Can Disney shut down your blog for that?


(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.