197 points | by hn_acker8 小时前
DMCA is a scourge.
I think the whole thing is dumb, but at the very least there should be some form of punishment for bogus DMCA claims, and purposefully labyrinthine DMCA processes.
Edit: Just to be abundantly clear. My comment is a general comment on the DMCA, because the DMCA is mentioned quite a bit in the article, and the EFF was forced (erroneously) to follow the DMCA counter-notice process.
This isn't a copyright claim, so DMCA doesn't apply, but the DMCA rewards labyrinthine DMCA processes by granting the provider immunity. Following notice / counter-notice timelines in the law means the host is not liable to either of the other parties for the takedown or the restoration.
Might be nice if there was a faster process to restoration if the customer vows to indemnify the host though.
As numerous other comments accurately point out, this was never a DMCA claim.
However, for actual bogus DMCA claims, there is a "form of punishment" written into the law. The sender of an actual DMCA claim has to swear under penalty of perjury that they are the proper rights holder and that the claim they are making is truthful and accurate.
The punishment would then be the recipient suing the sender for perjuring themselves in the sending of the bogus complaint. The problem is that is a very hard case to prove, and requires the expense of a lawsuit, so it is seldom ever taken by those who receive bogus complaints.
Perjury only applies to the "proper rights holder" part.
Being very reckless about sending out claims has no punishment.
What's likely to happen is SLAPP-esque legislation to stop platforms utilising its user base as its product, whilst simultaneously disenfranchising them from the moderation layer.
In order to have a DMCA counter notice there needs to be a DMCA notice. Their complaint is that there never was a DMCA notice so its not responsible to apply a counter notice policy as you are not countering a notice.
In short, without explicit punitive penalties enshrined in the legislation itself, you will never be able to stop Corporations wielding consumer-facing legislation in an asymmetric and bad faith manner. This is as true of GDPR and AML/KYC legislation as it is of DMCA and similar abuses of copyright and IP laws by lobbyists.
I think a closer analogy to GDPR would be companies turning off tracking for a bunch of people outside the EU, and I would lay most of the blame/praise for that at the feet of GDPR.
Apparently not. Sorry.
The DMCA law did not _compel_ netlify to act this way, but the effects of DMCA did _cause_ netlify to act that way.
You are, you're just wrong
It's not, it's very smart. You probably are misidentifying the goal of the people that created it.
Edit: Yes, this is satire, not parody, and satire needs to clearly identify its target to work properly. Here, however, the target of the satire appears to be carbon offset sellers, as a farcical “life offset” seller. The companies in question are linked as mere “supporters” of the satirical service; they don’t appear to be the direct target of the satire.
Satire aims to evoke an emotional response, to point out moral failures and inconsistencies as crassly as possible.
Social criticism that first and foremost avoids offending anyone is a waste of paper in my opinion always.
This "satire" all comes across as "I'm 14 and this is deep." We get the joke. Just use a fictitious logo.
Sure the companies could have sued, but chances would have been about exactly 0% for those companies to win the case against the EFF on the back of their trademarks, and they knew that very well (my opinion), that case would've probably just been dismissed immediately.
Watering down trademarks opens the can of worms for all forms of trademark abuse by all kinds of parties:
https://www.businessinsider.com/proud-boys-trump-march-dc-co...
https://www.today.com/food/news/jack-daniels-dog-toy-supreme...
Jack Daniels won because the maker of the dog toys were selling them, and wanted a trademark themselves.
Here we're talking about activists making non-commercial parody usage; the EFF's letter already mentions the Lanham Act, and let us add to that the Trademark Dilution Revision Act of 2006 (https://en.wikipedia.org/wiki/Trademark_Dilution_Revision_Ac...) which adds an express fair-use defense for noncommercial use.
poking at a corporation for the sake of legal infringement is still likely to require a lawyer in place to defend against the non-sense, even if it won't hold in court. There is a lot of stuff like this -- you generally don't poke sleeping bears even if you're sure they won't awaken.
They feature human babies in test tubes on this page: https://repaer.earth/about
To me, it's obvious parody
Parody doesn't necessarily require that you make significant alterations to a symbol or name. Only imbeciles would think that the fictional "Fuck you - I'm eating" slogan actually represents the Carls Jr. company in real life.
See also "satire is dead" meme.
So what?
It uses real logos from three gas companies, two of which tried (unsuccessfully) to have their logos removed.
Ultimately the bullied party upped-and-left Netlify, after which Netlify wiped its brow and said "phew! that was a close one! i nearly got caught up in a dispute!"
Netlify sound like cowards. I don't think they'd have my back if anyone objected to a website I hosted with them. I shouldn't purchase their services. Also, I should look at the track record of anyone else I'm thinking of using for hosting; do they have a good reputation for defending their clients' rights and telling barratrous lawyers to GTFO?
That is, my thought is that the website deliberately used real company logos and links (it would have been easy to use fake, similar-parody names) because they knew they'd be likely to receive C&Ds from these companies whose knee jerk response would be to demand their logos be removed. Then bam, the companies seem clearly in the wrong legally, the EFF goes to bat for them and also writes a long blog post like this, and instant Streisand Effect. I mean, I would have never heard about this website if it weren't posted here. FWIW I think this was a good strategy on the part of the website creators, so kudos.
That said, Weird Al hasn't actually distributed unmodified trademarks of other entities, to my knowledge. Even if that would generally be problematic, the context of a "featured partners" list as in TFA probably falls below a threshold of likelihood of confusion which arises in other unauthorized uses of trademarks.
