DMCA Take-Down Notices and the Need for Federal Anti-SLAPP Legislation

The Electronic Frontier Foundation has a great story up on their DeepLinks blog about the latest abuse of the Digital Millennium Copyright Act’s take-down notice provisions.  It seems that Rush Limbaugh has hopped on the bandwagon of public figures who attempt to silence their critics by  claiming that those who post commentary regarding a public figure’s controversial statements, and include with that post recordings of those statements, have violated the public figure’s copyrights over the recordings.  Such a notice is, of course, meritless because such posts almost certainly fall under copyright law’s fair use exception, as EFF explains in their post.  Unfortunately, as EFF also explains, a DMCA take-down notice provides a simple and cheap method for someone to chill an opponent’s free speech, since most content providers like Youtube will simply remove the allegedly copyright infringing material rather than go to the time and expense of determining whether the matter in question is in fact infringing.

Such tactics certainly bear a strong similarity to those of the SLAPP filer.  Meritless DMCA take-down notices are an abuse of the legal system aimed at chilling the exercise of First Amendment rights, just like a SLAPP.  Unfortunately, as matters currently stand, DMCA take-down noticers of Limbaugh’s stripe can go so far as to take their meritless copyright claim to court and drag the innocent poster through months and years of costly litigation until she agrees to stop exercising her free speech rights — unless, of course, Congress enacts federal anti-SLAPP legislation, or the noticer is foolish enough to bring suit in state court in a state like California with a strong anti-SLAPP law.