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
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.