April 24, 2012 | By Matt Zimmerman

[Updated] Limbaugh Copies Michael Savage's Bogus Copyright Theory, Sends DMCA Takedown to Silence Critics

[Update re: YouTube status below]

We've seen some ridiculous DMCA takedowns over the years, but we might have a new champion. On Monday, radio host Rush Limbaugh -- who over a three-day period beginning in late February attacked Georgetown law student Sandra Fluke on air for the apparently unforgivable sin of testifying before Congress to advocate for legislation she supported (a bill mandating health insurance coverage for contraception) -- turned to copyright law to go after one of his most vocal critics, the left-leaning political site Daily Kos. The site's offense? Publishing a damning montage of Limbaugh's controversial comments about Ms. Fluke.

Limbaugh's curiously thin-skinned decision to resort to the quiet, low-cost censorship offered by copyright law doesn't exactly break new ground. Limbaugh joins a dubious club that includes:

While initiating frivolous legal processes to intimidate and silence critics is hardly new, Limbaugh actually seems to be taking a specific page out of the playbook of Michael Savage, his on-again/off-again compatriot and fellow conservative talk radio fixture. In 2007, Savage turned to copyright law in an ultimately futile attempt to silence the Council on American-Islamic Relations (CAIR) who did precisely what the Daily Kos has done here: post online a minutes-long montage of outrageous statements made by a radio host in order to criticize the host's behavior and expose it for a public audience. In Savage's case, he unsuccessfully sued CAIR for copyright infringement. (And, bizarrely, for racketeering, because posting his xenophobic anti-Muslim rant was clearly part of a vast global terrorist conspiracy targeting Michael Savage.) Limbaugh has (for now) chosen the more expeditious DMCA takedown route. Just as with Savage's ridiculous attempt to keep his own words from being used against him failed, though, so will Limbaugh's.

How would Limbaugh's copyright claim fare if he was actually serious about it instead of using it as a trumped-up pretext for a takedown notice? About as well as Savage's; that is, not well. District Court Judge Susan Illston's 2008 opinion dismissing Michael Savage's copyright claim against CAIR on fair use grounds provides a helpful roadmap. As Judge Illston pointed out, the "purpose and character" of the use (the first fair use factor) plainly supported the speakers as "it was not unreasonable for [the speaker] to provide the actual audio excerpts, since they reaffirmed the authenticity of the criticized statements and provided the audience with the tone and manner in which [the host] made the statements." The "amount and substantiality" of the portion used (the third fair use factor) -- the reproduction of four minutes out of a two-hour program -- also supported the critics. (In Limbaugh's case, he is actually objecting to slightly more than seven minutes of nine hours of his show, around 1.3% of the works in question versus approximately 3.3% of the Savage footage.) Finally, the "effect on the potential market for the copyrighted work" factor also clearly supports such uses as the alleged "harm" at issue -- the continued PR fallout from an on-air rant -- isn't properly addressed by copyright law. As the district court noted in rejecting Savage's claim, "Because this factor limits the evaluation of market impact to the original work at issue, not other works by the creator, the loss of advertising revenue for future shows, unrelated to the original work, does not give rise to a legal cognizable infringement claim." Limbaugh's claim, identical to Savage's, would fare no better.

As a result of the bogus complaint, Daily Kos's montage has been taken down from YouTube and -- if Google follows the terms of the DMCA safe harbors -- it will remain down for at least 10-14 days. Fortunately, Daily Kos has also made it available on (less-trafficked) Vimeo. Time will tell if Limbaugh intends to target that platform as well.

Limbaugh, who regularly traffics in self-described "absurdity," of course enjoys the protections of the First Amendment and regularly uses those protections for maximum effect. Had his own speech been similarly targeted by a frivolous lawsuit or takedown request, he would be justified in his own claims of attempted censorship. As we have repeatedly pointed out, however, the First Amendment says nothing about a right to advertiser-subsidized speech, and criticism aimed at undermining advertiser support is just as deserving of legal protection. Agree with Limbaugh or not, his decision to resort to the legal process to silence the speech of others deserves condemnation from First Amendment advocates of all stripes.

A closing question for Google: Want to reconsider? You're not legally obligated to comply with plainly abusive DMCA notices. You've restored videos that were improperly taken down by meritless DMCA notices in the past. How about this one?

[Updated]: On Tuesday afternoon PT (4/24/12), Google restored the Daily Kos video in question. The video can be seen YouTube here: http://www.youtube.com/watch?v=q1oOjKQflN0. Props to Google for doing the right thing when it was brought to their attention.


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