EFF legal intern Samantha Hamilton co-wrote this blog post

Nickelback never asked to become a meme. And yet, after the Internet decided it hated the Canadian alternative rock band and due to the lead singer’s unique voice, users have shared their image millions of times. But their record label decided to draw a line at President Trump tweeting a meme putting the Biden-Ukraine controversy into a Nickelback music video. We may tend not to think of memes as political speech, but they can be. And when someone expresses a political message via meme, using copyright law to silence their speech when it is very clearly fair use is an abuse of copyright.

In July, President Trump pushed Ukrainian officials to investigate Hunter Biden, presidential candidate Joe Biden’s son, for corruption. Trump stoked the fire on October 2 when he tweeted a video clip from Nickelback’s music video for their 2005 hit “Photograph,” in which lead singer Chad Kroeger holds a picture frame up to the camera. This particular moment, where Kroeger whines out “look at this photograph,” is a very recognizable, popular meme.

In Trump’s tweet, the frame contained a photo of Joe Biden, Hunter Biden, and two other men, one identified as “Ukraine Gas Exec,” and the other unidentified, all on a golf course. The meme was only part of the video, which began with a clip of Joe Biden telling a reporter in a 2015 interview, “I’ve never spoken to my son about his overseas business dealings.” The video then cut to the shot in question, of Kroeger holding the golfing photo in a frame. It then zoomed in on the photo itself, pushing Kroeger out of view.

Warner Music Group, Nickelback’s record label, sent a takedown request to Twitter under the Digital Millennium Copyright Act (DMCA), which gives copyright holders an expedited mechanism to take down allegedly infringing works online without oversight from a court of law. It makes taking down content very easy. This ease and lack of judicial oversight makes it subject to abuse, abuses which we at EFF have documented and fought against for years. Because platforms have to respond to DMCA notices by taking down content in order to maintain the valuable safe harbor provided by the law, this gives copyright holders a de facto ability to censor any criticism and commentary that they do not like.

But that problem gets even worse in the context of political speech: DMCA abuse turns copyright into a back door for censorship in an area that should be the most protected.

Copyright and free speech are always in tension, and that’s why we have the fair use doctrine to protect many kinds of speech that use copyrighted material without permission—for example, if the use is for educational purposes or commentary.

Because memes, by their nature, pull content from one context and place it in another, thereby giving it new meaning, memes are generally fair use. And memes are often even more transformative, meaning they do even more to express an additional or different message from the original work being used, which helps to establish that a use is fair. Political speech in particular is at the core of First Amendment protection, and is especially likely to be recognized by a court as valuable and as a fair use.

DMCA abuse (the act of sending fraudulent takedown requests) can be less about copyright and much more about the message of the transformative work. “What motivates these takedowns is often not copyright, but issues not within the DMCA’s purview, such as concerns over reputation and false endorsement,” the Center for Democracy and Technology wrote in a 2010 report on campaign advertisements and the DMCA.

Section 512(f) of the DMCA states that anyone who “materially misrepresents” that content is infringing will be liable, but this provision does not have enough teeth to deter fraudulent takedown requests. And even when the Ninth Circuit decided in 2018 in Lenz v. Universal Music Group that a requester must consider whether the infringing work is fair use, the court held that the law only requires a subjective belief that the use is fair, even if that subjective belief is objectively unreasonable.

Neither of these mechanisms do enough to establish proper safeguards for free speech. What we’ve ended up with as a result is takedown requesters who avoid fair use analysis and content hosts that don’t have the time or incentive to do it. So, when a copyright holder doesn’t like the way a work is used, a takedown request is a cheap and easy way to censor the unwanted use, even when that use would be protected under the law if a judge were involved in the process.

It should be noted that the speaker of the political speech is not without recourse. If a platform takes down her content, she can file a counternotice explaining why she believes her work is fair use, and the platform may put the content back up. However, this rarely happens. Speakers often don’t want to risk a lawsuit, and other factors such as timing often deter a legitimate speaker from bothering with a counternotice.

We wrote about this same issue in 2015 when Don Henley, lead singer and guitarist of the Eagles, sent a DMCA takedown request in response to a political ad that used the melody to “Hotel California,” with different lyrics. The campaign didn’t send a counternotice since the ad wouldn’t have been restored for two weeks, and elections run at such a fast pace that campaign officials decided a counternotice wasn’t worth the effort. This incident highlights an important truth: copyright abuse can effectively censor speech long enough for a news cycle or political race to move on, without recourse.

The upshot from the Trump-Nickelback case and others like it is that it shows how transformative works can end up subject to fraudulent takedowns simply because of high visibility. Visibility leads to censorship under the DMCA, and this means that a message that resonates (or one that is newsworthy because it comes from the President) can vanish right when it’s most relevant.

The takedown request is not about copyright, but about controlling what viewpoints can be expressed through reference to and adaptations of existing aspects of culture.

Warner’s motivation for the takedown request might have been to protect Nickelback’s good name, but the fact is that no matter how much a copyright holder may despise a speaker or their message, fair use protects everyone’s right to use, adapt, or remix copyrighted works for political commentary. Censoring political speech is only one type of abuse the DMCA facilitates. When proponents of new speech restrictions hold up the DMCA takedown regime as a model, we need to remember that this regime has opened the door to serious abuse without recourse for victims, something that impoverishes public discourse.

Political speech, including memes, is too important to public understanding and the political process to fall victim to the whims of copyright holders. We will continue to work to protect dissent and creativity from the censorial power of takedown abuse.