The NRA Strikes Back, Downs 38,000 Sites in ‘Yes Men’ Parody Counterpunch

You may have seen our report on the Yes Men’s spoof of a nonexistent NRA/Smith & Wesson program here. Motherboard now reports that “38,000 websites hosted by the automated publishing service Surge went down today, after the National Rifle Association sent a legal notice over a parody website created by the Yes Men.”  As you might expect, the NRA didn’t take kindly to the appropriation of their logo and false claims of their involvement in the unintentionally on-point agitprop.

According to a series of tweets from the Surge twitter account, the NRA sent a legal complaint to Cloudflare, which then forwarded it to Digitalocean. Surge responded “within 22 minutes.” Digitalocean asked Surge to provide counterclaim documents. Some minutes later, Digitalocean shut down Surge.sh. According to Surge, 38,000 sites became unavailable.

Although Surge referred to “counterclaim documents,” which sounds like part of the DMCA notice-and-takedown process, other sources say that the legal complaint sent by the NRA was not a DMCA notice, and was likely based on trademark law.

But wait! Why is the original Yes Men video still up on YouTube? Glad you asked.

There’s a reason why the Yes Men video is still up on YouTube and why their Digitalocean-hosted, Cloudflare-distributed site is down. After over a decade of sparring with rights holders, YouTube has a robust team of employees whose job it is to deal with legal disputes over content. Maybe sometimes they still make the wrong calls, but the company has manpower and experience.

Motherboard must mean like the time the brain trust at YouTube took down firearms reviewer Kickok45’s high traffic channel for no good reason at all, driving him to Full30.

Oh, and in case you were wondering, just like terrorist attacks, homophobia, global warming, the Zika virus, and pineapple pizza, according to Motherboard, this is all the NRA’s fault.

Services like Digitalocean might have dedicated teams handling DMCA notices, but employees might not be able to handle a more unusual variety of complaint. The NRA got Digitalocean to choke up and hit a panic button, sending 38,000 websites into purgatory.

Most of the Surge websites went back up around 3:30 PM PDT, but the Yes Men website is still unavailable—successfully censored, for now, by the National Rife Association.

comments

  1. avatar peirsonb says:

    It’s there anything those evil bastards at the NRA won’t do? I mean, come on. Demanding a libelous, trademark infringing site be taken down? This just shows the depths they’ll sink to in order to force someone to FOLLOW THE FREAKING LAW.

  2. avatar Geoff PR says:

    What would be *awesome* is if that snark backfires and actually kick-starts that very program…

    1. avatar Jeremy S. says:

      Yeah, the program is a great idea. In fact, very similar things have actually been done: https://www.facebook.com/TheArmedCitizenProject/ …google Armed Citizen Project and there are all sorts of news articles on them.

      From Wiki:

      The Armed Citizen Project is a nonprofit organization, founded by Kyle Coplen, based in Houston, Texas. Their goal is to distribute shotguns to people in mid-high crime neighborhoods, mostly single women. The organization offers firearms to citizens that can pass a background check and take safety, legal, and tactical training. They also claim to be collecting data for completion of a policy study, that measures the effects of firearms on crime rate.[1] The group hopes to expand its training, and shotgun givaways, to Dallas, San Antonio, and Tucson. Coplen has stated that it costs the organization about $300 USD to arm and train one person, and to arm and train a neighborhood costs the organization about $20000 USD. All of the money for the program comes from donations.

      1. avatar Alan Longnecker says:

        We need branches in every state.
        Are there any crowdfunding sites NOT run by statist enablers?

    2. avatar Keith says:

      What would be “awesome” is the fake websites being sued into bankruptcy and having to pay NRA’s legal fees. Now that would be awesome.

