ABC/Disney Shuts Down Blog Exercising Fair Use

An anonymous reader writes "A blogger named Spocko had his blog shut down by ABC/Disney lawyers because he had posted clips from an ABC Radio-affiliated program and commented on their content, as well as informed show advertisers of what exactly they were paying for. Spocko merely pointed out the content that station KSFO was broadcasting, and as a result Visa pulled their advertising from the station. More companies were reportedly considering pulling their ads. A YouTube video summary is available. From the Daily Kos article: 'How'd he do it? He did it the way it's always done - by working within the law, identifying points of weakness, exploiting them and being absolutely tenacious ... It appears to me as if Disney is attempting to bully a little guy in an unethical manner. Any media lawyer worth the air she breathes knows that Spocko's use was well protected.'"

Disgusting radio commentary...

[ip_fired]

I listened to the radio commentary and had to stop before it finished. It's absolutely disgusting! I'm glad this guy did something about it.

Talking about chopping off fingers and genitals, talking about what it would sound like to have someone electrocuted. It's things like this that cause me to feel shame for being an American. We should be above this type of thought, and *certainly* above this type of action.

Re:SLAPP Reborn

[Curunir_wolf]

It appears that Disney has dusted off the tactic here.

Actually, it hasn't been dusty since about 1967. After Walt Disney's death, the corporation decided that a vast litigation department would help keep the billions flowing in.

In the 1970's they went around the country shutting down child care centers that had Disney characters on their walls.

Re:Again... blaming the lawyers

[Scrameustache]

Sigh... Why do slashdotters hate lawyers so much? It's always "the lawyers" and never the management of ABC or the gutless wonders at Spocko's ISP.

Lawyers are to corporations as big guys with strong arms are to the mob.

"Disney" had their lawyers shut him down, Disney is dead, therefore Disney, the inanimate corporation doesn't take actions by itself, Disney's Management took the decision, the lawyers did the deed.

What about FCC?

[eieken]

I know blogging about something like this is bound to gain a lot of traction pretty quickly, but isn't it also possible to send in a complaint to the FCC about this? I know the FCC isn't typically what any of us think of when we think justice, but it is within their domain to dish out some hefty justice.

To paraphrase

[iminplaya]

I don't worry about lunatic talk show hosts. I worry about their listeners.

Re:Problem with things like torture

[MysticOne]

What I've always found interesting is that these people seem to be able to make threats against elected officials (calling for their death, torture, etc.) yet nobody ever says anything about it. Yet the moment a kid in a high school somewhere says something to the same effect, they're arrested, interrogated by the FBI, etc. Yet if you're a talk show host, or a popular right-wing media whore, you're allowed to call for the death or torture of anybody with whom you disagree.

KSFO is in big trouble here.

[Animats]

First, already this is the top story on MediaPost [mediapost.com], a web site for ad buyers. This is very bad for a radio station.

Then their big mistake: On Nov. 14th Melanie Morgan said this about Nancy Pelosi: "We've got a bulls-eye painted on her big laughing eyes." (from the Daily Kos) [dailykos.com]

That might be a felony. 18 USC Sec. 871 [cornell.edu]

• ...Whoever knowingly and willfully deposits for conveyance in the mail or for a delivery from any post office or by any letter carrier any letter, paper, writing, print, missive, or document containing any threat to take the life of, to kidnap, or to inflict bodily harm upon the President of the United States, the President-elect, the Vice President or other officer next in the order of succession to the office of President of the United States, or the Vice President-elect, or knowingly and willfully otherwise makes any such threat against the President, President-elect, Vice President or other officer next in the order of succession to the office of President, or Vice President-elect, shall be fined under this title or imprisoned not more than five years, or both."

They said that after the November election, when Ms. Pelosi was Speaker-elect of the House. (The Speaker of the House is second in line for the Presidency, after the Vice President.) Somebody is probably going to be asking some hard questions of the people at that radio station.

There's a legitimate First Amendment issue here, but it's in that grey area between political speech and death threats. Morgan, KSFO and Disney may have some unpleasant months ahead. This could create liabilities that would interfere with the planned sale of the station to Citadel Broadcasting. That sale was supposed to happen during 2006, but on November 22, the deal was postponed and repriced [marketwatch.com], and not to Disney's advantage. ("the potential amount of cash retained by Disney has been reduced by $300 million in the aggregate, $100 million of which is an outright reduction in the cash...")

In terms of financial losses by a media company, this could be bigger than the Janet Jackson "wardrobe malfunction."

Re:Problem with things like torture

[Cally]

All religion is inherently a bad thing, even when "good" things are done in it's name, because it is based on a falsehood, i.e., a superstitious belief in the supernatural[1]. It's wrong, and that makes it bad.

