Once Again, DMCA Abused to Target Political Ads
If you live in San Francisco (or spend much time on social media) you probably saw a lot of discussion last month about Proposition F, a controversial proposal to regulate short-term property rental services like Airbnb. You may also know that Airbnb spent millions opposing the measure, many times the budget of the proposition’s supporters. Here’s what you might not know: the bill’s opposition also got a little unexpected assistance from the DMCA (Digital Millennium Copyright Act) takedown process.
Just a week before the vote, the only television ad supporting the measure disappeared from TV, YouTube, and the website of the organization that created it. Watch the ad yourself and see if you can guess why:
Did you catch it? The “Hotel San Francisco” lyric and the soundalike background music were enough to earn a cease-and-desist letter and DMCA takedown notice from attorneys representing The Eagles’ Don Henley and Glenn Frey. Henley and Frey’s lawyers threatened to sue for massive damages if ShareBetterSF didn’t pull the ad.
If this story sounds familiar, that might be because political ads are often the targets of unfair DMCA takedowns. In 2008, the Obama and McCain campaigns were both hit with takedown notices for using news footage in their advertisements (from CBS and NBC, respectively). In 2009, NPR filed a YouTube takedown notice on an ad that criticized same-sex marriage; the ad had used a brief soundbite from an NPR program. In all three cases, a court would have recognized that the campaigns were within their rights. The ads use the clips simply to provide information; they don’t imply the news organizations’ endorsement or affect their viewership in any way. But thanks to the DMCA’s takedown-first-and-ask-questions-later procedure, none of them ever went to court.
The makers of “Hotel San Francisco” were clearly in the right too, but it didn’t matter. As they told the Internet Archive, there was no purpose in challenging the takedown. Even if they had immediately counter-noticed, the ad still wouldn’t have been restored for 2 weeks—too late to have any effect on the election. Once again, the DMCA was used to shut down political expression with no consequences for the sender. As the 2016 campaigns get into full swing, expect to see more of this kind of abuse.
This story might give you déjà vu for another reason: it’s not the first time Don Henley has accused the creators of a satirical political ad of copyright infringement. In 2010, Henley sued Senate candidate Charles DeVore for his parodies of two songs in political advertisements. A U.S. District Court rejected Henley’s claim that the ads falsely implied that he’d endorsed DeVore, but ruled that they did constitute infringement of his copyright.
We disagreed with that ruling, but whatever you might think of it, the facts here are very different. ShareBetterSF selected “Hotel California” to make a specific political point. The use was noncommercial and highly transformative, and it couldn’t possibly harm any market for the original work—all factors favoring fair use. But none of that mattered in light of the takedown.
Again and again, overzealous DMCA takedowns disregard fair use. That’s unfortunate, because fair use is designed to ensure that copyright law is compatible with the First Amendment. When fair use is overlooked in the face of a takedown notice, it really means that freedom of speech is compromised.
EFF is fighting to make sure the targets of DMCA abuse can hold the abusers accountable. In the meantime, we have been documenting the worst abuses in our Takedown Hall of Shame. Given its dangerous consequences for political speech, this takedown has earned a spot.