[citricsquid]

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.

[sintaxi]

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?

[the_trapper]

No offense, but your original statement on this matter was very misleading to say the least.

[sintaxi]

If that is true that is entirely unintentional and Im sorry. There is a lot going on all at once for us right now.

I'm willing to clarify to avoid further to confusion if you can provide more detail.

[the_trapper]

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.

[Pyxl101]

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.

[mindslight]

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)