ABC's KSFO - The Empire Strikes Back at Blogs Charing "Hate" Speech

[zumahans]

http://www4.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000107----000-.html

"In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

Otherwise, will the use damage the author(s) of the copywritten work.

Sorry Phil, but you got this one wrong. This is not cut and dry, no matter what the EFF says ( and I side with them, BTW.)

Again, there's a button on your radio if you don't like what you are hearing.
:

"Shall include" means all four factors must be considered and possibly balanced against each other, not that all four factors control. Big difference! And the courts have repeatedly held that the potential effect on the further use of a copyright material is subservient to the interests of free political speech.

This is not only cut and dried, it's beyond legal question. ABC sent a letter to scare and intimidate - lawyers do that all the time. And it was based on the fear of a big nasty suit, not good law.

 

[AKLes]

The real test will come with the next ratings period.

The "Barnum Theory" holds that KSFO can expect a serious upward bump through people who had never listened before tuning in to see what the flap is all about. That includes many whose politics might be in total disagreement but can't resist donning a hair shirt. Politics don't matter in ratings; only number of listeners. Advertisers, in turn, especially those represented by agencies, tend to go where the numbers go. So KSFO loses some; gains some.

The real poll is going to be the ratings.

 

[zumahans]

ABC folded like a house of cards. This was a disaster from a public relations standpoint, which the idiot lawyers may not have foreseen.

But they knew from the start that they were talking bluster, and had no case.

 

[evnlee]

http://www4.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000107----000-.html

"In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

Otherwise, will the use damage the author(s) of the copywritten work.

Sorry Phil, but you got this one wrong. This is not cut and dry, no matter what the EFF says ( and I side with them, BTW.)

Again, there's a button on your radio if you don't like what you are hearing.
:

"Shall include" means all four factors must be considered and possibly balanced against each other, not that all four factors control. Big difference! And the courts have repeatedly held that the potential effect on the further use of a copyright material is subservient to the interests of free political speech.

This is not only cut and dried, it's beyond legal question. ABC sent a letter to scare and intimidate - lawyers do that all the time. And it was based on the fear of a big nasty suit, not good law.

sorry, but you are incorrect.

The 4 factors shall be considered to mount a 'fair use 'defense against infringement.

If this issue was so cut and dried, or beyond legal question, we would have no need of the EFF's defense.

Sooner or later, someone's not going to throw in the towel and this issue will go to the supreme's. BET ON IT.

And, if Spocko thought he was being targeted by ABC suits, he could have countersued with California's SLAPP, as I pointed out before.

Again~ small dial on the front of the radio, kids. It changes the channel. You can use it anytime! :

 

[kaufcom]

Why are you investing so much time trying to defend the right of big corporations to sue little guys about taping audio content over the internet. Do you think Disney needs your support? It's one thing to suck up to Boyce. But Disney?

Strong legal credentials or not, you cannot do that with copywritten material with the intent to damage KSFO and argue 'fair use'. The first word there is 'fair', and violating copyright law for the 'greater good' will not fly in a circuit court. bet on it.

More nonsense. Intent has nothing to do with the fair use provision. You don't get extra or reduced rights based on your "intent" to disparage or approve of the content of the material you are using.

Talk shows themselves do this every day, pro and con, and there has never been a problem with it. The EFF lawyers made it perfectly clear they would happily represent Spocko. It was ABC's lawyers who dropped the entire matter. They knew they had no case.

more nonsense. There's has 'never been a problem with it'? Really? I guess that's why the EFF got involved, right? If there 'was/ has never been' a problem like this before, they wouldn't be involved.

