"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." *
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