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   XPost: alt.politics.radical-left, alt.society.civil-liberties, a   
   t.society.anarchy   
   From: etaa123@etaoin.com   
      
      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.   
      
      
   [continued in next message]   
      
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