4 ms·
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. Onc
by 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 agoThe article points out that this was likely not a DMCA notice.
- Mithaldu 10y agoFair 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 agoOh 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 agoThat'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 agoYou'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 agoAs 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 agoBut 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 agoNo, 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 agoThe 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.