Tumblr Stole My [Subdomain] At The Behest of A Corporation | Hacker News Reader

Tumblr Stole My [Subdomain] At The Behest of A Corporation

dontplayitcool.tumblr.com

190 pointsterrellm90 comments

This happens on Shopify all the time now. Since we moved our servers to the United States we are being hit with DMCA related infringements almost weekly.

If we get normal trademark disputes they are usually easy to deal with: we simply put the two parties into direct contact and they can figure it out. However, if the requester uses the DMCA method everything changes: We get an ultimatum from our hosting company (Rackspace) to resolve the conflict within 7 days or they will unplug our servers, which would disconnect many thousands of e-commerce stores and millions of sales. Obviously we cannot allow this to happen. Rackspace does this because they need to stay a "safe harbor" under the DMCA and this is how they pass the buck to us.

Luckily there have been precedents where false DMCA claims have lead to hundreds of thousands of dollar in damages to the plaintiffs. Our only recurse is to point this out to the originator of the claim before forwarding it to the affected store. In most cases this leads to them dropping the complaint and/or pursuing the (correct) copyright/trademark avenue instead.

To post up a counter-perspective here: From our perspective (Weebly) the DMCA is quite convenient for us. We turn away any DMCA complaint not related to copyright (like trademark infringement).

Other than invalid complaints (did not meet the requirements for a complaint, was not a copyright complaint, etc) we have never had an abusive DMCA notice -- 100% of our notices (and we usually get a couple per day) have been valid.

We don't have the issue with our host being able to unplug us that easily (we manage our own network) but we do have the issue of liability, which the DMCA solves for providers like us.

Also -- I'd definitely be interested in the cases you're referring to, where false DMCA claims have resulted in major damages.

Could you explain why have you decided to manage your own network. If I remember correctly, that wasn't the case in the early days of Weebly.

For many reasons, including:

- We already have the expertise to do so, so the cost to us is much smaller

- We can ensure a much higher level of service by making sure every component along the line is up to par (you'd cry if you heard what some colo providers do)

- We can fix problems in-line with our priorities, since we're the ones that fix them (like keeping published sites up, even if the editor is down, for example)

- We can set up and manage geographically redundant datacenters

- And finally, we're able to do so extremely cheaply

It's definitely something to consider when you reach a certain scale, and especially if you have the know-how to get it done. We've calculated that for every server we purchase, we'd pay that cost every 2-3 months on AWS, for perspective.

no ddos protection, lousy routers, single points of failure everywhere (on old servers that are about to die), running their racks very near electrical capacity (too many servers load up at once, breaker trips), way oversubscribing bandwidth, not doing appropriate preventative maintenance, downtime because some tech slips up when editing routing configuration, downtime because some tech trips over your power chords (honestly, a top cause of downtime), downtime because another customer in a shared-colo environment trips over your power chords, etc. the list goes on and on and on.

and, worst of all, you're at their whim -- if they decide, for whatever reason, to unplug you, that's it. we prefer to eliminate anyone who has the ability to take our service down :)

if people are tripping over your "power chords" you ain't playing them right!

"Tripping over" is more a figure of speech. In shared hosting, it usually involves someone trying to install or remove a server in your cabinet and accidentally tweaking the power chord just enough to reset the power to a critical piece of equipment (like a storage array, for example).

http://en.wikipedia.org/wiki/Power_chord http://en.wikipedia.org/wiki/Power_cord

haha, thanks :) didn't catch that

I think you need to re-read the part he put in quotes, not the "tripping over" part!

What are you doing for DDOS protection now?

I don't want to give away the specific device we are using, but it's something that does everything in custom hardware and sits on the edge of the network.

Believe it or not, we've had botnet attacks that took down $100k Cisco routers. Nasty :(

> (you'd cry if you heard what some colo providers do)

I'd love to hear more, if you're at liberty to share.

Time to find a new hosting solution, IMHO.

Pretty much all hosting solutions in the United States will fall under the "safe harbor" clause of the DMCA.

This law makes any noncompliant service a "publisher", liable for all content on the site - unless you follow the DMCA. Upon receiving a takedown notice, the service provider must take down content immediately, and issue a notice to the supposed actual content owner. Content owner has a short period in which he can file a counter claim and keep the content up for a little bit while the two sides argue.

