(A hobby blogger writing under the pen name “Spocko” recorded and posted audio clips of what he considered incendiary on-air remarks by talk show hosts at KSFO radio in San Francisco; his purpose was to convince the station’s advertisers to drop their ads. Lawyers for the station’s corporate owner, Disney, wrote the blogger and his Internet service provider, demanding that the files be removed because they violated copyrights. Is that legal? Could it happen to you?)
Let’s hope the nasty lawyer letter never darkens your mailbox but if it does the first questions will be – can they do this, is it legal? Well, that depends in part on how much time and possibly money you’re willing to devote to fighting that legal challenge. Pitting an individual against a multinational corporation is worse than a David-versus-Goliath contest. So the question of legality may hinge less on the letter of the law than on the brute strength of the opposing parties.
Meanwhile since the answer to question number two — could this happen to you (or me) is “You better believe it!” this would be a good time to review the law around what is called “Fair Use” of copyrighted materials.
If you’re not familiar with this case take a minute to read the article, “Trying to censor blogger,” that appeared in the San Francisco Chronicle. (I am a Chronicle reporter but have had no involvement in this story.) The article says that, through his blog, Spocko had “been e-mailing advertisers of KSFO-AM with audio clips from its shows” and essentially asking the advertisers to pull their support from the station. The article continues on to say:
“Shortly before Christmas, an ABC lawyer demanded that Spocko remove audio clips from his blog on the grounds that Spocko’s posting of KSFO content was illegal. Digital freedom advocates counter that the clips constitute fair use and worry that critical voices could be silenced by corporations threatening legal action for violation of copyright law.”
This excerpt is an example of what is called “Fair Use” and that is the legal concept on which this case turns. Stanford University Libraries define fair use as:
“the belief that the public is entitled to freely use portions of copyrighted materials forpurposes of commentary and criticism. For example, if you wish to criticize a novelist, you should have the freedom to quote a portion of the novelist’s work without asking permission. Absent this freedom, copyright owners could stifle any negative comments about their work. Unfortunately, if the copyright owner disagrees with your fair use interpretation, the dispute will have to be resolved by courts or arbitration.”
Given that Disney had far greater legal resouces, Spocko complied with the demand, and took down the material under threat of lawsuit. He then appealed for aid in the blogosphere and in the media (which, other than the company involved generally supports the a reasonable interpretation of fair use — you only use a little of the material to illustrate your point). Another question potential supporters ask is: have you ripped off a creative work to make money or is your intent a cultural or political commentary?
As Spocko has written about his own case:
“KSFO is using the full weight and force of an ABC/Disney lawyer and copyright law against a private citizen blogger. I dared to use the audio content in question for nonprofit educational purposes (I don’t even have ads on my blog!), and thus under the protection of the Fair Use Doctrine set forth in Section 107 of the Copyright Act, 17 U.S.C.§107.”
Of course you do NOT want to argue that last point in court unless you are wealthy or pugnacious and blessed with an abundance of free time. Better to fight the case in the court of public opinion where you’re more likely to get a favorable hearing — without a $250 an hour lawyer’s bill.
The Media Bloggers’ Association is pushing the concept of liability insurance for those of us who criticize for a living (or in this case, for a hobby.) I’m not sure how I feel about insurance but it’s worth mentioning in this regard.
One last note. I have deliberately NOT mentioned the “politics” of this dispute because to me it doesn’t matter. My interest is preserving the right of commentary, to which fair use is essential, and not the advancement of any side in America’s lamentable culture wars. The Chronicle ran a follow up story focusing on the station’s assertions that it was being picked on by its political opponents.
3 users commented in " Can Disney shut down your blog for that? "
Follow-up comment rss or Leave a TrackbackOne has to wonder if the bloggers who continue to perpetuate this propaganda realize the average American has the resources to go back through historically cached internet sites and to research the backgrounds of the individuals who are posting? And one has to wonder if the attitude of the blogger is that the average American is basically dumb and will buy into it?
Its clear this is merely a group of individuals who meet yearly at an conference called Eschacon, sponsored by Duncan Black of Media Matters, a liberal propaganda internet media rag, paid for by George Soros. If you look at the names of the bloggers and their blogs, it is easy to see most were in attendance at that conference. And one can see the names of the Democrat candidates who were also at that conference. Further, one can see the photographs of the individuals who attended.
Further internet research indicates that most of those individuals have an average of three to five different blogs apiece that they have been posting this story on and the responses to those blogs are again, from the same individuals who were at the above conference.
Couple this information with the blogger, Spocko, who has put out false and erroneous information to advertisers in an effort to close down the conservation radio station, KSFO and try to get the talk show hosts off the air. Internet research indicates Spocko has held a long termed relationship with Media Matters, posting on their website since 2005. However one will not find it within the Media Matters current archives. Those archives were removed, in hopes the “average American” would simply give up at the initial level of research. However, if one to view the “cached versions” of those archives, they would see Spocko posting the results, thus far, of his war. Further, if one were to research Spocko’s posts, they would find one on the internet that indicates he is working for Media Matters on this project and is asking an individual to try to gain legal assistance for him from the EFF. One such post by Spocko is where he refers to posters writing posts in the manner “Media Matters wants us to write them.”
If one were to research Michael Stark, who has claimed to organize these bloggers (which were previously organized at the Eschacon Conferences since 2005 when Media Matters first began) one would find a 38 year old, previously divorced waiter from Pennsylvania, who was attending his first year of law school in Virginia, who states in his biographies to be a Marine (not a former Marine or a Veteran who may or may not have served over twenty years ago) who stalked a Republican candidate this last autumn and battered individuals who present at a Republican function. Further, they would find he receives compensation as a reporter for Air America, the competitive radio station which is financed by George Soros. Not very ethical, however it is not something you will hear from Media Matters who claims to be an ethical watchdog for the media. In fact, he reports for them, as well.
Though the bloggers are claiming to advocate free speech, while trying to thwart the speech of others, I doubt this post will remain up long because they want the “average American” to buy their propaganda in an attempt to limit the rights afforded to those who think differently than they do.
Not very American, is it? But, think about it…Spocko’s new co-host on his website is NOT an America, but someone from Canada. Fortunately, the “average American” is smart enough to research on the internet, despite the Progressive Democrats obvious view that they will buy into their political campaign. Unfortunately, the journalists at the New York Times and the San Francisco Chronicle have not done their homework and research or allowed themselves to be cherry picked by Media Matters to write what Media Matters desired and not the truth.
Tom: Nice analysis. And thanks for keeping the politics out of it. I did a lot of reading about fair use and copyright because I was worried (I read about the RIAA stuff too, so I wasn’t oblivious to their use of force in both the legal and financial areas.)
And you are exactly right. All bloggers should educate themselves on Fair use. The EFF have some excellent articles on fair use and bloggers rights and issues concerning them.
And you are right. I did comply and they still shut me down. Scary.
Not the Christmas present I was hoping for…
LLAP,
Spocko
It sounds like a textbook case of Fair Use to me. How can Disney argue otherwise, with a straight face?
GOOFY.
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