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Comment by hristov | Hacker News Reader

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.

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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.

The article points out that this was likely not a DMCA notice.

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".

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.

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.

> 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.

That's not how law works, everything is permitted until it's forbidden. So given the absence of legislation they do not have to.

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?

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.

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.

No, they could not, that's prevented by this law: 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)

Looking at the copies stored on the Wayback Machine: 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.

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.

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.

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.

There was no court order, no.

".. the central issue in every trademark infringement case is the likelihood of consumer confusion" - https://apps.americanbar.org/litigation/committees/intellect...

The content could certainly be infringing and there's little safe harbour for an ISP.

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.

> Fair use applies to copyright, not trademark.

This is simply wrong. Here's a link for you:

https://en.wikipedia.org/wiki/Fair_use_(U.S._trademark_law)

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.

Furthermore there are limits to free speech in the US. For example: obscenity, treats of violence, military secrets, etc.

Australia has no bill of rights, yet judges have upheld individual right to protests (Victoria has a Charter of Rights, but that's it). China has free speech in their constitution. Germany has free speech, unless it has anything to do with the original Nazi party symbols.

So civil courts need not uphold the constitution? I understand the limits exist, but they are entirely unconstitutional. If you believe it would be a good idea to have such a law, go ahead and pass an amendment.

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?

When was that amendment passed?

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.