Service provider becomes a publisher, liable for your potentially illegal content (trademark/copyright infringement, slander, libel, child pornography, etc) if they do not comply.

Rackspace is not the problem - the 105th Congress was the problem.

That's overstating the case. The DMCA doesn't require instant take-down, it promises the converse: if you take it down in a timely manner upon receipt of a complaint, you cannot be held liable. The hosting provider is allowed to make its own determination about the validity of the claim, and in fact most do.

Can you elaborate on the type of documentation you use false DCMA claims?

Just because they do a DMCA request doesnt mean you have to hand it over. Allow the other participant to submit a counter notice if they choose, which puts it out of your hands.

Why did you guys move your servers to the US and do you think it was worth it with the additional cost of dealing with DMCA?

It was worth it because Rackspace is a much better host. We used to run our own data center in toronto before this. The DMCA is a major annoyance but doesn't really factor into the bottom line.

I would assume the reduced latency for a predominantly US-customer base would be well worth it. The cost of dealing with the DMCA is minimal (and other countries have much less liability protection, anyway)

From Ryan Schreiber, Founder/President of Pitchfork:

It is not our wish to kick people out of active accounts. For example, the user @pitchfork on Twitter had an active account before we signed up. That’s fair, and in that case we don’t feel any more entitled to a ‘pitchfork’ URL than anyone else. We’ll be happy to surrender the URL and find a home elsewhere if the original register of the account wishes.

http://pitchfork.tumblr.com/post/393233651/dear-tumblr-commu...

Hmm...anyway, they claim that the last post was made on November 18, 2009. I don't consider that to be an inactive account...

I don't like what tumblr did here. Now it means, that if I subscribe to them and don't post something for 3 months, they can just take the subdomain from me and give it to someone else.

They probably do have a legal right to that, but still, it's still impolite, if not nasty.

I think it was a combination of several things that made them consider it inactive:

"the last post that had been made was on November 18, 2009, and said, “This filter is obsolete.” The post before that was from March 21. There had been a total of five posts ever made to the account."

If this is true, this is in fact a good arguments for considering it inactive. Not enough to disable it like they did, but it's more in the gray area than the original post made it sound like.

a tumblr employees response to the OP: http://meaghano.com/post/393246405/tumbledore-ive-run-pitchf...

So which is it?

Ryan: "There had been a total of five posts ever made to the account." (with screenshots of said posts)

Meagan: "There were not 'several posts', on that account, there were zero."

While I agree that in either case, it was hardly a highly-used and highly-trafficked site, the fact that Tumblr can't get their numbers straight tells me at the very least that someone didn't do their due diligence to know exactly what they were handing over.

Ryan : Within 10 minutes, a tumblr representative responded: “Hi, Megan. Those URLs are now free. Please let me know if there’s anything else I can help you with. Thanks for using Tumblr!”

Meagan : As per our policy, we emailed this account’s address to inquire about the dormant account. After you failed to respond for 72 hours, we released the domain.

Was it 10 minutes or was it 72 hours?

Probably 10 minutes. That guy has no reason to lie. Meagan, does. Her response is also awful and she should be fired, she clearly has no respect for the users and without users... well we all know what happens.

I think you totally misread the motivational factors here. That guy (aka Tumbledore) could easily want to lie to bolster the justification for the indignation he obviously feels. Meaghan, OTOH, has many more reasons not to want to lie, foremost of which is that she is representing an entire actual company. Tumbledore has nothing to lose and everything to gain, since all that's at stake here is his internet "personal brand", for which notoriety is the stock-in-trade.

UPDATE: sh4na is correct that I misinterpreted "that guy" to mean Tumbledore, not Ryan of Pitchfork. The 10 minutes vs. 72 hours discrepancy is significant, but to presume that Ms. O'Connell is lying over-reaches. That is, unless one presumes that she's personally conducted an investigation of the support staff's emails and the account management history in order to satisfy the ego of an entitled netbrat, and is now knowingly misrepresenting the true facts of this very important matter.

You are confused, that guy is not the blog owner, he is the Founder of Pitchfork, and obviously he has no reason to lie. The fact that the Tumblr version blatantly contradicts him only makes it that much obvious that that Meaghan person is the one lying about the whole thing.

