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EFF: Limbaugh Copies Michael Savage's Bogus Copyright Theory, Sends DMCA Takedown to Silence Critics
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Nar Gilah
May 2, 2012, 8:52:54 AM5/2/12
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April 24, 2012 | By [17]Matt Zimmerman (EFF)
Limbaugh Copies Michael Savage's Bogus Copyright Theory, Sends DMCA
Takedown to Silence Critics
We've seen some [18]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 [19]attacked
Georgetown law student Sandra Fluke on air for the apparently
unforgivable sin of [20]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 [21]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:
* Famed spoon-bending "paranormalist" Uri Geller who [22]sent a DMCA
takedown notice to YouTube demanding that a [23]decades-old NOVA
documentary that exposed the secrets of Gellar's "psychic"
abilities on the basis that it purportedly included three seconds
of copyrighted material.
* Fashion giant Ralph Lauren who sent a DMCA takedown notice to
several sites, including BoingBoing, for their [24]posting of a
creepy over-photoshopped Ralph Lauren ad that made the unfortunate
model look almost as absurd as the company's lawyers.
* Universal Music Group -- who by now should have its own wing in
[25]EFF's Takedown Hall of Shame -- who used the DMCA to
[26]temporarily silence conservative commentator Michelle Malkin.
Malkin posted a [27]video blog criticizing Universal artist Akon
for his misogynistic lyrics and on-stage antics with a 15-year-old
girl at a Trinidad concert, prompting Universal to lazily plead
"copyright" and fire off the censorship request.
* NBC News and CBS News who, in the waning months of the 2008
presidential campaign, sent [28]DMCA takedown notices to YouTube to
shut down ads of the Obama and McCain campaigns respectively, ads
that made clear fair uses of news footage to criticize their
opponents.
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/[29]off-again
compatriot and fellow conservative talk radio fixture. In 2007, Savage
[30]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: [31]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 [32]unsuccessfully sued CAIR for copyright infringement. (And,
bizarrely, for racketeering, because posting his xenophobic anti-Muslim
rant was clearly part of a [33]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, [34]not well. District
Court Judge Susan Illston's 2008 [35]opinion dismissing Michael
Savage's copyright claim against CAIR on [36]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 [37]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
[38]taken down from YouTube and -- if Google follows the terms of the
[39]DMCA safe harbors -- it will remain down for at least 10-14 days.
Fortunately, Daily Kos has [40]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 "[41]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
[42]repeatedly [43]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
[44]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:
[45]http://www.youtube.com/watch?v=q1oOjKQflN0. Props to Google for
doing the right thing when it was brought to their attention.
[46]Free Speech
[47]Bloggers' Rights
[48]CyberSLAPP
[49]Intellectual Property
[50]DMCA
Related Cases
[51]Savage v. Council on American-Islamic Relations
References
Visible links
1. https://www.eff.org/deeplinks/2012/04/limbaugh-copies-michael-
savages-bogus-copyright-theory#main-content
17. https://www.eff.org/about/staff/matt-zimmerman
18. https://www.eff.org/takedowns
19. http://theweek.com/article/index/225214/rush-limbaugh-vs-sandra-
fluke-a-timeline
20. http://www.youtube.com/watch?v=xlRC0nsjtKQ
21. http://www.dailykos.com/story/2012/04/23/1085791/-Rush-Limbaugh-
demands-YouTube-remove-Daily-Kos-video-watch-it-here
22. http://arstechnica.com/tech-policy/news/2007/05/eff-to-psychic-
there-will-be-a-dmca-abuse-suit-in-the-near-future.ars
23. http://www.youtube.com/watch?v=dTXmo4_LR4w
24. http://www.boingboing.net/2009/10/06/the-criticism-that-r.html
25. https://www.eff.org/takedowns
26. http://arstechnica.com/tech-policy/news/2007/05/youtube-restores-
video-critical-of-rapper-after-umg-admits-dmca-mistake.ars
27. http://michellemalkin.com/2007/05/14/umg-youtube-retreat-over-akon-
report
28. http://www.adweek.com/news/advertising-branding/youtube-pulls-obama-
spot-97103
29. http://rush-matters.com/current-events/cat-fight-michael-savage-
savages-rush-limbaugh
30. https://www.eff.org/cases/savage-v-council-american-islamic-
relations
31. http://www.cair.com/ArticleDetails.aspx?
