Another Terrorist Watchlist Leaks, This One Compiled By Thomson Reuters

NRA Trademark Complaint Over Yes Men Parody Takes Down 38,000 Websites

from the because-internet-madness dept

Thu, Jun 30th 2016 9:32am — Mike Masnick

You may have seen last week a website called ShareTheSafety.org, which was an impressively detailed parody site, pretending to be from the National Rifle Association (NRA) and gunmaker Smith & Wesson about a "buy one, give one" handgun program -- where it claimed you'd buy a handgun, and a free handgun would then be sent to an inner city individual "in need" of a gun. The parody was deep and thorough -- including setting up another domain, NRApress.org, in order to post a single press release about this program, and which cleverly is designed with actual links to actual NRA press releases and, if you just go to the main domain, it redirects to the NRA's actual press site. The site definitely fooled a few people, and there were lots of questions popping up on Twitter about whether or not it was real or parody.

Of course, a day or so after it started spreading, it was revealed that famed pranksters The Yes Men were behind it. They also posted a promo video and a fake press conference announcing the program (the fake press conference being a fairly common Yes Men trope).

Not surprisingly, the NRA was not pleased with all of this, and apparently sent some sort of takedown first to CloudFlare, which passed on the notice to the hosting company Digital Ocean. Digital Ocean then passed along the notice to another company, Surge, which is a platform allowing individuals to build static web pages pretty quickly and easily. The Yes Men, it appears, used Surge. It appears that the NRA argued that the site was a trademark violation.

Two important points: (1) unlike all sorts of other content, there is no official legal "safe harbor" for platforms hosting trademark infringing content. CDA 230 explicitly exempts "intellectual property," in part because of the DMCA, but the DMCA only covers copyright, not trademarks. There are, however, cases such as Tiffany v. eBay that says sites can still be protected, though it helps to take action to stop infringement. (2) There is a pretty clear and widely accepted parody defense to trademark infringement, which almost always finds the use of trademarks in parody protected.

Either way, it appears that Digital Ocean freaked out and... took all of Surge down, meaning that 38,000 websites disappeared in the blink of an eye, because the NRA couldn't take a parody, and various platforms kinda flipped out over possible liability over trademark infringement. Surge claims that it had responded to Digital Ocean within 22 minutes of first receiving the notice, and Digital Ocean had told it to "counter claim" to stop the site from being taken down -- but then changed its mind almost immediately and took down the entire site.

After quite a bit of public discussion, eventually Digital Ocean turned Surge back on, but the Yes Men parody site remained down. A few hours later, that site also came back online.

However, as Parker Higgins noted in a rather epic tweetstorm, it's easy to point the blame finger at Digital Ocean which shut down those 38,000 websites over a questionable trademark claim from the NRA, but the problem here is really more structural, with the law and how we handle intermediary liability issues for platforms and the user generated content they host. With copyright, the DMCA creates incentives for censorship (take down to get protected), but at least there's a clear process laid out, that includes limits. With trademark, without any official protections, you can see why Digital Ocean would have strong incentive to just take Surge down. It doesn't want to face liability for infringement.

This is why we talk so much about Section 230 of the CDA and the importance of the widespread immunity it creates for platforms. It's not so much because it helps the companies who run those platforms, but rather because it protects the free speech of the individuals who use those platforms. Without those protections, the default response from many platform providers is "take it all down." It's a recipe for censorship. It's a recipe for shutting down controversial speech or different ideas or even just the places one can go to speak those ideas. And, no matter what you think of the NRA or the Yes Men, you should be concerned about the 37,999 other sites that were down for a while, all because a big trade group wasn't happy with a parody.

And, as Higgins notes, this is not a new situation. In 2010, Homeland Security took down 73,000 blogs, because a single one hosted terrorism related material. And in 2012, a copyright takedown notice from publishing giant Pearson took down 1.5 million education blogs, because just one of them hosted content that Pearson thought was infringing. You can argue that those were mistakes, and once they got publicity, the sites were put back up, but that's not really the point, is it? The fact that this content got taken down at all should be a massive concern. And, yeah, the big numbers make headlines and get put back up, but what about the case where it's a shared server with 2, 3 or 8 accounts? Those don't get attention and thus there's much less pressure to ever put them back up.