[1]Except possibly some advanced flavours of Buddhism; all the varieties I've come across tie up some interesting ideas with a bundle of irrelevant cultural baggage I find irritate me too much to allow me to learn enough to make a better-based decision. Dumb? *shrug* could be... but it's pretty unlikely, and anyway there are plenty of more accessible lifestyle things I could do to improve me "sense of inner calm" or "harmony with the cosmos", or whatever. When I've managed to quit smoking, come back and ask me about the ineffable ;)

Re:Problem with things like torture

[chimpo13]

You're mistaken. 2 years of Lutheran school, 4 years of Jesuit school, and a degree in Anthropology, with an interest in religion, has taught me that Allah = God. Christian God = Jewish God = Islamic God.

Just different takes on how it would like to be worshipped.

Besides, my other post was a straight line. How could you pass up on the whore trifecta?

5-minute audio clips are not "fair use"

[sobiloff]

It appears that Spocko had clips that ran as long as five minutes. That's beyond fair use in most circumstances. Those are probably what gives Disney a leg to stand on. His short clips (5-15 seconds) were within the bounds of fair use, though.

how did you come across that info?

[Bananatree3]

I would be interesting in seeing where you got that info.

Re:Problem with things like torture

[metlin]

"Religion is an insult to human dignity. With or without it, you'd have a good people doing good things and evil people doing evil things. But for good people to do evil things, it takes religion."

- Steven Weinberg, Physicist and Nobel Laureate.

Re:how did you come across that info?

[VJ42]

So would I, Spocko's blog is back up (http://www.spockosbrain.com/) and I havn't come across a 5 minute long clip yet. (I've been reading some of his old posts)

Re:KSFO is in big trouble here.

[MadEE]

Unfortunately, the bold portion is the kicker... while oral death threats could probably still be prosecuted, the part of the law you quoted pertains only to written death threats sent through the mail (at least in my interpretation).

Read the whole thing:

..Whoever knowingly and willfully deposits for conveyance in the mail or for a delivery from any post office or by any letter carrier any letter, paper, writing, print, missive, or document containing any threat to take the life of, to kidnap, or to inflict bodily harm upon the President of the United States, the President-elect, the Vice President or other officer next in the order of succession to the office of President of the United States, or the Vice President-elect, or knowingly and willfully otherwise makes any such threat against the President, President-elect, Vice President or other officer next in the order of succession to the office of President, or Vice President-elect, shall be fined under this title or imprisoned not more than five years, or both.

I have heard of people getting visits from the Secret Service for postings on forums for a post that were less of a direct threat to the members of government then those on the show. They take stuff like that very seriously.

Re:Too Broad a Term

[lordmatthias215]

The part of the Christian "caveat" as you call it that human nature tends to glaze over, however, is that you have to actually truly be repentant for your actions. While God is willing to forgive each and every sin of a person, killing your neighbor and then saying "oops, my bad :-D" doesn't really fly with God. The other thing that most people don't realize is that you're not a Christian just because you "prayed the prayer" or walked down the aisle one Sunday morning. The core of Christianity is a little hard to express to a cynic, but it actually is like that cliche "forming a relationship with Christ." Everybody sins, and every single sin (even that little white lie) spells eternal death for you. Christ comes along and offers to pay off your debt (eternity in Hell). So you accept, and (in the case of a true Christian) become enormously grateful to him. And even though he'll forgive you each time you mess up and break one of the Commandments (which are still there to be obeyed), you do your best to follow the rules because you don't want him to foot any larger of a bill. In a few words, it's like this: a Christian knows that even though he *could* sin and repent, he chooses of his own free will not to sin whenever possible, out of respect for Christ. Unfortunately, the fact that there *are* moral laws listed in the Bible allows the legalistic, sadistic side of man (all man) to come out, and that's where you end up with holy wars and all of that. One thing that I've found very uncommon in older generations, but increasingly existant in my teenaged peers is the realization that the only thing we can do to bring someone to God is to not rain fire and brimstone onto them, but to tell them that God comes to people as they are, and works with them. If we had to be perfect even to be given the chance of forgiveness, Heaven would be completely devoid of human souls. Especially today, people make a big noise about homosexuals not being able to become Christians because they're living in sin. But they forget that all sin is equal, and that they lied to their boss yesterday. They're just as bad off as the homosexual. The Christian philosophy is designed to be 100% inclusive of each of the 6 billion plus screw-ups walking this planet, but people always feel the need to have their little clubs that they can feel powerful in, so they make the religion out to be some exclusive thing for non-sinners, who don't exist in the first place. While this may sound like a good argument for unorganized religion, it's been my experience that it helps tremendously to be able to commune with fellow (open-minded) believers and share what we've learned.