ArticleID=23608&name=n&currPage=1
32. https://www.eff.org/deeplinks/2008/07/fair-use-prevails-over-
michael-savages-copyright-c
33. https://www.eff.org/sites/default/files/filenode/savagevcair/
cair6.pdf
34. https://www.eff.org/sites/default/files/filenode/savagevcair/
SavageCAIR-opinion.pdf
35. https://www.eff.org/sites/default/files/filenode/savagevcair/
SavageCAIR-opinion.pdf
36. http://ilt.eff.org/index.php/Copyright:_Fair_Use
37. http://www.hollywoodreporter.com/news/rush-limbaugh-sponsor-loss-
increases-sandra-fluke-297698
38. http://www.youtube.com/watch?v=q1oOjKQflN0
39. http://ilt.eff.org/index.php/
Copyright:_Digital_Millennium_Copyright_Act#Steps_to_Take_upon_Notice_of_Infringement
40. http://vimeo.com/40888702
41. http://www.rushlimbaugh.com/daily/2012/03/03/a_statement_from_rush
42. https://www.eff.org/deeplinks/2007/01/spocko-ksfo-and-blogospheres-
allergy-copyright-thuggery
43. https://www.eff.org/deeplinks/2008/01/another-year-another-attempt-
misuse-copyright-law-silence-critic
44. https://www.eff.org/deeplinks/2008/09/youtube-anti-scientology-
takedowns-good-news-bad-n-0
45. http://www.youtube.com/watch?v=q1oOjKQflN0
46. https://www.eff.org/issues/free-speech
47. https://www.eff.org/bloggers
48. https://www.eff.org/issues/cyberslapp
49. https://www.eff.org/issues/intellectual-property
50. https://www.eff.org/issues/dmca
51. https://www.eff.org/cases/savage-v-council-american-islamic-
relations
Limbaugh Copies Michael Savage's Bogus Copyright Theory, Sends DMCA
Takedown to Silence Critics
We've seen some [18]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 [19]attacked
Georgetown law student Sandra Fluke on air for the apparently
unforgivable sin of [20]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 [21]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:
* Famed spoon-bending "paranormalist" Uri Geller who [22]sent a DMCA
takedown notice to YouTube demanding that a [23]decades-old NOVA
documentary that exposed the secrets of Gellar's "psychic"
abilities on the basis that it purportedly included three seconds
of copyrighted material.
* Fashion giant Ralph Lauren who sent a DMCA takedown notice to
several sites, including BoingBoing, for their [24]posting of a
creepy over-photoshopped Ralph Lauren ad that made the unfortunate
model look almost as absurd as the company's lawyers.
* Universal Music Group -- who by now should have its own wing in
[25]EFF's Takedown Hall of Shame -- who used the DMCA to
[26]temporarily silence conservative commentator Michelle Malkin.
Malkin posted a [27]video blog criticizing Universal artist Akon
for his misogynistic lyrics and on-stage antics with a 15-year-old
girl at a Trinidad concert, prompting Universal to lazily plead
"copyright" and fire off the censorship request.
* NBC News and CBS News who, in the waning months of the 2008
presidential campaign, sent [28]DMCA takedown notices to YouTube to
shut down ads of the Obama and McCain campaigns respectively, ads
that made clear fair uses of news footage to criticize their
opponents.
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/[29]off-again
compatriot and fellow conservative talk radio fixture. In 2007, Savage
[30]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: [31]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 [32]unsuccessfully sued CAIR for copyright infringement. (And,
bizarrely, for racketeering, because posting his xenophobic anti-Muslim
rant was clearly part of a [33]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, [34]not well. District
Court Judge Susan Illston's 2008 [35]opinion dismissing Michael
Savage's copyright claim against CAIR on [36]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 [37]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
[38]taken down from YouTube and -- if Google follows the terms of the
[39]DMCA safe harbors -- it will remain down for at least 10-14 days.