If she didn't know the facts and never did her part to find out, she should not have posted such a post and may as well be lying, since she states conflicting information as fact.

Was it 10 minutes or was it 72 hours?

Well, according to the email posted to http://tumbledore.tumblr.com/post/393276231/this-is-in-respo... they did NOT give 72 hours notice, so definitely 10 minutes.

The screenshots were from Google Reader. Meaghan has indicated elsewhere that the posts had been deleted, and the GReader posts are simply a history of what little activity there had been there.

http://media.tumblr.com/tumblr_kxyamehQd51qajoo8.png Have a look at those posts. One from March 14th says outright that it's not being used as a blog: DONT FOLLOW ME I AM NOT A REAL TUMBLE BLOG

That guy has an active blog on Tumblr as Tumbledore. He clearly was using that account as an alternative dashboard, which is legit, but certainly doesn't need a special domain. I could see being put out a little bit about losing the domain, but his histrionic proclamations of oppression are a severe over-reaction. They have the smell of self-entitled internet personality.

I have little doubt that Tumblr exhibited more diligence in investigating this matter than was due Tumbledore for taking back a domain on their service. That domain a) had only been used as a convenience account, not for publishing anything, and b) that only in the distant past. Add to that c) it was occupying a subdomain that matches the trademark of another customer whom had requested it, and d) they gave him a reasonable opportunity to appeal. 72 hours does seem unnecessarily brief, but in this case it's immaterial.

Well, one can definitely say Pitchfork has better PR people then Tumblr.

I hate to say it, but the tone of the response surprises me. Perhaps the OP wasn't honest, but I don't take that as an excuse to reply in a condescending manner.

Tumblr has a very informal attitude regarding staff blogs. Meaghan was a blogger before she ever worked for Tumblr. When she blogs about things, it's not an official response. It's merely her personal reaction. The staff blog is at http://staff.tumblr.com.

Tumblr employees wouldn't be using the service effectively if they were all stodgy officials. The fact that they're allowed to be themselves, flaws and all, is a feature.

Perhaps a feature for the individuals who work there, but certainly not a feature for the company itself. This looks bad for Tumblr no matter where it gets posted. This was a response to a matter affecting the company, not Meghan personally, so it would seem to be a reflection of the company's thoughts no matter where it appears.

Honestly, that doesn't really look too bad to me. Meghan told us how it went down from her point of view.

Its refreshing to see a response that doesn't contain loads of obfuscated spin.

You're right, it is refreshing to see someone flat out lie about company business in public on a personal blog. You don't get to see that every day :)

Why do you assume that she is lying?

Because the new story given by the owners of the domain in question have a completely different story to hers.

Honestly, I find her reply to be pretty rude.

That doesn't necessarily mean that she is lying, it could very well be that someone else is lying, (I thought PR was all about lying to people?).

It could also be that no one is lying and the story simply was misremembered or garbled in transmission to respective PR departments.

If you are already being rude, why bother lying to cover your ass?

This is outrageous. Callous, self-righteous, and mocking. I can't believe someone would take this position against a user of their service.

Interesting word choice they used for Pitchfork...

"We started this process last week upon our first correspondence with the trademark holder."

After reading that, I don't think it's so bad. The internet needs a giant broom and dustpan. Tumblr has the right to keep their own house clean.

I think that was well handled: An explanation of what happened coupled by an offer to return the account if the previous owner so wished, so the ball's in his court.

At some point the message that "web 2.0 is sharecropping" will sink in, one way or the other.

Reblog of a reblog. The original is here: http://tumbledore.tumblr.com/post/393030100/tumblr-stole-my-...

Yet another exhibit showing that nobody can parse tumblr's stupid retweet implementation.

It's not a "retweet implementation"--it's hypertext. If nobody can parse that then we've got bigger problems.

That argument could defend any poor-usability site or mechanism.

hey guys, here's pitchfork's side of the story, from ryan schreiber [prez/founder]: http://pitchfork.tumblr.com/post/393233651/dear-tumblr-commu...

im not going to personally comment on this one, so here's the gist of ryan's letter: the site had very few, very infrequent posts, and tumblr readily handed it over when we asked about it. nothing dubious, no back-alley handshakes, nothing funky. the original poster is welcome to take it back, we never had any intentions of evicting active residents from their property.

give it a read.

full disclosure: i work @ pitchfork.

