Chatalas Shrugged

How a Small-time Blogger Wreaked Havoc With a Media Giant

The media landscape has changed considerably amid the emergence of the Internet. People read, listen to and watch their news and entertainment online more than ever. Furthermore, the wired world offers the ability for all citizens to create their own content, including via blogs, podcasts and videos. This trend toward online media has posed challenges to those in the traditional media. Newspapers, radio and television have had to adjust to these new realities, altering business practices and fine-tuning approaches to consumers and advertisers.

At the same time the online era has also made it increasingly easy to hold the media accountable. Everyone can be a media critic or watchdog. Citizens and organizations scrutinize the media, searching for mistakes, bias and troublesome business practices. Bloggers use their websites to comment on and publicize unfair and inaccurate coverage. And some activists even challenge broadcast licenses and organize boycotts, claiming media companies aren’t living up to their commitment to provide quality programming. The digital tools are making it easier for these activists to track the media, and to communicate, organize and raise money.

Common Complaints About the Media
Among the largest points of contention surrounding today’s media are concerns about corporate ownership and consolidation, and uneven coverage and programming. Both subjects have become increasingly political, with democrats and republicans entrenched in the debates

Today roughly six major corporations dominate the media, including Time Warner, Disney, Viacom and NewsCorp (MediaChannel.org, 2001). Beyond the big six, there are several other corporations that own large numbers of newspapers, radio and television stations, and other media entities (Columbia Journalism Review, 2007). The Federal Communications Commission (FCC) has gradually attempted to relax ownership restrictions, which would enable these companies to acquire more media properties. This concerns activists on both sides of the political aisle who believe that fewer media companies will lead to fewer and less diverse voices in the marketplace of ideas. In 2003 an odd alliance of liberal and conservative groups loudly protested proposed changes to the media ownership rules; the US Congress paid attention, and overturned the rule changes. In 2007 the FCC passed a similar rule change, and activists are hoping that congress will intercede once again.

Another common complaint about the media is bias and slanted coverage. Not surprisingly, both republicans and democrats say the media is stacked against them. Conservatives have claimed for years that the media is liberal, saying that journalists typically vote for democrats, and that news stories reflect as much; the New York Times is a popular target of enmity by the right. The liberals counter that the right has “worked the refs” (harped on the media for being liberal) for so long that the media has made a conscious effort to provide more airtime to conservatives; the left complains that the media merely prints everything the conservatives utter without objective analysis of its truth, and that the media impose a different standard on democrats than they do republicans.

Perhaps a contributing factor to these grievances is that the media cares most deeply about the bottom line. The media corporations pressure the FCC and elected officials to make decisions that will enhance profits and growth. Journalism is viewed as a product that is valuable only as long as it contributes to the balance sheet. And the elimination of the fairness doctrine in 1987 is also attributed to the perception of uneven coverage and lack of fairness.

Media Companies Challenged by Media Watchdogs
Over the last few years, there have been several instances of groups organizing boycotts and challenging broadcast licenses over issues of local programming, indecency, and unfair coverage. They argue that media companies are shirking their responsibilities as set forth by the government. Federal law says that broadcasters may be licensed to use the public airwaves only if they serve the “public interest, convenience and necessity.”

In 2006 activists in Portland filed a petition with the FCC challenging the renewal of broadcast licenses of that city’s television stations. The Money in Politics Research Action Project contended that the stations failed to provide public interest programming, including local election coverage (Portland Mercury, 2006). The group cited a study of news coverage during the 2004 general election that showed that only one percent of news time was spent on local political coverage. FCC rules state “the basic responsibility to contribute to the overall discussion of issues confronting the community is a duty for each licensee.” The FCC eventually renewed the stations’ broadcast licenses.

