It's against DO's terms of service to "use the Services in violation of the copyrights, trademarks, patents or trade secrets of third parties", which appears to be the issue here.

https://www.digitalocean.com/legal/terms/

> Effectively their trademark policy is to automatically side with the trademark holder, irrespective of fair use[1] (see page 9+).

Did you miss that? It's not infringement if it falls under fair use. They were not following their TOS because they did not confirm the content was infringing a copyright

> if it falls under fair use

i'm under the impression that "fair use" is a defense and/or judge's assessment, rather than something "civilians" can factually declare.

The same is true of "violation of the copyrights, trademarks, patents or trade secrets of third parties".

hence when a DMCA takedown is received, i don't see how DO is in a position to assess that something is or is not a violation. they simply follow the process outlined in the legislation.

An that process has a provision for the customer to file a dispute and this obsolves the host and sends the matter to court. Ot did you Miss that comment?

sure, a claim can in turn result in a counter claim. i'm not sure why you're asking if i missed such a comment.

> But that also assumes DMCA which, if memory serves, was not in play here.

Expecting a hosting provider to wade into fair use waters hand-in-hand with you is generally unwise.

The vast majority will not unless you are a large customer with your own legal staff on retainer to provide the appropriate legalese/notices/etc.

I don't expect that, but I do expect that a company not immediately kowtow to an infringement request if there is some ambiguity as to whether it's infringing.

That said, the original reporting on this and the statement from DigitalOcean are at odds (Motherboard's update with DO's statement), and since I haven't verified either, I'll retract any specific support for either side of this particular instance.

> I don't expect that, but I do expect that a company not immediately kowtow to an infringement request if there is some ambiguity as to whether it's infringing.

That requires money for a lawyer to evaluate it. If the customer has their own legal staff that does this and relays that opinion to the host, as well as being large enough to cover any legal costs DO might incur, DO would be fine with it.

You are basically saying you are entitled to using DO's legal staff and financial resources in addition to the hosting you've paid for.

> You are basically saying you are entitled to using DO's legal staff and financial resources in addition to the hosting you've paid for.

No, what I'm saying is that DO must already do this to some degree if they are handling requests, as otherwise I could send letters claiming trademark/copyright infringement for any number of things and get many customers shut down. If they have internal guidelines for what they do in cases when trademark/copyright infringement, I expect they follow those. I also expect that those policies do the minimum legally required of them. That's not because it's cheaper and garners good will from customers (it does), but because to do otherwise is taking sides in a legal situation without being an appointed arbiter of the law. Not only is this excessive, but it's anti-customer.

If DO is doing what they think they must by law, I have no problem with that, as long as that is clearly explained. In the case we were previously talking about, the statement from DO (at the motherboard article) is somewhat ambiguous as to why they did what they did. Per DigitalOcean’s terms of service, a final reminder was issued to our customer and, when no action was taken, access to the content was disabled. Was the take down required by law, or was DO overly aggressive in handling it? Without a statement as to why, (and I think that given some people's assertion that they went beyond what was legally required of them), their reasoning is somewhat ambiguous, and harder to call into question. If they clearly define they enforced their TOS based on what they believe is a legally required of them, then we can look at the law and their actions and evaluate whether that's true, and if it's not, DO can learn from the experience or be called out as a company that is capricious in their execution of the law.

What it boils down to is that "We received a complaint infringement. We enforced our TOS and shut down access to the content in question." leaves a lot open for assumption. I would be much happier if it was "We received a complaint infringement and as we believe is legally required of us we enforced our TOS and shut down access to the content in question." It's a small change, but it allows customers (and critics) a much clearer view on how DO handles situations like this, and allows for the public to make an informed choice on whether they think DO was correct in their actions (whether they really were legally required to do so). It's subtle, but I think it's a very, very important distinction.

I agree, but why not just take action based on the only things you have to? Namely court orders and DMCA notifications. It seems like a more complex balancing act to assume that any notification you receive is in good faith.

The primary thing commentators on HN don't acknowledge is that dealing with legal issues, whether in court or phone calls/letters, costs money and time. That takes a company away from their core objective of delivering service to their customers (in the round) and making a profit. Most companies would rather spend their money on product/customer development than hire more lawyers. But, there's a lot of low-level 'rights holders' hassle for many digital companies. A steady and constant stream of Copyright and (separately) DMCA take-down notices. When I was in a service provider we didn't think it was our job to resolve those issues (it's for the end-user site to defend whether it is or is not copyright infringing) because we were just providing a service: as a SP you're just caught in the cross-fire.

It comes down to them making a risk assessment on whether they're more likely to incur cost from taking down versus ignoring. In some cases the balancing act is due to the nature of the outcomes: on the one side if you do nothing it's unlikely (low probability) but you could land-up in court and incur millions, versus on the other side refunding a customer their annual subscription and taking a reputation hit - it's the asteroid crash problem. It's notable that they asked their customer for a response and didn't get (what they consider) a satisfactory one. Who knows the specifics in this situation, but they won't have done it just on a whim!