I don't think anyone sees something wrong with Pitchfork here, just Tumblr.

If Pitchfork is willing to relinquish the domain, they should do so immediately. What are you waiting for?

"We’ll be happy to surrender the URL and find a home elsewhere if the original register of the account wishes."

The OP has already made a huge fuss about it. What else must he do to express his wishes?

He might enjoy making a fuss about it more than the tumblr account itself.

This is how Tumblr followed up in email after being asked why the domain was taken:

http://tumbledore.tumblr.com/post/393276231/this-is-in-respo...

The title is a bit misleading. Tumblr took away a subdomain on their own domain.

Only semantically misleading. We've come to expect that if we get a subdomain on a service like tumblr, it becomes ours...if not legally, at least by norm.

There is a difference between "come to expect" and "have a right to."

Just because something is within the rules, does not mean that something is a good practice. In this case I have learned that tumblr is willing to not honor a social norm on my behalf, which means I'll take my business elsewhere.

No doubt. I'm just stating that I feel he may very well be over-stating his case. I agree that information like this is vital in making a decision on whether or not I want to do 'business' with Tumblr.

Strawman. I don't think the OP is rushing to his lawyers, you're putting it to that extreme.

Blog post complaining = come to expect

Calling up lawyers = have right to

> Strawman

Not really. See this:

  Keep in mind that the word “pitchfork” is not a
  proprietary name, it is a noun dating back to the
  year 1364, so they had no legal right to the word
  or the subdomain.*

By talking about how Pitchfork Media has 'no legal right' to the sub-domain, I take that to imply that he's claiming -- at least one some level -- that he does have a legal right to the sub-domain. I may be reading too much between the lines though.

He also goes on about other 'rights' that he doesn't have. See:

  Sadly, I apparently no longer control this image or
  this information, nor can I exercise my right to remove
  it from the Internet.

I'm pretty sure there is something in the Tumblr Terms of Service that gives them the right to redistribute his material, which would probably shield them in this case. He has no 'right' to 'remove it from the internet,' the best he has is copyright which could be used to prevent distribution.

> By talking about how Pitchfork Media has 'no legal right' to the sub-domain, I take that to imply that he's claiming -- at least one some level -- that he does have a legal right to the sub-domain.

i think his point is that they aren't legally entitled to hijack the subdomain name. there was no infringement or impersonation or anything happening. tumblr wasn't put under the legal thumbscrews on this, they coughed it up willingly when asked. that is not a customer-friendly move, and so he is angry about it.

>That’s because Tumblr stole my subdomain and gave (sold?) it to Pitchfork Media Inc. Keep in mind that the word “pitchfork” is not a proprietary name, it is a noun dating back to the year 1364, so they had no legal right to the word or the subdomain. It clearly wasn’t a case of impersonation as none of my posts had anything to do with music. If there was some kind of content quality threshold that failed to be met which led to my blog’s demise, then 98% of Tumblr should now be blank.

FWIW this is poor reasoning. Whether a word is a noun, in common usage or of great age is not relevant to it's use as a trademark. A trademark has to be distinctive when used to indicate the origin of a specific category goods/services - pitchfork is distinctive in the field of music (I'm not sure which NICE class that would be) and indeed in most fields except farming AFAIK without specific research.

The only way to determine if Pitchfork has a legal right to prevent others using this subdomain commercially one must inspect the TM records in the appropriate [geographical] domain. Pitchfork certainly can't demand to use the subdomain but they could prevent its commercial use.

I expect this was well within the T&C of Tumblr.

I think he just wants to emphasize that he did not register mcdonalds.tumblr.com or cocacola.tumblr.com but pitchfork - a rather generic word.

They don't have more rights than he does though.

And because he got there first probably less.

That's also not the original post. It's a post that's been reblogged a bunch of times. I think this might be the original post:

http://tumbledore.tumblr.com/post/393030100/tumblr-stole-my-...

You mean "on their own subdomain", right? Subdomains are domains and tumblr.com is a subdomain of com. And com is a subdomain of " " for that matter. RFC 1034. So why misleading?

Good point - I've updated the title to indicate subdomain.

Just to add a note here: I have worked for Pitchfork Media previously. As a client, they were always the most awesome people to work for: Ryan and his team completely get the web and how it works, and don't step on people's toes, rather just carving out their own niche and letting people come to them.