Also in 2006, the Parents Television Council (PTC) challenged the broadcast license of CBS affiliate KUTV in Salt Lake City. The group claimed KUTV committed indecency violations in its rebroadcast of a “Without a Trace” episode that included a teen orgy scene (Eggerton, John, Broadcasting and Cable, 2007). After the original airing in 2004, CBS received thousands of complaints; Viacom, the CBS parent company, paid $3.5 million to dismiss all previous complaints and agreed to monitor itself more closely to avoid further violations. But when the same episode ran again, the PTC claimed that Viacom failed to live up to the consent decree, and subsequently filed the license challenge of KUTV. In 2007, CBS paid $300,000 to settle the license dispute.

Sinclair Broadcast Group, which is one of the largest media companies in number of stations owned, has faced the duel threats of license challenges and organized boycotts. Sinclair has drawn the ire of progressives who feel the company blatantly advocates for conservative causes and positions. The company requires its stations to air commentaries by Sinclair executive Mark Hyman which routinely praise republicans and denigrate democrats. And it ordered all of its ABC affiliates to block a Nightline tribute to soldiers who lost their lives in Iraq (Jensen, Elizabeth, Columbia Journalism Review, 2005).

In October 2004, less than a month prior to the presidential election, the company announced its intention to run “Stolen Honor,” a documentary critical of John Kerry’s military service in Vietnam. In response to the documentary, activists initiated a boycott against Sinclair’s local stations; they targeted local businesses, threatening to withhold support unless they stopped advertising on Sinclair stations (Journalism.org, 2005). When Burger King pulled its ads, Sinclair’s stock slipped, leading to concerns in the financial world. Sinclair subsequently changed its plans for “Stolen Honor” and instead ran a program that detailed the documentary allegations.

Activists also vowed to challenge Sinclair station licenses when they come up for renewal, guaranteeing that Sinclair’s practices remain in the glare of the FCC, congress and the public.

The Spocko Case: Blogger Takes on Disney
A recent and pertinent case of media accountability is that of Spocko, a self-described “5th tier blogger” in San Francisco who took on a major media corporation. This story highlights several of the issues involved in today’s media climate: media ownership, online activism, and legal matters.

ABC/Disney owns a national network of radio and television stations and affiliates. In 1996 Disney closed one of the biggest deals in media history when it acquired Capital Cities/ABC for $19 billion. That deal brought Disney the ABC television network and its 10 owned and operated stations, considerable cable television holdings, over 20 radio stations, and seven daily newspapers (Spring, Greg, Los Angeles Business Journal, 1995).

Today, Disney represents media consolidation to the extreme, with a wealth of properties across the media spectrum. Included among its portfolio are ten television stations and 21 radio stations. In addition Disney properties include cable stations (ESPN, Disney Channel, E!), magazines and newspapers, film (Disney, Miramax), online services, books, professional sports teams, theme parks and retail stores (Columbia Journalism Review, 2007). Its earnings in 2007 were $35.5 billion, 3.6 percent above its 2006 numbers (BusinessWeek, 2008).

Needless to say, the Disney label on its myriad properties is of immense benefit. To this day, Disney has come to represent family-friendly programming and society looks favorably upon the Disney brand. Not only is that helpful in the marketing of its products, but also in advertising sales, the primary revenue source of media companies. As a result of its sterling reputation, selling advertising on a network of stations under the Disney umbrella is a beneficial position in the market.

But media activists have been concerned about the programming on Disney stations, claiming that it favors conservatives. Critics of Disney cite several examples of its rightward tilt, and disdain for fairness. In 2007 it broadcast the controversial miniseries “Path to 9/11,” created by conservative filmmakers, and which was considered to be historically inaccurate in its premise that the Clinton administration was to blame for not preventing the 2001 attacks. A few years prior, though, Disney refused to distribute Michael Moore’ documentary “Fahrenheit 9/11,” claiming it was overly political (Boehlert, Eric, Media Matters, 2007). Disney even put Rush Limbaugh on its Monday Night Football broadcast; he was fired after a few weeks when he made racially offensive comments on air.

