> The infringing content was not removed within the specified period even though several notifications were issued.
You don't have to remove content under the DMCA, you can also file a counter-notice which gets the content host off the hook and then the matter goes to court[0].
But that also assumes DMCA which, if memory serves, was not in play here. It was a trademark complaint, which DigitalOcean has no responsibility to resolve.
Ultimately DigitalOcean's response, even with that statement, seems at odds with how the law is actually written. The other party also claimed they did respond to DigitalOcean, they just never removed the legal parody material which is their right.
DigitalOcean's understanding of the NRA's rights is more expansive than the law itself. Effectively their trademark policy is to automatically side with the trademark holder, irrespective of fair use[1] (see page 9+).
[0] https://en.wikipedia.org/wiki/Digital_Millennium_Copyright_A...
[1] https://apps.americanbar.org/litigation/committees/intellect...
Did you miss that? It's not infringement if it falls under fair use. They were not following their TOS because they did not confirm the content was infringing a copyright
i'm under the impression that "fair use" is a defense and/or judge's assessment, rather than something "civilians" can factually declare.
The vast majority will not unless you are a large customer with your own legal staff on retainer to provide the appropriate legalese/notices/etc.
That said, the original reporting on this and the statement from DigitalOcean are at odds (Motherboard's update with DO's statement), and since I haven't verified either, I'll retract any specific support for either side of this particular instance.
That requires money for a lawyer to evaluate it. If the customer has their own legal staff that does this and relays that opinion to the host, as well as being large enough to cover any legal costs DO might incur, DO would be fine with it.
You are basically saying you are entitled to using DO's legal staff and financial resources in addition to the hosting you've paid for.
No, what I'm saying is that DO must already do this to some degree if they are handling requests, as otherwise I could send letters claiming trademark/copyright infringement for any number of things and get many customers shut down. If they have internal guidelines for what they do in cases when trademark/copyright infringement, I expect they follow those. I also expect that those policies do the minimum legally required of them. That's not because it's cheaper and garners good will from customers (it does), but because to do otherwise is taking sides in a legal situation without being an appointed arbiter of the law. Not only is this excessive, but it's anti-customer.
If DO is doing what they think they must by law, I have no problem with that, as long as that is clearly explained. In the case we were previously talking about, the statement from DO (at the motherboard article) is somewhat ambiguous as to why they did what they did. 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. Was the take down required by law, or was DO overly aggressive in handling it? Without a statement as to why, (and I think that given some people's assertion that they went beyond what was legally required of them), their reasoning is somewhat ambiguous, and harder to call into question. If they clearly define they enforced their TOS based on what they believe is a legally required of them, then we can look at the law and their actions and evaluate whether that's true, and if it's not, DO can learn from the experience or be called out as a company that is capricious in their execution of the law.
What it boils down to is that "We received a complaint infringement. We enforced our TOS and shut down access to the content in question." leaves a lot open for assumption. I would be much happier if it was "We received a complaint infringement and as we believe is legally required of us we enforced our TOS and shut down access to the content in question." It's a small change, but it allows customers (and critics) a much clearer view on how DO handles situations like this, and allows for the public to make an informed choice on whether they think DO was correct in their actions (whether they really were legally required to do so). It's subtle, but I think it's a very, very important distinction.
It comes down to them making a risk assessment on whether they're more likely to incur cost from taking down versus ignoring. In some cases the balancing act is due to the nature of the outcomes: on the one side if you do nothing it's unlikely (low probability) but you could land-up in court and incur millions, versus on the other side refunding a customer their annual subscription and taking a reputation hit - it's the asteroid crash problem. It's notable that they asked their customer for a response and didn't get (what they consider) a satisfactory one. Who knows the specifics in this situation, but they won't have done it just on a whim!
https://news.ycombinator.com/item?id=12010521
"""
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"
"""
Then in the comments:
"""
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.
"""
Believe who you will.
Edit: added 2nd quote from comments
As evident in the comments beneath your link, they had been in contact with DO for ~5 days at that point. Your quote leaves out important information and is misleading at best
"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."