anyone familiar with The Onion knows it's parody, and anyone not familiar will find notice pretty quickly. The article also doesn't make any false assertions or libelous claims against Clinton. It's just using her image to parody the idea of her pandering to an audience.
Also, less of a purely legal reason but, you only get in trouble if the other person doesn't like it. Brands are usually very happy to have their stuff parodied in a lighthearted way. Weird Al always asks permission before parodying a song (even though legally he does not need to), and almost never gets a no. More often than not, artists are incredibly excited to be parodied by Weird Al. To use the SNL Lincoln example again, SNL's fake advertisements had many times more views online than Lincoln's advertisements. All for free (for Lincoln)! They're getting people to watch for a minute or two a video all about the new Lincoln car, and they're not making fun of the vehicle or the company, just the strange acting in their real commercials. Jim Carrey never says "the acceleration in this thing sucks" or "the windows are too tinted, so I can't pay attention to the road", he just goes off on weird existential musings while twiddling his fingers.
When a corporate or person's name/trademark is used explicitly and intentionally, freedom of speech does not automatically inherently protect the publication or media. In such a case, damages (if any) are resolved on a case-by-case basis, generally depending on the content and how indistinguishable it is from the real thing (and whether it's potentially damaging).
Saturday Night Live and The Onion are protected because both are widely known and clearly labeled as comedy/satire content. Neither is the case for this video, and as a result it's extremely likely they would fail at defending a lawsuit from the NRA if they did decide to prosecute.
P.S. My post assumed nothing about anyone's political views. The planned parenthood example was meant to provide balance via an analogical example from the other stereotypical political side.
I'd assume they knew what they were doing, as these sorts of concerns are often on the mind of satirists. They should have included a disclaimer or something making it clear that the video was a parody.
It's reasonable to think they may have been counting on short attention spans and ignorance to spread false rumors about NRA positions.
The NRA's stance is very much exaggerated, e.g. every piece of Federal anti-gun legislation passed with their approval until the 1994 AW ban, and since the passage of the Brady Bill the year before, which eventually set up the National Instant Criminal Background Check System (NICS), their baby, you might say, they've supported and are right now supporting legislation that uses the NICS to prevent people from buying guns from FFLs (gun stores).
To cover a bit more of their relationship with the 1st Amendment (which after looking at the Wayback Machine copies of the website, I'm not so sure is implicated, e.g. it does not come off as satire unless you know enough about the NRA's stolid style), they fiercely opposed McCain-Feingold, since it banned a lot of their political speech before elections (this was resolved in their favor in the Citizens United case).
https://www.youtube.com/watch?v=C3s_pJw7OAU
Maybe because:
> Saturday Night Live has been running parody advertising purporting to originate from real organizations for decades.
If you took a commercial parody from SNL and played it unaltered during prime time with no introduction, you would probably get in trouble even though the content hasn't changed.
Are you a lawyer?
This is technically correct, but you're putting the cart before the horse. By definition, "slander" is basically an act of false attribution (or impersonation) that is clearly without merit (i.e. does not promote legitimate discourse) and causes egregious harm (to specific individuals). The Yes Men's video is clearly satire, and as such, is just as protected of a form of free speech in the U.S. as donning a mask of Trump or Clinton, standing atop a milk crate in Union Square, and "impersonating" those figures.
Of course, Cloudfare apparently chose not to offer any "back" to the Yes Men once they got the nasty note from the NRA's legal people -- but that was just a business decision; it has no bearing on whether the content they were hosting was legally protected or not.
Whether it's a failover strategy, negotiating a different business relationship with Digital Ocean, or whatever. There is a lot more they could be doing to stay online until they (Surge) are the ones choosing to pull the plug on a user's site (or are ordered by the courts to do so).
Steps have already been taken to to get us to the point where a provider is no longer a single point of failure. To be honest this isn't a problem we had anticipated.
I expect Surge will be provider agnostic sometime in the close future.