Meanwhile, the radio is where some of the most egregious offenses occur. Talk radio, one of the most commonly utilized media formats, has trended to the right politically for two decades. A 2007 report, “The Structural Imbalance of Political Talk Radio,” confirms that our radio airwaves are dominated by conservative voices. Among the findings in the report: weekday programming on the 257 news/talk stations controlled by the top five commercial stations is 91 percent conservative; each weekday, in terms of actual minutes, there is ten times as much conservative talk as progressive; and in the top 10 radio markets, 76 percent of the news/talk programming is conservative (Center for American Progress, 2007). This rightward tilt has led to increasingly partisan rancor regarding fairness on the public airwaves, and concerns that those with radio licenses are not serving the listening needs of all our country’s citizens.

One ABC/Disney radio station, KSFO in San Francisco, found itself under fire for its incendiary and conservative commentary. The station features several radio hosts who had a history of racial intolerance and for advocating violence. Included among the various hosts’ documented comments:
• Referring to Senator Barack Obama, who has a black father and a white mother, as a “halfrican.”
• Asking a caller to prove he wasn’t a Muslim, encouraging him to “say Allah is a whore… say you love eating pig.”
• Calling the country of Indonesia “just another enemy Muslim nation,” and threatening “You keep screwing around with stuff like this, we’re going to kill a bunch of you. Millions of you.”
• Commenting that for Egyptians and Arabs “lying is as natural as breathing.”
• Threatening House Speaker Nancy Pelosi: “We’ve got a bull’s-eye painted on her big, wide laughing eyes.”
• Saying of New York Times executive editor Bill Keller, and nine other Times editors, “Hang ‘em.”

In 2006 a blogger and activist who goes by the pseudonym of Spocko, compiled a series of these offensive comments from KSFO and posted them on his blog, SpockosBrain. In conjunction, he started a letter-writing campaign to KSFO advertisers, informing them of some hosts’ penchant for inflammatory comments and urging them to cancel their ads. Spocko not only directed the advertisers to the distasteful audio clips, but also appealed to their business sense. One of these letters, dated November 20, 2006 and addressed to AT&T, includes the following verbiage:

Thanks to radio hosts from KSFO your brand is being associated with torturing and killing people. Would your marketing people be happy to hear your commercial ran after Lee Rogers said this about a black man in Lincoln, Nebraska?

“Now you start with the Sears Diehard the battery cables connected to his testi*les and you entertain him with that for awhile and then you blow his bleeping head off.” (Audio link)

You should know the person calling for the execution and torture of the black man in that clip READS THE AT&T commercials on the air. Right now on KSFO Lee Rogers is THE VOICE of AT&T to the SF Bay area. (Audio Link)

Sadly, calling for the death and torture of individuals and groups of people is a regular occurrence on KSFO 560 AM, owned by ABC Radio Disney.

And…

I understand you can’t listen to all the shows you advertise on – no one can. You rely on the accurate representation of the sales reps and the show description. But you don’t need to take my word, listen to the programs. You probably won’t have to listen long to hear something that offends or disgusts you. If you wish to hear the complete context on any clip or the audio during a date your ad ran contact me I have an educational archive of audio clips, I’ve listed a few below.

I want to emphasize that if you withdraw your ads you aren’t limiting their free speech, just removing your paid support of it. Some other company without the values you describe on the AT&T website can support them. You can choose to advertise elsewhere. This is really about YOU. Do YOU want to be associated with these comments? Do you want your company and brand to be associated with these comments?

(Excerpts from Mike Stark diary on Daily Kos website, 2007.)

This campaign resonated with some advertisers. MasterCard, Bank of America and the Michigan Economic Development Corporation pulled ads from KSFO programming after hearing excerpts and determining it was divisive. A spokesman from the Michigan Economic Development Corporation said, “the speech was about as offensive as one could imagine.” (Garofoli, Joe, San Francisco Chronicle, 2007). Visa, Netflix and others also reportedly curtailed advertising on KSFO.