  3. avatar Bob316 says:

    The NRA, just like any organization, takes the use of their logos and whatnot very seriously. If a business or non-profit does not take it seriously, eventually, they will lose legal control over it. I am an “NRA Certified Instructor”. Do you know why I do not say I am an “NRA Instructor”. I use a logo specifically designed for NRA Certified Instructors. Do you know why I do not use the official NRA logo? Branding is an organizations identity. It has tangible value in the marketplace. It identifies that organizations product. Anything that has that logo can be construed as representing that company or organization. So, the NRA has legal and moral standing to send their lawyers on the attack. Personally, I hope the NRA goes for every cent they can get from these organization, and frankly, I think they could. On another note, although “NRA” sounds like the typical three-letter-acronym of a government agency, they are a private, non-prophet organization, so how can they claim that the NRA censored this video?

    1. avatar Andrew Lias says:

      Personally I’d like to see them unmask who’s actually paying them. They have to have a decent production cost. That smacks of Bloomberg tbh.

      1. avatar uncommon_sense says:

        The level of detail, accuracy, and sophistication in that video is rather amazing … and had to cost thousands of dollars. Furthermore, whoever wrote, directed, and produced that video did their homework … again costing thousands of dollars.

        Taken as a whole, this video tells me that our detractors are going to new levels and have a serious bankroll behind them. We would be wise to reconsider our historical view of our detractors as nothing more than emotional, ignorant (with respect to firearms) loudmouths who will never do anything more than whine and complain.

    2. avatar 16V says:

      Just because you like the bully, and hate the victim in this case, doesn’t make Fair Use for the purposes of comedy or satire any less relevant.

      “First they came for the anti-NRA satire…”

      1. avatar Dev says:

        Except this is not a case of satire, it is a case of direct and intentional misleading.

        1. avatar 16V says:

          It is comedy. That we don’t like it (or some don’t even get it) is not relevant to the law. And the law states it is Fair Use.

          Just remember this when someone is trying to take away your rights, because they don’t like the joke.

        2. avatar Ragnar says:

          Some seem to think that just because it is made to be humorous, it isn’t damaging. There are a great many kids out there that were bullied, but a lot of kids were laughing while it was going on. Since it was funny to some, I guess no harm, no foul?

      2. avatar pwrserge says:

        Satire does not cover libel. There was no indicator in the video that this was a parody. Every effort was made to make it look legitimate.

        You can’t take somebody else’s IP or trademark, and then claim Fair Use to cover your ass.

        It doesn’t matter if the joke is funny if it is not presented as a joke.

        1. avatar 16V says:

          Sergei, It looked as “real” as those old SNL ads parodying a Citibank campaign from the 90s.

          Nobody with 3 extra IQ points looked at that as anything but satire. They may have agreed with it, but they knew it was satire. You didn’t believe it to be real, I didn’t believe it, no one in their right mind would believe it.

          This reminds me of Falwell suing Flynt over that one fake ad.

          To paraphrase – I may not agree with the satire, but I will defend your right to make it with my life.

      3. avatar Kirk says:

        Fair use for satire, criticism, review etc applies to copyrighted materials, not a trademark like the NRA logo, name etc.

        I release you may not understand the difference but there is no fair use for satire provision for trademarks.

      4. avatar Second Amendment says:

        So many internet lawyers opining…. No, parody is NOT a defense to trademark infringement WHERE THERE IS A LIKELIHOOD OF CONFUSION about the mark. In this Yes men video there is an overabundance of evidence for likelihood of confusion, including the use of the ACTUAL trademarked logo of the NRA and very little to dispel the notion that this was not some costumed yokel speaking on the NRA’s behalf. Trademark cases have ruled in favor of the plaintiff for MUCH less than this. This is trademark infringement UNPROTECTED by a parody defense.

        1. avatar 16V says:

          Yeah, You would have been on Gerry Falwell’s side. History speaks to how your immense legal prowess would have fared.

          It’s been done time and again, and the courts rule in favor of the humorist. Give it a rest F. Lee. Don’t you have a bottle of scotch and a DWI to get to?