Case law suggests that he is required to (and he does), license artist's music.
He's not parodying Miley Cyrus in 'Party in the CIA'. He's parodying the CIA. Because the lyrics and track aren't the subject, licensing of the track is required.
Similarly, If Repaer used a licensed font on the site, they'd have to license it.
I'm not sure about that. The definition of parody hinges on imitating an author or work (sometimes a whole genre), rather than on satirizing/critiquing subject matter unrelated to the author/work being imitated. He could write a song satirizing/critiquing the CIA and if it happens to imitate a song/style of Miley, then it's a parody of the latter, not of the former. Or a parody of nothing at all, in the strictest definition, since he's not satirizing/critiquing that which he's imitating.
When it comes to music copyright, certain aspects are copyrightable (therefore requiring license to use) and other aspects are not. Words and melody are (so Weird Al would need to license Miley's melody if he doesn't modify it sufficiently), but rhythm/chords/timbre/style/etc. are not (so Weird Al wouldn't need to license anything if he is merely copying those things from Miley). I think Al makes some songs with a copied melody requiring licensing, and some songs without that in which case no permission of any kind is legally necessary.
If you replace Smells Like Teen Spirit with Cliff Richards' "Saviours Day" it does not work, Cliff is not going to confuse and annoy your parents, his utterances aren't incomprehensible, and so on. The choice of song is necessary, which would justify protection.
If he is printing such marks on his products, then it comes down to the "likelihood of confusion" test: will a consumer be misled to believe that the SKU Al is selling contains the official meat or silicon? That would be trademark infringement. In TFA, the natural gas trademarks are merely listed as "featured partners" so there's not much likelihood of confusion where a consumer would be misled into thinking that they'll get genuine natural gas from this unauthorized merchant, in my estimation.
My only nitpick is to remove the word "only" because there is at least one other possibility where he's "covered" in the sense of not legally needing permission: whenever his work falls short of copying the words and/or melody of the original song. If he modifies the melody enough (there's no specific threshold, but let's say he avoids a run of 4+ notes with intervals identical to the original work) and also doesn't copy lyrics or any other copyrightable aspects, then he's covered. It's very possible to achieve a song that makes your audience know exactly what you're going for, without copying any of the copyrightable aspects: you can take the chords, rhythms, instrumentation, accent, etc.
In the case of Smells Like Nirvana, he takes the copyrighted melody, which would require permission but for the exception you pointed out.
The article doesn't touch this issue, they just mock the gas companies. Not a real article, just another slam piece couched as journalism.
They obviously were. It's a parody of carbon offsets.
In Australia I suspect defamation or misleading and deceptive conduct under our ACL might be possible avenues for the gas companies, although under the ACL the impugned conduct must be ‘in trade or commerce’ so that could be one problem with going after an ‘activist group’.
Couldn't this activism have been just as effective, if done without libel?
We're in the AI counterfeiting era now. It's time to be more conscientious about false accusations.
"It's OK when I do it, because it's protected parody/satire! But when other people do it, to smear my business, or my friend, or my favored political candidate, by name, and they claim it's parody/satire, it's not OK, because... uh... reasons!"
If we think we're entitled to do it, can we complain when millions of others then also do it?
(btw, what is the name of this logical fallacy that assigns two beliefs from a population to the population as a whole? It seems like a variant of No True Scottsman but maybe there’s a more precise label for it?)
Obviously, we collectively have those conflicting beliefs.
And I suggest that collectively resolving these is going to be forced by AI fakes and social media.
It's a bit like the argument "sure, Black Lives Matter, but do they have to be kneeling during a football game?" Protests are fine, as long as they never inconvenience anyone, are never loud or obnoxious, are never seen nor heard nor felt. Well, then, they're not protests, they're LARPing.
I get the feeling that in practice, those "uh... reasons" will turn out to be blatant. As in: one is obviously an attempt to scam and defraud people, and the other is an obvious parody. And obviousness matters: the crux is whether it's likely to deceive a "reasonable person" or not. You can like or hate that criteria, but that's been consistent since trademarks were invented.
From the FAQ: Where does my money go?
Your purchase is supporting Life-Positive projects that increase life among HLV individuals across the United States. These projects include massage, sauna, and vital fluid transfer.
On a related note, I hosted The Empire Strips Back parody Star Wars burlesque show at my theater, and they had to have disclaimers everywhere explicitly saying it was a parody production. They got sued and won in court but the disclaimers were an important part of that.
Of course if the main concern is the misuse of the DMCA to get this taken down by claiming copyright infringement, that’s clearly an abuse of the DMCA. But if the companies involved sued for defamation/slander/whatever, I think there’s at least a legitimate concern here.
Also, the DMCA was not involved (though it's not clear that Netlify was aware of that).
We're targeting the wrong layer with our concerns about free speech. We should regulate hosting providers and enforce free speech on hosting providers, not on social media websites. People should have a right to host their content somewhere, but not the right to violate Twitter's ToS.
Unfortunately, relatively nobody cares about hosting. If Twitter bans a journalist people get upset, if Netlify caves to a slight bit of pressure takes a journalist's website down, nobody cares.
Not going viral when I can't share it in good conscience.
Filing a DMCA claim over a trademark violation is a direct admission that that statement is false because the requirement is you identify the copyright violation and that you are the owner or representative of the owner of that copyright.