by Paul Alan Levy
It always happens during the presidential election season. This year, a bogus DMCA takedown was aimed at a video posted to Twitter by Donald Trump. Promoting his wild conspiracy theories about potential election opponent Joseph Biden, Trump fiddled with the first fifteen seconds of the video for the Nickelback musical number “Photograph” by inserting a photo showing Joe Biden and his son Hunter with two other individuals, one identified as a Ukrainian gas executive, into the image that appears just as the band is singing, "Look at this photograph, every time it makes me laugh . . ..” Twitter removed the video in response to a DMCA takedown notice from Warner Music.
Much of the commentary praises Nickelback for shutting Trump down by blocking his play on their work; but this video excerpt was plainly fair use. And even if Nickelback (or Warner Music) disapproves of Trump and resents his use of their copyrighted work to make a political point, that would make the takedown even worse, a form of copyright misuse. We should fault Twitter for acceding to the takedown, but the reflexive removal of content based on abusive takedowns is consistent with the policies followed by other platforms in previous presidential elections – they have argued that the politicians should learn from these examples about the need to amend the DMCA to make bogus takedowns more unattractive, rather than expecting the platforms to make special exceptions when it is the powerful whose speech is subject to abusive takedowns. It has been refreshing to see YouTube taking more steps to educate users about their fair use rights, and even calling out examples of abusive takedowns (as in this situation involving one of my clients, who got extra attention for its anti-fracking campaign as a result of being identified as a victim of abusive takedown).
It is, indeed, worth remembering the easy ways in which the DMCA could be amended to make it harder for abusive takedowns to succeed and easier for the victims of such takedowns to obtain redress. We suggested several such changes in this letter to then-Senators Obama and McCain after their presidential campaigns suffered unjustified takedowns; Marc Randazza put forward his own proposal a few years later.