The fact is, the legal language of 'fair use' in regards to damages accrued from the internet(s) is still being discovered. What you are saying is tanamount to claiming that Universal had no legal basis in suing Sony in the infamous betamax case, which I referenced earlier. Until it had been litigated, it was illegal to videotape, even though the abilities to prosecute were slim. Talk shows may play clips, but show me the talk show that plays the clips, posts the clips online, and then calls the advertisers of the host they are playing clips of. Oh, you can't? That's because they know better.

http://www4.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000107----000-.html

"In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

Otherwise, will the use damage the author(s) of the copywritten work.

Sorry Phil, but you got this one wrong. This is not cut and dry, no matter what the EFF says ( and I side with them, BTW.)

Again, there's a button on your radio if you don't like what you are hearing.
:

 

[evnlee]

Why are you investing so much time trying to defend the right of big corporations to sue little guys about taping audio content over the internet. Do you think Disney needs your support? It's one thing to suck up to Boyce. But Disney?

ridiculous.the very first post, the second sentence I wrote:

"He has every right to do these things, IMHO. If he finds commentary offensive, then he can and should do something about it."

Baroosk, why do you hate 'big corporations' so much? Don't you think 'big corporations' deserve legal protection sometimes? How about 'Napster'? That site was giving away copywritten material, right? Material owned by 'big bad evil corporations', in some cases, right? Posted online, right?

The wonderful 9 circuit court shut them down,and they went bankrupt, if I recall correctly.

I'll say it again, if he finds thier speech offensive, he should do something about it. It's called changing the channel :

 

[zumahans]

--->If this issue was so cut and dried, or beyond legal question, we would have no need of the EFF's defense.

Because it was a controversy.

---->Sooner or later, someone's not going to throw in the towel and this issue will go to the supreme's. BET ON IT.

No, this issue has gone before several U.S. Circuit Courts, and the Supreme Court has denied certiori on those cases, because there ar eno legal questions to be decided.

"Fair use" and copyright issues rarely go to the Supreme Court because the case law and statutes are very clear.

---->And, if Spocko thought he was being targeted by ABC suits, he could have countersued with California's SLAPP, as I pointed out before.

No, that is a fundamental misunderstanding of the law. How can anyone possibly initiate a SLAPP countersuit until they are sued in the first place?

---->Again~ small dial on the front of the radio, kids. It changes the channel. You can use it anytime! :

I hope your understanding of radio is superior to what you have said about the law.

 

[evnlee]

--->If this issue was so cut and dried, or beyond legal question, we would have no need of the EFF's defense.

Because it was a controversy.

---->Sooner or later, someone's not going to throw in the towel and this issue will go to the supreme's. BET ON IT.

No, this issue has gone before several U.S. Circuit Courts, and the Supreme Court has denied certiori on those cases, because there ar eno legal questions to be decided.

"Fair use" and copyright issues rarely go to the Supreme Court because the case law and statutes are very clear.

---->And, if Spocko thought he was being targeted by ABC suits, he could have countersued with California's SLAPP, as I pointed out before.

No, that is a fundamental misunderstanding of the law. How can anyone possibly initiate a SLAPP countersuit until they are sued in the first place?

---->Again~ small dial on the front of the radio, kids. It changes the channel. You can use it anytime! :

I hope your understanding of radio is superior to what you have said about the law.

#1 it was a controversy BECAUSE there is no clear legal precedent.
#2 ""Fair use" and copyright issues rarely go to the Supreme Court because the case law and statutes are very clear.
"Fair Use' and copyright issues rarely get to the supreme's because they get worked out in lower courts. But they continue to go before the Supreme Court when the particpants choose not to, see http://en.wikipedia.org/wiki/Napster

#3 And, if Spocko thought he was being targeted by ABC suits, he could have countersued with California's SLAPP, as I pointed out before.

No, that is a fundamental misunderstanding of the law. How can anyone possibly initiate a SLAPP countersuit until they are sued in the first place?

Okay read this:The U.S. state of California enacted Code of Civil Procedure § 425.16 in 1992, a statute intended to prevent the misuse of litigation in SLAPP suits. It provides for a special motion which a defendant can file at the outset of a lawsuit to strike a complaint where the complaint arises from conduct that falls within the rights of petition or free speech.