Notice and takedown style setups are a real problem, not just when they're abused, but because of the way the internet works. Having much stronger, Section 230-style provisions protecting sites dealing with copyright and trademark claims would do a much better job protecting freedom of expression online.

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Filed Under: censorship, dmca, free speech, immunity, intermediary liability, parody, safe harbors, take downs, trademark, yes men
Companies: cloudflare, digital ocean, nra, surge, yes men

30 Comments

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Anonymous Coward, 30 Jun 2016 @ 9:53am

This is what happens when an intermediary, one that cannot really give its customers individual attention, asks what could it cost to ignore the notice, rather than is this notice valid. Given the legal situation in the USA, even if they think the notice is invalid, they still have to asses the risk of being dragged through the courts in deciding how to handle the notice.
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Whatever (profile), 30 Jun 2016 @ 9:57am

Blame the people who fucked up, namely Digital Ocean.

That said, I can't really blame them. DO is one of a number of very popular services that hackers love to use to launch attacks, spam campaigns, and various other nastiness. DO is probably so flooded with issues, that they cannot take the time to actually look at things properly.
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Skeeter, 30 Jun 2016 @ 10:09am

Parody or Slander?
If the Yes Men had posted a parody of the White House hosting a '2-for-1' on black babies, do you think anyone would have said 'take it down' and meant it then?

As the old adage says, 'while you have freedom of speech, you don't have the liberty of falsely yelling fire in a crowded theater'. You also don't have the right to weave parody into reality to intentionally confuse. The Onion walks this line quite often, but they don't use trademarks and brand-names with real links.

Careful, what you 'tisk-tisk' could turn into a something akin to a porn revenge site using your face and number as the contact for an escort service, and you being totally disempowered to stop them.
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jupiterkansas (profile), 30 Jun 2016 @ 10:20am

Re: Parody or Slander?
I seen much worse than that posted online without it raising an eyebrow, much less people asking to be removed from the internet.

But the question here isn't what is appropriate and what isn't, but the tools and methods used to suppress it. The laws that are being abused for the purposes of censorship.

If the NRA doesn't like what the Yes Men are doing, they can take them to court for libel, not abuse trademark law with takedown notices.
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MadAsASnake (profile), 30 Jun 2016 @ 10:21am

Re: Parody or Slander?
So, looking at a scheme supposedly from the NRA, to give guns free to poor inner city folks, you think this is something the NRA might actually do?

The same NRA that suggested that the way to deal with guns in schools was to put a lot more guns in schools?

Either way, I think the parody works pretty well, at least on anyone not from the NRA.
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MadAsASnake (profile), 30 Jun 2016 @ 10:22am

Re: Re: Parody or Slander?
NRA probably thinks its a good idea...
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Ed (profile), 30 Jun 2016 @ 10:32am

Re: Parody or Slander?
"You also don't have the right to weave parody into reality to intentionally confuse"

Whoa, Chairman Mao!
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Anonymous Coward, 30 Jun 2016 @ 10:42am

Yes Men no more
I predict this stupid stunt ends up costing this group their freedom plus a few million in court fees.
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Another Anonymous Coward, 30 Jun 2016 @ 10:55am

Re: Yes Men no more
I predict this stunt probably won't cost this group their freedom. As an armchair non-lawyer I'd like to point out that parody is not a crime; even parody that is really hard to distinguish from what is being parodied or parody that might not be that good or parody that might be offensive or the worst kind of parody, parody I don't like. Now the NRA could sue the Yes Men for trademark violations but the cost of that would depend on where they sued at and if the Yes Men could get it tossed out using anti-SLAAP statutes.
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Mike Masnick (profile), 30 Jun 2016 @ 10:59am

Re: Parody or Slander?
If the Yes Men had posted a parody of the White House hosting a '2-for-1' on black babies, do you think anyone would have said 'take it down' and meant it then?