  4. avatar Andrew Lias says:

    A counter Claim notice is part of the DMCA process. This basically is the customer’s proof/statement they are legally entitled to have the content in question up. They likely don’t have a leg to stand on with this one.

    In terms of surge.sh going down, not the stupidity of the NRA at all but rather the stupidity of Digital Ocean which should have sent notice to the respective domain holder to take it down.

    The Youtube video may take longer to process especially if they don’t have a “just yank it down” attitude like Digital Ocean did. In most cases the actual owner of the content is given a period to respond. Not necessarily written into the law but certainly is considered protocol in general.

    My opinion is that surge.sh needs a new web host.

    Here is precedence from a case involving Hustler and Jerry Fallwell:

    http://www.firstamendmentcenter.org/parody-satire

    Issuing a directed verdict in favor of Hustler on the issue of invasion of privacy, a federal district court also ruled against Falwell on his libel claim because, the court said, no reasonable person would believe the situation depicted in the ad to be true. The court did award damages for emotional distress, however.

    On appeal, the 4th U.S. Circuit Court of Appeals affirmed the lower court’s judgment, declaring that the issue was whether the ad’s publication was sufficiently outrageous to constitute intentional infliction of emotional distress.

    However, the U.S. Supreme Court found to the contrary. The high court held in its 1988 decision that public figures and public officials could not recover damages for the tort of intentional infliction of emotional distress without an additional showing that “the publication contains a false statement of fact which was made with ‘actual malice,’ i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true.”

    What is interesting to note here is that the basis of it being parody vs defamation is the idea that people know it’s parody. The web site in this case could be considered to breech that line becuase they retained a full scraping of the NRA’s site down to the copyright at the bottom. Nothing on the web page its self indicates Parody nor would a person looking at the site with the URL bar blanked out be able to discern it as such.

    1. avatar 16V says:

      And yet, in the Internet Age, no reasonable person would consider it factual.

  5. avatar formerwaterwalker says:

    FINALLY-the eeeeevil NRA ACTUALLY has the power ascribed to it…where’s my machine gun? Slow clap…

  6. avatar 16V says:

    It is truly funny that they are using Reagan – that is some serious meta that is way beyond either of them.

    Reagan was an enemy to firearms and their owners since he was merely a governor screwing up a state, let alone before he got to be President, and screw up an entire country. St. Ronnie was one of the most anti-gun Presidents in history, and as much as we all hate Obama, the fact is that Reagan took away our new full-auto guns – not Barry.

    Oh yeah, and it’s still Fair Use. The NRA got some pansies to flinch (as big corporations often do in these cases). It’s a parody, and just because we don’t like it, doesn’t mean we take away someone’s rights.

    1. avatar Wade says:

      Thank you! I’m glad somebody else finally said that Reagan wasn’t a friend to the gun owner! I get so tired of pro gunners touting the 1986 Gun Owners “Protection” Act as a good thing. It was just another piece of garbage legislation that slowly chipped away at our rights. Backed, I might add, by the NRA!

    2. avatar jwm says:

      Yep. Just a parody that is being used to help take our rights away. We should respect their rights while they’re destroying ours.

    3. avatar Cliff H says:

      From: http://legal-dictionary.thefreedictionary.com/Parody

      Parody
      A form of speech protected by the First Amendment as a “distorted imitation” of an original work for the purpose of commenting on it.

      So what exactly is the original NRA work that this group is supposedly making a parody of? Buehler?

      There is no such work. Therefore, this is not a parody, it is libel and misuse of trademarks and logos.

      I am not a lawyer, but Google is a powerful rebuttal to ignorance. Any lawyer on site able to give an opinion on this?

      1. avatar 16V says:

        Cliff, if you think that is the applicable definition in this case, you need to do a bit more research on the concept of Fair Use.

        1. avatar Cliff H says:

          See disclaimer above – I am not a lawyer. I was, however, a paralegal back in the 90s. Perhaps you need to do a little more research on trademark law before spouting Liberal talking points.