Spocko was being threatened to be sued. If they followed through, he could utilize SLAPP. That's exactly what I said.


"I hope your understanding of radio is superior to what you have said about the law."

Looks like somebody with superior intellect had trouble finding that button :

 

[zumahans]

---->#1 it was a controversy BECAUSE there is no clear legal precedent.

It was controversial only on the internet, where idiots can pretend they understand the issue and misinterpret plain law. The legal issues were never controversial - no legal authorities backed ABC's claims.

---->"Fair Use' and copyright issues rarely get to the supreme's because they get worked out in lower courts. But they continue to go before the Supreme Court when the particpants choose not to, see http://en.wikipedia.org/wiki/Napster.

Rare, and only if the Supreme Court wants to hear the case. For every one case heard, dozens and dozens are denied.

----->Okay read this:The U.S. state of California enacted Code of Civil Procedure § 425.16 in 1992, a statute intended to prevent the misuse of litigation in SLAPP suits. It provides for a special motion which a defendant can file at the outset of a lawsuit to strike a complaint where the complaint arises from conduct that falls within the rights of petition or free speech. Spocko was being threatened to be sued. If they followed through, he could utilize SLAPP. That's exactly what I said.

In order for a lawsuit to have an outset, there has to be a lawsuit in the first place. Spocko was not sued, he was threatened by a blustering attorney who sent a nasty Bark-o-Gram.

Spocko barked back, with a threat of an anti-SLAPP.

OK, so read this: in order to use anti-SLAPP, there has to be a lawsuit filed in the first place. ABC filed no lawsuit. Spocko cannot answer a threat of a lawsuit with a SLAPP. Basic civil procedure, dude.

----->"I hope your understanding of radio is superior to what you have said about the law." Looks like somebody with superior intellect...."

Noted.

 

[evnlee]

Rare, and only if the Supreme Court wants to hear the case. For every one case heard, dozens and dozens are denied.

Ok Zum. Dozens and dozens of Fair Use cases are denied to the Supreme's, or Circuit Courts, right?

Provide 5 examples, using your superior intellect. Should be no problem, right?

I await your response

 

[zumahans]

According to American Jurisprudence, Second Edition, Database updated May 2006, only two relevant cases have even been taken to the Surpeme Court in the past 15 years: Bond v. Blum, 317 F.3d 385 (4th Cir. 2003), certiori was denied (the Supreme Court turned it down), and Acuff-Rose (see below).

The Bond case really was strange: a kid murdered his father, bragged about it in a manuscript, copyrighted the manuscript, and then someone excerpted the manuscipt. The Supreme Court held that was fair use.

All other controlling cases have been decided by federal Circuit Courts. The following cases set operative precedent, and were not appealed to the Supreme Court after being decided by the Circuit Courts:

Nihon Keizai Shimbun, Inc. v. Comline Business Data, Inc., 166 F.3d 65 (2d Cir. 1999).
Video Pipeline, Inc. v. Buena Vista Home Entertainment, Inc., 342 F.3d 191 (3d Cir. 2003).
San Francisco Arts & Athletics, Inc. v. U.S. Olympic Committee, 483 U.S. 522, 107 S. Ct. 2971, 97 L. Ed. 2d 427 (1987).
National Rifle Ass'n of America v. Handgun Control Federation of Ohio, 15 F.3d 559, 1994 FED App. 0028P (6th Cir. 1994).
Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992).
Los Angeles News Service v. KCAL-TV Channel 9, 108 F.3d 1119 (9th Cir. 1997).
Lindberg v. County of Kitsap, 133 Wash. 2d 729, 948 P.2d 805 (1997).
American Geophysical Union v. Texaco Inc., 60 F.3d 913, 144 A.L.R. Fed. 745 (2d Cir. 1994).
New Era Publications Intern., ApS v. Carol Pub. Group, 904 F.2d 152 (2d Cir. 1990)

Of course, the Supreme Court has already ruled on fair use matters, in 1994's Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569, 114 S.Ct. 1164: the Court held that the 1976 Copyright Act specifically allows copyright material to be copied when:

- the purpose and character of use,
-nature of copyrighted work,
- amount and substantiality of portion used in relation to copyrighted work as whole, and
- effect of use on potential market for or value of copyrighted work,

"must" be explored together, and not in isolation, in light of purpose of copyright laws.

