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Brock, Founder of surge.sh here. 1. Digital Ocean did NOT receive a complaint on behalf the trademark holder. CloudFlare was the company sent a complaint on be

by sintaxi 10y ago

Brock, Founder of surge.sh here. 1. Digital Ocean did NOT receive a complaint on behalf the trademark holder. CloudFlare was the company sent a complaint on behalf of the trademark holder, which was forwarded to DigitalOcean which was then forwarded to surge.sh. To our knowledge the NRA isn't even aware of DigitalOceans or surge.sh existence. 2. There was no known trademark infringement happening on surge.sh. There was a complaint sent to CloudFlare that such a thing was happening. Digital Ocean acted as if the alleged infringer was guilty even though there is nothing other than the complaint itself to suggest this is true. 3. Digital Ocean was aware that we were willing to remove the content with proper due process. We at surge do not have editorial control of the sites published to surge.sh therefore we wish to provide legal justification to our customers when their content is removed. This would provide our customer with a means of recourse if the takedown is in error. 4. All we asked for was due process and this was something promised to use in the past by Digital Ocean. https://medium.com/surge-sh/more-on-january-7th-downtime-the-dmca-and-due-process-c4472032856#.u2y1tps6q https://medium.com/surge-sh/more-on-january-7th-downtime-the... 5. We spoke with DigitalOcean on the phone at 11:02am where things were they said we needed to file a counterclaim with the NRA. We thought this was odd since the NRA doesn't know we exist however we were willing to do it anyway. Our last message to Digital Ocean was at 12:05pm after Digital Ocean sent us the following case study http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1066&context=dltr http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=... ``` Thanks for sending this over. I'll get through this as soon as possible. Do you mind sending over the counter-claim you are asking us to fill out? thanks, Brock ``` They responded at 12:47pm with the following... ``` I’ve shared the outcome of our phone call with our Trust and Safety team. Since this is not a DMCA complaint, a counterclaim does not apply here, contrary to my misunderstanding over the phone. I apologize for the incorrect information. [...] You have until 1:26pm EDT, a bit under an hour from now, to remove the content. Otherwise, we will need to disable networking to this Droplet. ``` We unfortunately didn't see that message until it was too late and at 1:26pm our network access was disabled followed by radio silence from Digital Ocean for the following hour. So Digital Ocean communication to us went as such.. 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" Since Digital Ocean realized they misrepresented themselves on the phone we would have preferred if Digital Ocean had picked the phone back up rather than shut us down with less than an hour warning.

citricsquid 10y ago
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 10y ago
  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 10y ago
    No offense, but your original statement on this matter was very misleading to say the least.
    - sintaxi 10y ago
      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 10y ago
        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 10y ago
    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.

by sintaxi 10y ago

citricsquid 10y ago

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 10y ago
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 10y ago
  No offense, but your original statement on this matter was very misleading to say the least.
  - sintaxi 10y ago
    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 10y ago
      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 10y ago
  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.