          One of the major purposes of trademark protection is to prevent your competition or enemies from damaging your business by misappropriation or misrepresentation of your brand. I think maybe even the Liberal Justices in SCOTUS could figure that one out.

          I worked for Computown on the west coast, we sold a full array of computers and software, including Apple. We were sued by Computertown from the East coast, they sold ONLY Apple computers. There trademark was approved 3 months before ours – they got an injunction and a $100,000 damage assessment in the settlement. Ruling: we were infringing on their trademark.

          Since the video in question is in no way a legal parody of anything the NRA has produced the producers have no legal claim to “fair use” of a trademark if their obvious intent is to undermine the brand resulting in financial loss and loss of public goodwill.

          Any (actual) lawyer feel free to jump in if I have his wrong.

        2. avatar BDub says:

          Use of Trademarks does not fall under Fair Use.

        3. avatar RealityCheck says:

          >> you need to do a bit more research on the concept of Fair Use. <<

          You keep using those words. I do not think they mean what you think they mean.

          There is no "right" to "Fair Use". Fair Use is a defense one can employ in court to justify why they violated another person's copyright. And there are very strict restrictions on what you can do, how much of a work you can use, and what purpose you can use it for. An example of a defendable "Fair Use" situation would be to do a book review, and say "This author is an idiot. Certifiable. Here, look at this passage for one example of their profound stupidity" and then quote a SMALL section, maybe a paragraph at most. That would fall under "Fair Use".

          Misappropriating someone's trademark? Not so much.

        4. avatar 16V says:

          Holy keyboard commandos. We’re talking the difference between “parodies” and.”satire”. I can take a steaming dump on all your copyright – if a reasonable person sees it as comedy. Been that way since before most of you legal experts were born.

          Here’s a little light reading for the wannabe lawyers and legal analysts.

          https://apps.americanbar.org/litigation/committees/intellectual/roundtables/0506_outline.pdf

          https://en.wikipedia.org/wiki/Fair_use

          http://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/

          Do get back to me legal genii, how this painfully obvious attempt at humor (however lame) is not frakkin’ Fair Use. Consider the source alone.

    4. avatar Heartland Patriot says:

      Ah, yes, parrot the Democrat Party line and do their dirty work for them. The reason the full auto registry got closed was because of the Hughes Amdendment designed to kill the Firearm Owners Protection Act of 1986. The FOPA was a hard-earned bill that reigned in a lot of the overreach and excesses of the Gun Control Act of 1968. Hughes and other libs wanted the FOPA shut down, so he used a trick to add it on at the last minute as a poison pill to stop Reagan from signing the bill into law. Reagan signed it anyway, infuriating liberals. Go read the story (on the NRA-ILA website) and stop perpetuating that it was done ONLY because “Reagan hated guns”.

      1. avatar 16V says:

        Democratic party line? Wow, the brainwashing and rewriting history has worked wonders on this one.

        This is what he did as governor of CA

        https://en.wikipedia.org/wiki/Mulford_Act

        Great supporter of freedom, huh?

        Since you apparently weren’t alive during the years of Reagan, please go read some history of what he actually did. He was not our friend, unless it was politically expedient to say something pro-gun. The rest of the time he acted against our interests.

        1. avatar Cliff H says:

          Reagan was a Democrat for a long time. At a point where he saw the Democrat political machine for the corrupt organization it was in California he had an epiphany and began researching the conservative side of politics, at which time he switched party affiliations.

          Pro and anti-gun sentiments were not the priority at that time as they are now and they were certainly not a priority for Reagan who was more concerned with economic recovery than attacks on the Second Amendment. Without a Republican Congress to back his play his support of the NFA was probably akin to Clinton’s support of Welfare Reform – politically expedient in order to get some other part of the agenda through a hostile Congress.

          Was it a mistake? Possibly. Could it have been avoided without repercussions in other areas? Most likely not. See previous post about Margaret Thatcher and compromise.