 

[zumahans]

That will be $500, please.

If you want to learn more, American Jurisprudence explains it in language that even people with non-superior intellects can understand. Your local law library should have it, even in red states.

 

[evnlee]

That will be $500, please.

If you want to learn more, American Jurisprudence explains it in language that even people with non-superior intellects can understand. Your local law library should have it, even in red states.

I see. You claim "For every one case heard, dozens and dozens are denied" yet you can 't come up with 5 denied cases, although you can come up with 9 cases decided ( not denied ) in lower courts.

Which is what I said, right? Most cases get 'worked out' before it ever gets to that level.

Oh yeah, the 'Campbell v. Acuff-Rose Music' case breached the subject of 'sampling' in the early days of Rap, before the widespread use and availability of the internet. It dealt with 'parody' not what Spocko did. Spocko directly copied the material, and posted it online. Which is why this 'precedent' is not set, and why you can't back up your claim that " dozens and dozens are denied".

I'm glad to hear 'American Jurispudence' has that info, perhaps you can use that big blue state brain and find me some examples, huh?

Otherwise , I'll play your game. Zumahans opinions on case law are 98% false. Want me to prove it? That will cost you 500$ and you should really check out 'American Jury-dunces'.

Thanks for playing. :

 

[evnlee]

Oh yeah, the 'Campbell v. Acuff-Rose Music' case breached the subject of 'sampling' in the early days of Rap, before the widespread use and availability of the internet. It dealt with 'parody' not what Spocko did. Spocko directly copied the material, and posted it online. Which is why this 'precedent' is not set, and why you can't back up your claim that " dozens and dozens are denied".

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=510&page=569

I like to back up my claims with links so that everybody can read and make thier own decisions.

 

[zumahans]

OK, I spoke imprecisely in a discussion over your idiotic legal claim.

For every case heard by the high court, dozens and dozens never make it out of the district courts, much less make it to Washington.

Your "bet on it" claim is totally false.

My basic argument is correct: copyright fair use law is settled, uncontroversial in the courts, and ABC backed off once its scare-o-gram was taken to a lawyer.

 

[zumahans]

Oh yeah, the 'Campbell v. Acuff-Rose Music' case breached the subject of 'sampling' in the early days of Rap, before the widespread use and availability of the internet. It dealt with 'parody' not what Spocko did. Spocko directly copied the material, and posted it online. Which is why this 'precedent' is not set, and why you can't back up your claim that " dozens and dozens are denied".

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=510&page=569

I like to back up my claims with links so that everybody can read and make thier own decisions.

For the record, I never said the Acuff-Rose case was about excerpting comments for free speech issues. I plainly said it was the only fair use case to reach the Supreme Court in recent years.

But, the facts in that case are directly parallel to Spocko and there can be no question that a federal court could safely rely on Acuff to hold that political comment from Spocko is subject to the exact same statutory and constitutional protections as is the parody in Acuff.

 

[evnlee]

Oh yeah, the 'Campbell v. Acuff-Rose Music' case breached the subject of 'sampling' in the early days of Rap, before the widespread use and availability of the internet. It dealt with 'parody' not what Spocko did. Spocko directly copied the material, and posted it online. Which is why this 'precedent' is not set, and why you can't back up your claim that " dozens and dozens are denied".

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=510&page=569

I like to back up my claims with links so that everybody can read and make thier own decisions.

