> This isn't entirely correct. Per the DMCA (or, really, the Online Copyright Infringement Liability Limitation Act - OCILLA), the hosting provider must comply with a takedown notice should they receive it, regardless of how idiotic it appears...

That's BS.

The hosting provider has every right to support their customer and keep the notice up. We've gone to court rather than do a takedown and prevailed on court costs, and we've persuaded upstream (colo and backbone) providers served by the same takedown notices to leave customers alone (e.g., not blackhole an IP) as well.

Btw, the number one most effective takedown avoidance tactic is to be an absolute stickler for the letter of the takedown requirements. We can usually get 5 or 10 business days of back and forth on our customers' behalf before the takedown mills manage to generate a fully compliant notice.

And if this notice really was just about a review mentioning a product by name, we would have ignored it or at the very least asked the sender to explain under penalty of perjury why the content was not protected under fair use.

Disclaimer: We're a registered hosting provider under the DMCA.

The provider does not have to take down the content. It's not doing so only affects whether it can raise the safe harbor defense of the DMCA in a subsequent suit. A simple reading of the notice would have revealed that it was invalid and thus could not possibly sustain a suit for copyright infringement. Indeed, since the DMCA safe harbor doesn't protect a hosting company from being sued for trademark infringement, the hosting company didn't even really cover its ass, legally, in this situation. If GoPro had sued the hosting provider for trademark infringement, its responding to the DMCA takedown notice would've had no relevance.

Pure BS. You can ignore legitimate DMCA notices, and there is no punishment for that per se at all. But then you are not immune from the contributory infringement liability in case it goes to court. If you obey the notice, then you cannot be sued. That is the difference. Spreading this false information here is actually harmful for the web community, since it encourages free speech suppression tactics by sending deficient copyright notices, by instilling fear in webmasters without access to proper legal resources. I wonder if your throwaway handle was created with that in mind.

Also, the note in question is clearly defective, since it does not properly identify copyrighted material to be removed. The fact that Softlayer threatened to turn off the service due to a defective notice means that it cannot be used as a reliable ISP. Use FusionStorm, they actually read and comprehend DMCA notices, and in cases like this do not even contact their customers.

But the takedown notice doesn't actually claim any content infringes on GoPro's copyrights, does it? There are zero allegations of copyright violation listed here, so it seems like zero pages should have been taken down. Is that not right? (Not a lawyer, just a question.)

>Per the DMCA (or, really, the Online Copyright Infringement Liability Limitation Act - OCILLA), the hosting provider must comply with a takedown notice should they receive it, regardless of how idiotic it appears, so long as the content that is claimed to be infringing is hosted by the provider and the notice is completed.

I don't think that's actually true in this case. The actual language of the law says that for a notification to be effective under the law, it must include identification of a the copyrighted work infringed. Since this notification does not identify copyrighted work (and explicitly refers to trademark), it technically isn't even a DMCA takedown notification, as defined under the law.

Probably not worth it to risk, but the notice from GoPro did not identify any copyrighted works that were being used. They only identified trademarks.

This is what I was wondering.

Maybe they decided to use the trademarks on the names in the article? Sounds like a catch22 if you ask me. Put the trademark on the word and they serve you up a DCMA. Don't put it on and then you rise the ire of GoPro since you didn't use the mark on the trademarked names of their products.

Eh, what a hassle.

Trademarks aren't copyrights, and trademark law is separate from copyright law right up to them being authorized by different sections of the US constitution. The DMCA is a copyright law and has no bearing on trademark issues, and there is no analog in trademark law for the DMCA takedown/safe harbor procedure beyond traditional C&D letters. To properly analyze who has what rights here, you need to completely ignore everything related to the DMCA, and then you come to the conclusion that a product review that properly identifies who made the product is of course free to use the trademarked name of the product to discuss it. (And little TM and (R) symbols have nothing to do with it.)