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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. |
> 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)