For the record, I never said the Acuff-Rose case was about excerpting comments for free speech issues. I plainly said it was the only fair use case to reach the Supreme Court in recent years.

But, the facts in that case are directly parallel to Spocko and there can be no question that a federal court could safely rely on Acuff to hold that political comment from Spocko is subject to the exact same statutory and constitutional protections as is the parody in Acuff.

That's some quality tap dancing! :

The facts in the Acuff-Rose case are not even close to 'directly parellel' to what Spocko did. Spocko did not 'borrow' the intellectual property and 'parody' it, which is what the 2LiveCrew did. Spocko directly lifted the audio, and posted it online. Now, if he had taken what the hosts said, and parodied it, no problem. If he posted the clips online without targeting the advertisers, ( like mediamatters) no problem. If he sent the clips to the advertisers, no problem. But, if he posts the copywritten material online, AND tried to damage the hosts by targeting the advertisers, problem. The application of the 'fair use' as a defense against infringement has not been determined, and sooner or later, it's going to end up in a higher court because the precedent for online usage is not set, and just because nobody has taken it this far, does not mean it wont get there. The EFF has said as much.

People said that the Acuff case would never make it to the Supreme's, too. They were wrong just like you admit you are now.

Hey, thanks for playing! This issue ain;t going away, bet on it.

 

[zumahans]

Oh really?

You just copied and pasted my comments, then interpreted them out of context and erroneously.

You did so to try make me look stupid and damage my reputation.

You violated my copyright and owe me damages? Balderdash.

That's your argument thrown back at you.

Political speech is highly protected. A critic's right to reproduce a work, and then comment on it, is highly protected.

The rappers in Acuff-Rose were commerically-inspired. Spocko is politically-inspired. The underlying legal issues and holdings in Acuff-Rose are directly analagous to Spocko.

Why do you think ABC dropped it? According to their first letter, they supposedly had an airtight case.

There is absolutely no question at all that a person has a right to excerpt comments (written or audio) and publish them with a response and comment. Your denial of basic concepts of law betrays a total lackof knowledge. It appears your political desire to line up behond the conservative blabbermouths at KSFO has driven you to say you would deny Americans basic freedoms of speech.

 

[zumahans]

And for the record, I never said the Acuff-Rose case was about excerpting comments for free speech issues. I plainly said it was the only fair use case to reach the Supreme Court in recent years.

Tap dancing?

No.

Acuff Rose is directly applicable to the Spocko case. One defendant used parody, the other quoted and commented. Both are explicitly protected under federal laws. Both aree mentioned in Acuff Rose.

And by the way, I cited every case. Too bad you don't know how to look them up.

 

[fandango]

OK, I spoke imprecisely in a discussion over your idiotic legal claim.

For every case heard by the high court, dozens and dozens never make it out of the district courts, much less make it to Washington.

Your "bet on it" claim is totally false.

My basic argument is correct: copyright fair use law is settled, uncontroversial in the courts, and ABC backed off once its scare-o-gram was taken to a lawyer.

I have no idea whether I agree with you on broadcasting or political issues, but I want to thank you for posting the "Legal Jurisprudence" book title. I'm not so clever or so proud that I can't admit that I should read a book or two on the Law that is written for non-Lawyers, to better understand our Legal system and how it works.

Other posters here are -- well, I need to be polite. On Usenet, we call them wingnuts, because they don't debate in good faith. We treat them like the trolls and cyber-vandals that they are.

It seems to me that Spocko has a good case for legal harrassment, and the Electronic Frontier Foundation has a great precedent-setting case, to establish the principle that broadcasters can not broadcast information that they know to be untrue for the purpose of inciting listeners to commit violent acts. This is a good Conservative principle that supported government opposition to the Communist Party in the 40s, 50s and 60s. I would imagine that current Courts would be sympathetic to this argument.

fan