For the better part of a year starting in late 2005, San Francisco blogger Mr. Spocko waged a quiet campaign against right-wing talk radio station KSFO, 560 AM. He wrote to its sponsors and played for them explicit portions of the station’s programming, such as shock jock Lee Rodgers’s call for antiwar protesters to be "stomped to death … just stomp their bleeping guts out."
The idea was to educate corporations about exactly what they were sponsoring, in the hope that Spocko’s work might staunch the free flow of hateful rhetoric. He also posted these audio clips on his blog, Spocko’s Brain. Several advertisers pulled their ads as a result of his campaign. But after MasterCard decided to cancel its KSFO spots in July 2006, Spocko said hostile commenters started to arrive on his blog and declare that he was in legal jeopardy.
"They said things like ‘They’re going to find you and sue you for everything you’ve got,’ " Spocko told the Guardian by telephone, the only way he will be interviewed because of fears for his personal safety if people learn his true identity.
Spocko suspected people at the station were behind the threats and forged on with his campaign. Then, on Dec. 22, 2006, lawyers for KSFO’s parent company, ABC a division of Disney sent Spocko’s Internet hosting company a cease and desist letter. The letter asserted Spocko’s clips of KSFO content were copyrighted material and demanded they be taken down from his site immediately. 1&1 Internet, the hosting company, not only complied but went one step further. It shut down Spocko’s Brain.
That’s when things got crazy.
Mike Stark a bare-knuckle liberal blogger who famously asked Sen. George Allen, the Virginia Republican who was ousted in the last election, if he ever spat on his wife took up Spocko’s cause. Within days scores of like-minded bloggers had posted the KSFO audio clips on their own blogs, essentially daring Disney to come after all of them. By the first week of the new year, the mainstream media including USA Today, the San Francisco Chronicle, and the New York Times had gotten hold of the story.
Spocko’s battle against KSFO took on the dimensions of a media turf war, with the right’s traditional ally, talk radio, pitted against the new and largely left-wing online media. Spocko was suddenly and reluctantly famous, despite the fact that few actually know who he is. KSFO and Disney "made me a public figure," he told us. "[Now] in their mind I’m fair game."
Spocko cites right-wing hit pieces such as the book KSFO’s Melanie Morgan wrote about Cindy Sheehan, American Mourning as examples of what happens to lefties who stick their necks onto the conservative-media chopping block. But he also fears something much worse than character assassination. He passed along an e-mail in which someone said he "sounds like a terrorist." Morgan and her fellow KSFO hosts regularly advocate harsh treatment for terrorists, to put it mildly.
"Morgan has told her one million members in Move America Forward [a prowar on terror ‘charitable’ organization that Morgan chairs] and all her listeners that I’ve smeared her, I’ve attacked her, I’ve threatened her security," he told us. "That’s scary as hell."
Despite his professed fears, Spocko has held his ground. On Jan. 25 his lawyer, Matt Zimmerman, sent ABC a strongly worded letter demanding that it officially retract its cease and desist letter to Spocko’s old hosting company. Zimmerman works at the Electronic Frontier Foundation (EFF), which fights for people’s online freedom.
"[ABC-Disney] were clearly in the wrong here," Zimmerman told us. "They shouldn’t be in the habit of sending out baseless threats without following through on them."
At issue is whether Spocko’s posting of KSFO’s content constitutes what is known as fair use, an aspect of US copyright law that allows for certain limited usage of protected materials. Zimmerman’s letter to ABC goes through the standard four-point criteria for testing fair use. But more important, Zimmerman and Spocko say Disney did not even bother to follow the correct procedure for removing copyrighted material from a Web site.
The Digital Millennium Copyright Act of 1998 established a protocol for corporations to follow when they believe their materials have been poached. According to Zimmerman, however, Disney did not cite the DMCA in its letter to 1&1 Internet. Disney simply threatened 1&1 with unspecified legal action if it did not take down Spocko’s clips, and 1&1 caved.
"If they were serious about their beliefs that this was a copyright infringement, they could have sent a takedown notice" as specified in the DMCA, Zimmerman said. "But they didn’t do that."
Spocko’s lawyer also had some choice words for 1&1, the hosting company. Under the DMCA, Internet service providers are protected from liability, so long as they too follow proper protocol under the act. But because Disney did not cite the DMCA, Zimmerman said, 1&1 was not in any legal peril. The company "was under no obligation" to pull Spocko’s blog, he asserted. "People should be aware that in this case [1&1] decided that their own interests were more important than their customer’s."
Neil Simpkins, a 1&1 spokesperson, told the Guardian, "We are not a judicial system here. [This] issue is between Spocko and whoever is the owner of the copyright." When asked if 1&1 had consulted with legal counsel of any kind before pulling the blog, Simpkins answered that it had. But when asked for the names and contact information of his company’s legal advisers, Simpkins didn’t provide them. Officials at KSFO and ABC refused to comment for this story.
With the help of the EFF and his blogger allies, Spocko has found another ISP. Computer Tyme Web Hosting now carries his blog, which is back up and running. Some Spocko’s Brain readers have continued the campaign against KSFO. According to the blog, one Spocko devotee got the California state affiliate of the Automobile Association of America to pull its ads from the station.
But Spocko hasn’t yet posted any new audio clips nor has he contacted any advertisers since his run-in with KSFO’s parent companies. Spocko is conflicted. Part of him wants to jump back into the fray. But after the media maelstrom last month, he’s holding back, at least until ABC and Disney respond to his lawyer’s letter.
"I need to pay attention to what’s right, [but] I also need to pay attention to the real world," he said. "Media conglomerates can be ruthless."
Despite his newfound circumspection, he still believes KSFO and its fans will come after him. He even speaks of the outing of his true identity as a foregone conclusion.
"After my 15 minutes [of fame] are over and I’m at 14:58 right now they’ll still be out there, and they’ll still be pissed off," Spocko said. "And after they out me, I don’t know how this is going to impact me." *