Fortunately, Daily Kos has [40]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 "[41]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
[42]repeatedly [43]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
[44]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:
[45]http://www.youtube.com/watch?v=q1oOjKQflN0. Props to Google for
doing the right thing when it was brought to their attention.
[46]Free Speech
[47]Bloggers' Rights
[48]CyberSLAPP
[49]Intellectual Property
[50]DMCA
Related Cases
[51]Savage v. Council on American-Islamic Relations
References
Visible links
1. https://www.eff.org/deeplinks/2012/04/limbaugh-copies-michael-
savages-bogus-copyright-theory#main-content
17. https://www.eff.org/about/staff/matt-zimmerman
18. https://www.eff.org/takedowns
19. http://theweek.com/article/index/225214/rush-limbaugh-vs-sandra-
fluke-a-timeline
20. http://www.youtube.com/watch?v=xlRC0nsjtKQ
21. http://www.dailykos.com/story/2012/04/23/1085791/-Rush-Limbaugh-
demands-YouTube-remove-Daily-Kos-video-watch-it-here
22. http://arstechnica.com/tech-policy/news/2007/05/eff-to-psychic-
there-will-be-a-dmca-abuse-suit-in-the-near-future.ars
23. http://www.youtube.com/watch?v=dTXmo4_LR4w
24. http://www.boingboing.net/2009/10/06/the-criticism-that-r.html
25. https://www.eff.org/takedowns
26. http://arstechnica.com/tech-policy/news/2007/05/youtube-restores-
video-critical-of-rapper-after-umg-admits-dmca-mistake.ars
27. http://michellemalkin.com/2007/05/14/umg-youtube-retreat-over-akon-
report
28. http://www.adweek.com/news/advertising-branding/youtube-pulls-obama-
spot-97103
29. http://rush-matters.com/current-events/cat-fight-michael-savage-
savages-rush-limbaugh
30. https://www.eff.org/cases/savage-v-council-american-islamic-
relations
31. http://www.cair.com/ArticleDetails.aspx?
ArticleID=23608&name=n&currPage=1
32. https://www.eff.org/deeplinks/2008/07/fair-use-prevails-over-
michael-savages-copyright-c
33. https://www.eff.org/sites/default/files/filenode/savagevcair/
cair6.pdf
34. https://www.eff.org/sites/default/files/filenode/savagevcair/
SavageCAIR-opinion.pdf
35. https://www.eff.org/sites/default/files/filenode/savagevcair/
SavageCAIR-opinion.pdf
36. http://ilt.eff.org/index.php/Copyright:_Fair_Use
37. http://www.hollywoodreporter.com/news/rush-limbaugh-sponsor-loss-
increases-sandra-fluke-297698
38. http://www.youtube.com/watch?v=q1oOjKQflN0
39. http://ilt.eff.org/index.php/
Copyright:_Digital_Millennium_Copyright_Act#Steps_to_Take_upon_Notice_of_Infringement
40. http://vimeo.com/40888702
41. http://www.rushlimbaugh.com/daily/2012/03/03/a_statement_from_rush
42. https://www.eff.org/deeplinks/2007/01/spocko-ksfo-and-blogospheres-
allergy-copyright-thuggery
43. https://www.eff.org/deeplinks/2008/01/another-year-another-attempt-
misuse-copyright-law-silence-critic
44. https://www.eff.org/deeplinks/2008/09/youtube-anti-scientology-
takedowns-good-news-bad-n-0
45. http://www.youtube.com/watch?v=q1oOjKQflN0
46. https://www.eff.org/issues/free-speech
47. https://www.eff.org/bloggers
48. https://www.eff.org/issues/cyberslapp
49. https://www.eff.org/issues/intellectual-property
50. https://www.eff.org/issues/dmca
51. https://www.eff.org/cases/savage-v-council-american-islamic-
relations
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