Not protected by Fair Use Law

[fluffy99]

One of the tests of Fair Use is "the effect of the use upon the potential market for or value of the copyrighted work." Obviously the use was intended to have a negative impact on the market value of the show and therefore fails the fair-use test. In any case, Disney can legally request that the copyrighted material be removed. I see nothing (other than the notoriously bogus slashdot summary) that Disney took any action to shutdown or remove the blog. In all likelihood the Disney lawyers simply send a cease-desist request to remove the infringing material. I wouldn't be surprised if they also mentioned slander or defamation suit.

Re:Again... blaming the lawyers

[Dan Berlin]

Secondly, lawyers are like whores because that is the ethical responsibility of every lawyer. When you represent someone, you stand in their shoes, whether it is a corporation, a little old lady, or somebody charged with a capital offense.

No. This is not only completely wrong, it's a very common misconception among those who defend lawyers.
Note, IAAL.

The ABA model rules of professional conduct, which most states' ethical rules are based on, have more than the requirement that you "zealously represent your client" (which is the rule everyone seems to remember).

They also require, more importantly, they you do not press claims you know to be frivilous or a non-good faith extension, modification, or reversal of an existing law. See rule 3.1

Tons of lawyers who should be sanctioned for this, aren't. However, if you ever accidentally mix client funds, you will be disbarred.

The rules also require that you keep in contact with your client, and be responsive in keeping them up to date. See rule 1.4.
When have you met a lawyer who actually responds to phone calls?

It's only dinosaurs burning

[yusing]

Critics have always quoted in order to focus their comments. Had Spock quoted a sentence or two in text instead of audio, it would have very hard to object to.

But now individuals have powers that used to be exclusive to mass media moguls ... one formerly enforced with less visible strong-arm tactics ... and they aren't going to go down without fighting the threat.

In this case the result is fortuitously egregious. It proves that they are becoming desperate. I imagine all the dinosaurs thrashed about a lot as they took their last breaths.

Anti-SLAPP Special Motion to Strike

[triclipse]

That is why the California Legislature enacted the Anti-SLAPP Special Motion to Strike [casp.net].

When a large entity like Disney files a lawsuit against a small blogger like this, the blogger's defense is an Anti-SLAPP motion to strike. Instead of answering Disney's complaint (if there is one), the blogger files an anti-SLAPP motion. The judge will then make some preliminary determinations and, if the blogger is successful, will throw out Disney's suit.

The beauty of it is that if the blogger wins, he gets his attorneys' fees paid. (If he loses, he does not have to pay Disney's attorneys fees.)

This encourages attorneys to defend individuals without the resources to fight big companies. There are many attorneys like me who get EFF's emails asking to help individuals like this on a contingency basis. If the blogger really is in the right then that is some good money.

I note that the link discusses a "Rule 11" motion, which would be in federal court. I don't know if there is a similar motion in fed court.

Re:Problem with things like torture

[rohan972]

Doctrinal and dogmatic differences don't mean you all don't worship the same god. The rest of us wish ...

Your assumption that you know more about the gods worshipped by others than they do displays arrogance. You seem to have the idea that you can pick out what's important about Jewish/Christian/Islamic teaching about god and what is just "Doctrinal and dogmatic differences" but the billions of Jews/Christians/Muslims can't. Your idea that you know who/what we believe in better that we do is utter nonsense.

The arabs are indeed the decsendents of Ishmael. However, Islam is not a religion held continually (or even intermittently) by those people from the time of Ishmael. The Koran (according to Islam) was given as a complete revelation. It is not a derived work from other texts, according to Islam. The Islamic claim is that Jewish and Christian texts had been corrupted and are not at all on the same level as the Koran.

The fact that Moses and Jesus are mentioned in the Koran has no bearing on whether those three religions worship the same god. Jesus is specifically called the "Son of God" in the bible. This claim is blasphemy to Allah, yet is a central claim of Christianity, to the extent that the bible claims: "He who believes in the Son of God has the testimony in himself. He who doesn't believe God has made him a liar, because he has not believed in the testimony that God has given concerning his Son." So that the Bible says that anyone who deny that Jesus is God's son is a liar, and Mohammed denied that Jesus is God's son. The Koran teaches:

They say: "the most gracious has betaken a son!" Indeed ye have put forth a thing most monstrous! At it in the skies are about to burst, the earth to split asunder, and the mountains to fall down in utter ruin, that they attributed a son to the Most Gracious, for it is not consonant with the majesty of the Most Gracious that he should beget a son. (The Qur'an, 5:88-92).

So a teaching regarded as central to their religion and concept of God to the christians is "montrous" according to the Koran. The Koran denies the Son of God according to the Christian bible. These are not minor points of doctrine. They are simply not the same god. There are also other major concepts of god's character and nature that are fundamentally different between Christianity and Islam.

The point though is this: I don't want you to reinterpret my religion for me, and the Muslims I know aren't looking for someone to reinterpret theirs for them either.