Since it was last weekend that I decided to terminate my Voat News series in favour of individual, event-based posts again, I neglected to actually report on a major event that took place within that week -- namely, a trademark takedown request from Black Rifle Coffee Company.
Before we begin, please note that all of this is speculation on my part based on minimal research done, so take everything I say with ample grains of salt.
Here is the announcement where Putt explained the issue as it arose (briefly, that a user with the name of the company existed and that the company wanted it to no longer exist); at the time of posting the announcement no action was taken by Voat to respond to the request(s).
In response to the announcement, many users reacted with outrage, cursing the name of the company and claiming they would boycott it. While this reaction is understandable, I have to say that I cannot entirely view the company's actions as intentionally harmful to Voat. It is likely that some members of the company were made aware of the username, decided that it would look bad for their image to be in any way associated with Voat, given the kind of content that is daily on Voat's front page, and so sought whatever legal means were available to them to have the username removed. Many other users responded by claiming that the company had no legal right to make such a request of Voat; whether these claims have any merit is unclear to me.
Putt did refer to the takedown request(s) as "DMCA", which caused many users to object, stating that DMCA does not cover trademark infringement. Putt did respond to this by stating that such requests can fall under DMCA when taken far enough. As far as the vernacular goes, I can certainly see this being the case. As far as the law goes, all of my researches seem to indicate that a DMCA takedown concerns only the removal of content from a website by request of the owner of the content or the content's copyright. DMCA stands for Digital Millennium Copyright Act, after all. As I understand it, "Black Rifle Coffee Company" is a trademark only, and cannot fall under copyright because it is not a work of content, but a name, so when considered formally or legally I don't think DMCA applies -- but Putt has stated that his use was "simple observation based on what I've witnessed and how the industry generically refers to these matters", which leads me to interpret that members of the industry must sometimes use the term incorrectly, unless I am misunderstanding something.
Many of the users who objected to the idea of the company issuing a DMCA takedown request for a trademark mentioned something known as a "section 512(f) liability", which is referenced here when describing a case between CrossFit and someone's CrossFit blog and Facebook page. The blogger won the case at the federal level because CrossFit was asserting a copyright claim by going through DMCA, which does not cover trademark. We can also see that Medium.com separates their takedown requests by "DMCA copyright" and "trademark".
Why is any of this important? Personally I think it is important for all of us to understand exactly what kinds of pressures to which Voat can legally become subject, because these claims are only likely to increase as Voat continues to grow. Do we have to worry about using any trademark within our own comments and submissions, for fear of takedown requests? We will explore that in a moment.
First I want to point out that Putt did state in the comment I cited above that in his announcement he presented only one of the requests received, obviously implying that more than one request was received. What these were, we do not know. Perhaps they were similar enough to the first that there was no use in presenting them also; perhaps there are some legal reasons why the other requests cannot be presented (but if this were the case it would be nice if there were some way the userbase could be informed; this brings me to another point about the Canary later); or perhaps these requests were legally copyright claims, but these would surely have had to apply to more than just a username (and I'm sure if the other requests differed that much from the one presented, Putt would have shared them as well if he were legally permitted to do so).
So what do we know about the claim that we did see? It was a trademark infringement claim; it would have to be in order to takedown what (probably?) cannot be construed as anything but a company's trademark. Trademark infringment may occur "when one party, the "infringer", uses a trademark which is identical or confusingly similar to a trademark owned by another party, in relation to products or services which are identical or similar to the products or services which the registration covers." I italicized what I perceive as the important part of this type of infringement. For a company to be able to issue a takedown request to anyone who uses their trademark would be absurd; no one could so much as discuss any company in a public manner whatsoever. In fact, all of the reaction posts to the Black Rifle Coffee Company made on Voat in the wake of Putt's announcement would be subject to trademark claims of their own -- would again would be absurd. So how is a Voat username related to products or services offered by this company? I think the issue is that it was a user, something invariably associated with a person or with people, and an onlooker could in no way immediately distinguish this user from an actual representative of the company. For reasons stated above, the company did not want consumers to associate their brand with Voat, which allows very politically incorrect content to grace its front page every day. If a case could be made that the user in question was pretending to represent the company, then this could easily fall under some kind of protective legislation, against impersonation if not trademark infringement (and impersonation takedown requests might have been among the others Putt received).
Perhaps, if we approached this issue from a defensive legal standpoint, we could find that the claim we were shown (a trademark infringement takedown request) has no legal basis because Voat does not purport to sell coffee, or because the user in question did not so purport. Or we might find that it does "count". In the former case, we might nonetheless find that a separate request concerning impersonation would certainly apply.
What action was actually taken, ultimately? This is what matters most to we the users, and to Voat, the freedom platform. Putt edited the above-cited announcement twice to say:
Voat has reluctantly complied with this request. Access to 'claimed infringement' has been disabled.
TL;DR: Account was already wiped as user had deleted the account months ago (i.e. Voat did NOT delete any submissions or comments). Actions against Voat continued despite this. Voat made the account 'disappear' after posting this submission in order to fully comply with request.
In this particular situation, given the context and all things considered, this is the best option for Voat.
As I stated above, perhaps Voat could have combatted one or two of the claims, and won. Perhaps Voat could have done so and lost. If a claim was made that does taken impersonation into account, it is unlikely that Voat could have won. Given that the account in question had already been deleted, removing the account from Voat's database to satisfy the concerned company would certainly be the simplest path forward, especially considering that failing to defend the existence of a deleted impersonator does not contradict Voat's core principles, at least as I see it. In no way did any of the action taken remove speech. Here is a post that (I think) was made by the user in question shortly before deleting his own account; as we can see, the post remains, and username is replaced with
[deleted] as is the case with any deleted submission. Only the user profile page has been deleted.
The editted announcement was unstickied shortly after the edits were made, resulting in many users not knowing what action was ultimately taken. It is important for we as a community to understand the limits of the law, not just in terms of illegal content, which most of us are aware of, but also in terms of copyright, trademark, and impersonation law. What we can take away from this event is not that freedom of speech is threatened on Voat, or that we cannot write company trademarks in our posts to Voat, but that we as users must understand that misrepresenting or attempting to impersonate companies or people, or posting copyrighted material, could easily lead to our content being taken down, or require that our usernames be changed.
Stay vigilant, goats.