No. Because if someone had, that would have been a blatant violation of the First Amendment.

As the old adage says, 'while you have freedom of speech, you don't have the liberty of falsely yelling fire in a crowded theater'.

The old adage is both wrong and stupid. Educate yourself: https://popehat.com/2012/09/19/three-generations-of-a-hackneyed-apologia-for-censorship-are-enough/

Y ou also don't have the right to weave parody into reality to intentionally confuse.

You most absolutely do have EXACTLY that right. Exactly that right. The law is pretty clear.

Careful, what you 'tisk-tisk' could turn into a something akin to a porn revenge site using your face and number as the contact for an escort service, and you being totally disempowered to stop them.

Uh, nope. Totally different.

You're... confused about a lot of issues related to the law.
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Anonymous Coward, 30 Jun 2016 @ 11:06am

People of Limited Cognitive Faculties Traveling at Excess Velocity
If you actually look at the sharethesafety website this is a lot less cut and dried than Mike makes it sound. The page is clearly designed to make itself as official and real-looking as possible. There's even a copyright notice at the bottom of the page marking it as copyright of the National Rifle Association. A lawyer could make a convincing argument to me that this goes beyond parody and into fraud or trademark infringement. Consider: if I made a webpage purporting to be from Nike advertising a new line of shoes made from Jello just because it's ridiculous doesn't mean it's not trademark infringement. Things like The Onion are different because they don't pretend to be the created by the things they riff on. If they made a "story" about Nike's new line of jello shoes it wouldn't say "copyright Nike" at the bottom or rig up extra fake websites to aid in the illusion of legitimacy. That many people were actually fooled should alert anyone that ShareThesafety is clearly failingthe Moron in a Hurry test.
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John O, 30 Jun 2016 @ 11:12am

Some Questions
I have a few questions:

What if the DMCA was amended so that it required a lawyer to send a notice? No robots sending off 10 zillion of them, but a lawyer that actually put some sort of credentials (a law license number, perhaps) for every notice?

What if, faking or putting in false credentials for this was considered a felony, and the DOJ was instructed to pursue such crimes vigorously?

What if the notice required the lawyer doing this to provide some argument that it was specifically a copyright issue (and not trademark, not patent, etc), and that leaving that part of the notice blank or falsifying it was also a felony?

Would this stop such abuse? Would it lead to other unacceptable outcomes?
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MadAsASnake (profile), 30 Jun 2016 @ 11:42am

Re: People of Limited Cognitive Faculties Traveling at Excess Velocity
If you find this website too plausible then I think you are worrying about the wrong organisation.
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John Fenderson (profile), 30 Jun 2016 @ 12:10pm

Re: Yes Men no more
If the Yes Men were as vulnerable as that, they would have been easily destroyed by the other very wealthy and powerful organizations they have done similar things with over the years.
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John Fenderson (profile), 30 Jun 2016 @ 12:19pm

Re: People of Limited Cognitive Faculties Traveling at Excess Velocity
The Yes Men have a particular style of parody that is both especially illuminating and requires that they mimic their target as closely as possible in style.

Part of what makes the parody especially effective is that they can put forth the craziest, most extreme positions and so many of the supporters of the target accept and support the crazy as well.

Even when they were addressing the textile industry and had a giant penis inflate out of their suit while discussing technology that can remotely administer electric shocks to textile workers.

The point isn't to illuminate those people. The point is to demonstrate how effective, common, and dangerous blind allegiance is in the corporate world.

All of which is a long-winded way of saying that it's hard to find a better example of true political parody than what they do.
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Richard (profile), 30 Jun 2016 @ 12:19pm

Re: Re: Parody or Slander?
Does the NRA actaully need to be parodied?
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Richard (profile), 30 Jun 2016 @ 12:40pm

Re: People of Limited Cognitive Faculties Traveling at Excess Velocity
The NRA is not a trading organisation - it is a political campagning organisation.