        2. avatar formerwaterwalker says:

          Completely agree… and I get tired of the Right quoting Reagan. You are what you do-not the lines you spout. I got excoriated yesterday because I dared blame Republicans (mostly W) for the PatriotAct/Iraq War/Afghanistan adventure. W was no friend of ours either…grossly overreacting to some moose-lims with box cutters.

        3. avatar 16V says:

          CliffH, I get it – you’re another Reagan apologist who never had to live through his traitorous reign, and believe all the BS about St Ronnie. Got it.

      2. avatar Ryan says:

        Reagan didn’t believe that citizens had a need for full auto firearms. So he was fine with FOPA. So what exactly did we get from FOPA that was so grand?

        1. avatar SteveInCO says:

          “The Firearm Owners Protection Act of 1986 (FOPA) addressed the abuses noted in the 1982 Senate Judiciary Subcommittee report. Among the reforms intended to loosen restrictions on gun sales were the reopening of interstate sales of long guns on a limited basis, legalization of ammunition shipments through the U.S. Postal Service (a partial repeal of the Gun Control Act), removal of the requirement for record keeping on sales of non-armor-piercing ammunition, and federal protection of transportation of firearms through states where possession of those firearms would otherwise be illegal.[”

          Honestly? That positively affected FAR more people than a ban on new machine guns being added to the registry hurt.

          Although FOPA wasn’t an unmixed blessing by any means, it was far from the total disaster some here try to paint it as; it was almost certainly a net positive.

        2. avatar 16V says:

          Says you and the rest of the propagandists.

    5. avatar Sian says:

      Arguing fair use on a piece like this is doable, but it seems an awful big stretch.

      what I’m saying is, there’s enough grounds to poke around at the possibility of a libel suit here. Whether it’s provable or not is wobbly, but it’s certainly beyond what one would consider as parody.

  7. avatar Mk10108 says:

    I’m ok with a gay inspired handgun…mauve back straps anyone?

    1. Will it prevent failures due to limp wristing?

  8. avatar tdiinva (Now in Wisconsin) says:

    The NRA or any private organization does not have the power to censor. What they do have is the ability to go to court to protect their copywrites and trademarks.

  9. avatar BDub says:

    As with most liberal screed, it manages foremost to be elitist and rascist.

  10. avatar Roymond says:

    What a waste of a golden opportunity.

  11. avatar Geoffrey Hoffman says:

    This is the same vein as when Samantha Bee had a segment where she found it harder to buy an Eddie the Eagle constume than to buy an assault rifle, not understanding that one of them was a trademarked entity, and the other was a constitutional right.

    How dare the NRA defend their intellectual property!

  12. avatar jsallison says:

    Wait a minute. The NRA was responsible for pineapple pizza??? D@mn them!!! D@mn them @11!!!

  13. avatar Hispanic says:

    Did anyone else notice him say LGBLT at 2:24????

  14. avatar YZAS says:

    If I were the NRA, I would sue these c@cks*ckers until they didn’t know what hole they were sh*tting out of.

    …oh wait, i AM the NRA

    1. avatar peirsonb says:

      I thought I was the NRA….

  15. avatar Mikial says:

    Cue the NRA haters.

    You people are funny. The NRA has fought the fight for decades and stood up to the gun grabbers and all some of you can do is continue to dis the NRA. So what, exactly, are all of you doing to preserve our Second Amendment rights?

    Please, enlighten us.

    1. avatar 16V says:

      Until a very recent change of tone (not actual change) the NRA were a bunch of restriction-loving Fudds.

      That has factually changed very little.

      1. avatar Mikial says:

        Well, what exactly have you done to fight the illegal attempts to strip us of our rights?

        1. avatar 16V says:

          What have I done?

          Paid a bunch of money to those who actually fight for our gun rights.

          Et tu?

  16. avatar LHW says:

    Good for the NRA. I hope they sue them out of business.

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