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

from the because-internet-madness dept

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.

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