I really don't see that it has any kind of business that requires trademark protection.
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Anonymous Coward, 30 Jun 2016 @ 1:24pm

Re: Re: Yes Men no more
I don't think they are covered anymore since they went through multiple steps to make the press release seem to be true. I wouldn't be surprised to see the CFAA called into the charges.
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Anonymous Coward, 30 Jun 2016 @ 2:20pm

Re: Re: People of Limited Cognitive Faculties Traveling at Excess Velocity
So they list the copyright as belonging to the NRA, the press release website pulls assests from the NRA-ILA website directly, as well as directs to other nra-ila articles for realism and they're collecting email address under false pretenses.

I'm all for parody and the burden for suppressing parody should be high, but I don't think this is a good case to talk about trademark law as not applying.
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Anonymous Coward, 30 Jun 2016 @ 2:56pm

Re: Yes Men no more
These are the people who successfully faked a press release on the BBC that BP was going to settle the Bhopal case in full. If BP couldn't shut them up, I doubt the NRA will.
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Another Anonymous Coward, 30 Jun 2016 @ 3:01pm

Re: Re: Re: Yes Men no more
I would be surprised to see the CFAA called in ; mostly because it's a bullshit law and has nothing to do with what the NRA is claiming. Also really convincing parody is still parody, and if you really really really really really really really really really really really really really work at making it look convincing, it's still parody.
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Anonymous Coward, 30 Jun 2016 @ 4:25pm

Re: Re: Re: Yes Men no more
Yeah! How dare they make their parody believable!
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John Fenderson (profile), 30 Jun 2016 @ 6:21pm

Re: Re: Re: People of Limited Cognitive Faculties Traveling at Excess Velocity
I never said trademark law didn't apply, nor did I say that what they did was legally defensible. I said it was perfect example of true political parody.

However, that they have done even "worse" things in the past to organizations that are richer and more powerful and have successfully defended themselves against those, I'm guessing that they have a good idea of what they're doing and what they can get away with.
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Lawrence D’Oliveiro, 30 Jun 2016 @ 9:54pm

Second Amendment Trumps All Other Amendments, Don’t You Know
All your other rights can go to hell, just so long as this one stays intact.
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Anonymous Coward, 1 Jul 2016 @ 9:30am

I'm sure there's precedent for this kind of response...

Caedite eos. Novit enim Dominus qui sunt eius.

"Kill them all. God will recognise his own"
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Ninja (profile), 1 Jul 2016 @ 12:32pm

Re: Second Amendment Trumps All Other Amendments, Don’t You Know
Donald Trump approves it. Give a gun to your kids!
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jupiterkansas (profile), 1 Jul 2016 @ 12:59pm

Re: Re: Re: Re: People of Limited Cognitive Faculties Traveling at Excess Velocity
Fighting them and taking them to court just brings the parody to the forefront. I'm sure they'd like nothing better than a lawsuit.
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Lawrence D’Oliveiro, 1 Jul 2016 @ 5:19pm

Re: Donald Trump approves it. Give a gun to your kids!
You know how in his address at the NRA convention he said he would abolish gun-free zones?

Did you notice the big sign outside the convention centre, saying “NO WEAPONS ALLOWED”?

That’s right—the NRA convention was a gun-free zone!

Say one thing, do another, don’t you know...
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Ninja (profile), 4 Jul 2016 @ 6:01am

Re: Re: Donald Trump approves it. Give a gun to your kids!
I was joking with the word 'Trumps'. I couldn't care less about the position either candidate has on guns actually because I see there are advantages and disadvantages of equal weight for allowing and for forbidding them.
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Anonymous Coward, 14 Jul 2016 @ 1:54pm

Re: Re: Donald Trump approves it. Give a gun to your kids!
Therefore, anyone who owns a smart phone, cannot have any solitude.
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