We're not even aware of what type of complaint this was. Cease and desist? That's an angry bullshit letter that holds no legal weight. If DO buckled over something stupid like that, and mislead Surge as to the nature of notice and the window of response; well that's just a shitty provider. I wouldn't use them for anything if that's all true.
[0] - http://www.snopes.com/share-the-safety-nra/
They were given notice, they failed to respond to that notice. Then they tried to make it seem like Digital Ocean was the bad guy.
If anybody looks bad here, it's Surge. They lost 37,999 websites because they couldn't resolve a problem with 1.
We told Digital Ocean that we were open on the issue and that we would rather take down the site than risk having all our customers disabled.
We asked for one of two things either 1) we be sent a takedown notice from the trademark holder OR 2) Digital Ocean be sent a takedown notice from the trademark holder
Digital Ocean took down our customers sites knowing full well that they didn't have to.
You could have worked out a firm deadline for resolving this issue ahead of the shutdown.
You could have complied, then taken your business elsewhere or come to a meaningful resolution without risking 37,999 sites.
When coming to my conclusion, I read your side of the argument and I read Digital Ocean's. You chose not to tell the whole story in order to put Digital Ocean in a bad light. Bad decision after bad decision.
We MUST reach the point where every provider is incapable of knowing exactly what is hosted. In other words: you pay me money for service X, I provide X, and anything outside that simple agreement is out of scope.
Concurrently, we can address the likely reasons to want a “takedown” by working on new authenticity technologies: rather than trying to “remove X from the Internet”, make it so that any copy of X can be compared to a signed version. This would train people to scrutinize what they read, much like they sort of know to scrutinize non-padlocked web site forms.
For instance, given any snippet of text X, perhaps a browser has a way to determine if that matches any signed statements from the quoted person. And then, if you set up a smear web site claiming that I said X, anyone can use my official signing key to see if I actually published statements that match your text. If what you quote can be verified then the browser could indicate that the information appears to be accurate; otherwise, the browser could warn that the content is unverified. This concept could be extended to other forms of media as well.
In order for much of this to work, we need to be able to decentralize all encrypted content so providers can’t even easily guess who hosted something (like the firing squad: not every shooter has a bullet but somehow the deed is done). If the volume of traffic might also be a hint, then winnow and chaff the volume across providers to the point where you can’t even tell how much real content is present.
Obviously this anonymity would mean that we can no longer use sledgehammers to kill ants, for some definition of $UNDESIRABLE ants. To me, that is not only fine but downright crucial: put the burden/cost of proof back where it belongs. Or better still, let these people learn to do the digital equivalent of changing the channel: if you don’t like what a web site said then don’t visit that web site!
Seems DO did everything by the book?
This left DigitalOcean with two options: leave the droplet up and potentially open themselves up to legal risk from the NRA and potentially Smith & Wesson as well; or turn off the whole droplet and let Surge sort this mess out.
a) We told Digital Ocean that if push comes to shove we will remove the domain not resist and risk having all our customers sites taken down. We explicitly stated this.
b) We had reason to believe it was still an open issue and being discussed. Including filing a counter claim (at their request).
We were fighting for due process, not fighting to prevent the takedown.
Both Google and Amazon have had situations where their entire worldwide properties have been shut down in various countries because of a single piece of content hosted on their platforms that they refused to take down.
Surge is expecting special treatment that not even Google and Amazon get by not taking the content down immediately and complaining about a larger shutdown. "Due Process" doesn't come into play at all.
It's part of being a middle-man, which is exactly what Surge is. There is no "due process" here. It's unreasonable for a service provider to ask for it.
I've been witness to a lot of homeless people in my city being killed (often for sport). Arming the homeless, as Tom Morello advertised, might be in our best interest as a society.
Which doesn't forbid possession, or legal purchase by private sale, just maybe doing it through an FFL as the mechanism necessarily is detailed in the web site.