8 ms·

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 l

by hristov 10y ago

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.

Mithaldu 10y ago
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.
- vitd 10y ago
  The article points out that this was likely not a DMCA notice.
  - Mithaldu 10y ago
    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".
- mgleason_3 10y ago
  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.
  - Mithaldu 10y ago
    > Unlike a DCMA, the compliant does not require DO to take down the web site. Does it? Please link to the legislation describing the specific complaint made.
    - gpm 10y ago
      That's not how law works, everything is permitted until it's forbidden. So given the absence of legislation they do not have to.
      - Mithaldu 10y ago
        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?
        gpm 10y ago
        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.
      - wmil 10y ago
        But Digital Ocean could be partly accountable in a libel / slander suit if they don't take action after being notified. Taking down the content is the easiest way not to end up as co-defendants with the Yes Men.
        gpm 10y ago
        No, they could not, that's prevented by this law: https://www.eff.org/issues/bloggers/legal/liability/230 https://www.eff.org/issues/bloggers/legal/liability/230 (This is specific enough advice I feel I must say that I am not a lawyer, just a knowledge layperson)
  - wmil 10y ago
    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.
hga 10y ago
Looking at the copies stored on the Wayback Machine: https://web.archive.org/web/*/http://www.ShareTheSafety.org https://web.archive.org/web/*/http://www.ShareTheSafety.org they don't immediately look false, although they don't copy the NRA's current website graphic design very well. 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.
- danudey 10y ago
  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.
  - mikeash 10y ago
    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.
    - sintaxi 10y ago
      No cease-and-desist was sent to Digital Ocean or Surge but there was one sent to CloudFlare. Digital Ocean acted on their own behalf.
  - sintaxi 10y ago
    There was no court order, no.
amyjess 10y ago
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.
- cmdrfred 10y ago
  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.
  - amyjess 10y ago
    Fraud has never been protected speech. If it was, Bernie Madoff would be a free man. Same with defamation. You really think that these laws have never been challenged before?
    - cmdrfred 10y ago
      When was that amendment passed?
      - amyjess 10y ago
        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. Further reading: https://en.wikipedia.org/wiki/False_statements_of_fact https://en.wikipedia.org/wiki/False_statements_of_fact https://en.wikipedia.org/wiki/United_States_free_speech_exceptions https://en.wikipedia.org/wiki/United_States_free_speech_exce...
riffic 10y ago
".. the central issue in every trademark infringement case is the likelihood of consumer confusion" - https://apps.americanbar.org/litigation/committees/intellectual/roundtables/0506_outline.pdf https://apps.americanbar.org/litigation/committees/intellect... The content could certainly be infringing and there's little safe harbour for an ISP.

by hristov 10y ago

Mithaldu 10y ago

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.

vitd 10y ago
The article points out that this was likely not a DMCA notice.
- Mithaldu 10y ago
  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".
mgleason_3 10y ago
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.
- Mithaldu 10y ago
  > Unlike a DCMA, the compliant does not require DO to take down the web site. Does it? Please link to the legislation describing the specific complaint made.
  - gpm 10y ago
    That's not how law works, everything is permitted until it's forbidden. So given the absence of legislation they do not have to.
    - Mithaldu 10y ago
      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?
      - gpm 10y ago
        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.
    - wmil 10y ago
      But Digital Ocean could be partly accountable in a libel / slander suit if they don't take action after being notified. Taking down the content is the easiest way not to end up as co-defendants with the Yes Men.
      - gpm 10y ago
        No, they could not, that's prevented by this law: https://www.eff.org/issues/bloggers/legal/liability/230 https://www.eff.org/issues/bloggers/legal/liability/230 (This is specific enough advice I feel I must say that I am not a lawyer, just a knowledge layperson)
- wmil 10y ago
  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.

hga 10y ago

Looking at the copies stored on the Wayback Machine: https://web.archive.org/web/*/http://www.ShareTheSafety.org https://web.archive.org/web/*/http://www.ShareTheSafety.org they don't immediately look false, although they don't copy the NRA's current website graphic design very well. 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.

danudey 10y ago
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.
- mikeash 10y ago
  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.
  - sintaxi 10y ago
    No cease-and-desist was sent to Digital Ocean or Surge but there was one sent to CloudFlare. Digital Ocean acted on their own behalf.
- sintaxi 10y ago
  There was no court order, no.

amyjess 10y ago

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.

cmdrfred 10y ago
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.
- amyjess 10y ago
  Fraud has never been protected speech. If it was, Bernie Madoff would be a free man. Same with defamation. You really think that these laws have never been challenged before?
  - cmdrfred 10y ago
    When was that amendment passed?
    - amyjess 10y ago
      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. Further reading: https://en.wikipedia.org/wiki/False_statements_of_fact https://en.wikipedia.org/wiki/False_statements_of_fact https://en.wikipedia.org/wiki/United_States_free_speech_exceptions https://en.wikipedia.org/wiki/United_States_free_speech_exce...

riffic 10y ago

".. the central issue in every trademark infringement case is the likelihood of consumer confusion" - https://apps.americanbar.org/litigation/committees/intellectual/roundtables/0506_outline.pdf https://apps.americanbar.org/litigation/committees/intellect... The content could certainly be infringing and there's little safe harbour for an ISP.