There's zero chance of malice here, just a bit of ruffled feathers.

And Pitchfork responded explaining how it happened: http://pitchfork.tumblr.com/post/393233651/dear-tumblr-commu... - the account looked inactive, hadn't been posted to for ages, and Pitchfork asked Tumblr if there was a way to get the account.

It's key to note, though, that Pitchfork played this right - they say that "We'll be happy to surrender the URL and find a home elsewhere if the original register of the account wishes."

he may have subscribed using google reader, which has an independent cache of the items in a feed.

I wonder how long he was inactive for - "several posts" in a year could mean he did the typical "blog" session - post in a flurry for a week, realize nobody is following you, give up.

If that's the case tumblr may well have terms about rights to a subdomain based on inactivity.

"Sadly, I apparently no longer control this image or this information, nor can I exercise my right to remove it from the Internet."

Do you have a right to remove pictures of you, or pictures you took, from the internet?

If you have the copyright, it would be illegal for them to distribute the image or text without your permission.

I'm sure by sending a DMCA takedown request he could get this done.

I don't see why this would be the case with tumblr...I mean it's a blog, not a communication tool.

Why couldn't the company just get pitchforkblog.tumblr.com and then just forward the A record for blog.site.com to it?

I'm curious - even if you have a domain that points to tumblr via A records (as detailed http://www.tumblr.com/docs/custom_domains) then you are still at the mercy of tumblr...aren't you? I suppose that the upside of using your domain is that you can point it elsewhere if something like this happens (assuming that you backed up your content) and any users you have still use the same domain.

I went to the RSS feed, but I didn't see his old posts.

This was well within Tumblr's legal rights to do, though still poor form for them to have done it, because there seemed to be no legal motivation to "take" the subdomain. The word "pitchfork" is not something that can be trademarked and pitchfork media has no more right to the subdomain than you or I, no matter how badly they want it. So this doesn't seem like a decision Tumblr was forced into for copyright/legal reasons. They just thought it would be a good idea either for profit by selling it or to get on the company's good side (mind you, however, we are only hearing one side of the story, so that assumption may be entirely inaccurate). I don't blame the guy for being a bit upset. Even realizing you have no actual legal claim to something, if you've been using a url, username, twitter account, etc. for over a year and suddenly it's taken from you without so much as a warning, it would be annoying. So no, in reality, nothing was "stolen" from him, but the manner in which Tumblr revoked the URL they had assigned to him feels a bit unethical.

The word "pitchfork" is not something that can be trademarked

Actually, it is a trademark. Just like the words "Apple" and "Java".

I'm not sure if that's relevant to subdomains, though.

Email techcrunch: tips@techcrunch.com

They might be able to help you out.

See:

http://techcrunch.com/2010/01/23/facebook-vanity-url-harman/

There's not much to go on in this post. Has he even asked Tumblr for an explanation? Perhaps someone from Pitchfork Media asked for the password, claiming they had lost the original email account, hoping that the domain was abandoned? That would still call for an apology, but isn't half as bad as what it's made out to be.

Also, claiming that your subdomain was renamed and claiming that your original posts are still on the unrenamed domain is inconsistent at best.

| Has he even asked Tumblr for an explanation?

Yes, apparently he has: http://tumbledore.tumblr.com/post/393276231/this-is-in-respo...

shrug

No, Tumblr did not "steal" anything from you, kid. You used a service of theirs (for free) and they decided to discontinue that.

Morale of the story: don't feel entitled to or become dependant on free services.

You are 100% correct, yet upon reading this story my thought is not about that damn entitled kid. Instead I think "wow that is certainly an act of capriciousness that I would never wish to happen to me -- don't use tumblr".

I think, yeah, if I overtly state the account is no longer in use in the single post made over the previous year, and I've never used it for its proper purpose, I probably shouldn't expect that Tumblr are going expend company resources just to be extra, extra nice instead of following the letter of the ToS, especially since if I know full well that it's a desirable domain.

Moral of the story: don't use tumblr.

I'm pretty sure blogspot (for example) wouldn't do that to a blog (call a blog inactive cause the last post is 2 month old), do-no-evil or not, free service or not.

"Moral of the story"

Reply on news.ycombinator.com