In December, 2006, ABC Radio Networks responded by sending a cease and desist letter to Spocko’s Internet service provider claiming that the excerpts on his site violated copyright law. The letter demanded the audio clips be removed immediately. The service provider, 1&1 Internet, took down Spocko’s website soon thereafter. 1&1 said it was acting on the advice of its lawyers, and that “the decision was made to remove the copyrighted material from our servers until the matter is resolved, whether by the parties involved or the judicial system.” (Cohen, Noam, New York Times, 2007).

The altercation got the attention of liberal bloggers, who gave the story widespread coverage. The case raised the hackles of digital freedom advocates who were concerned that ABC/Disney’s action would have a chilling effect on online debate, and that corporations can silence critical voices by merely threatening legal action. One organization, the Electronic Frontier Foundation (EFF), came to Spocko’s defense in the matter, providing legal consultation.

The foundation countered ABC/Disney’s claim, asserting that fair use applies to the excerpts posted by Spocko. EFF attorney Matt Zimmerman, in a letter dated January 25, 2007, wrote that the “characterization of Spocko’s criticism as copyright infringement is false. The use of these audio clips was clearly protected fair use under copyright law” (Electronic Frontier Foundation, 2007).

Under copyright law (US Code 17 107. Limitations on Exclusive Rights: Fair Use), fair use permits the use of copyrighted material for the purposes of commentary, parody, education, or artistic expression. Fair use is determined by the consideration of four factors: the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion used; and the effect of the use upon the potential market or value of the copyrighted work. All four factors favor Spocko:

1. The purpose and character of the use.
The use of copyrighted words for criticism and commentary is permitted under copyright law. In Chicago Board of Education v. Substance, Inc., 2003, the Seventh Circuit Court of Appeals wrote, “Copyright should not be a means by which criticism is stifled with the backing of the courts.” This case involved standardized tests created and copyrighted by the Chicago Board of Education. A teacher published the tests to demonstrate that they were deficient. The courts ruled in favor of the board of education because it would be “goodbye to standardized tests in the Chicago public school system” (Stull, Jillian Clark, Journal of Law and Education, 2006). Nonetheless, facets of the decision upheld fair use for criticism; the ruling states that fair use facilitates “criticism of copyrighted works by enabling the critic to quote enough of the criticized work to make his criticism intelligible.” As Zimmerman at EFF notes, Spocko is covered in this regard because he posted audio excerpts of KSFO broadcasts in order to criticize its content and to provide context for commentary about talk radio in the area.

2. The nature of the copyrighted work.
This factor recognizes that some works are more deserving of copyright protection than others (Rich, Lloyd, 1996). Informational works are differentiated from entertainment; creative work typically falls closer to the core of copyright protection. Facts and information are more acceptable for dissemination than fiction, particularly if the material is in the public interest. News and talk show material is more likely to be subject to appropriation for fair use purposes. In Spocko’s case, the audio excerpts he used were taken from broadcasts intended to be, and presumably described by the radio station as, informational in nature.

3. The amount and substantiality of the portion used.
The excerpts Spocko posted were merely fragments of KSFO’s total broadcasts. The short clips were taken from programs that broadcast several hours each day and hundreds of hours per year, and clearly are not significant in terms of quantity. In addition, KSFO has claimed that the comments in question are anomalies and not common in respect the total number of broadcast hours. That would indicate that the excerpts are not considered to be the “heart” of the work.

4. The effect of the use upon the potential market or value of the copyrighted work.
If the use of the material deprives the copyright owner of income, or impairs a potential market for the work, the material is more likely to be protected. In Spocko’s case, the copyrighted material, those broadcast words that he posted, have not become less valuable as a result of being heard on a blog. KSFO can still use its material in any way it chooses to try to make money. And while ABC/Disney may claim it has been financially harmed because of the loss of advertising, it is irrelevant in regard to fair use. In Campbell v. Acuff-Rose Music the Supreme Court said, “the role of the courts is to distinguish between biting criticism that merely suppresses demand and copyright infringement which usurps it.” Spocko is using the material for criticism, and he cannot be held liable for the decline in advertising revenue.

On all counts, Spocko’s use of KSFO material is protected by fair use. He has a new service provider, and the audio clips can be found around the Internet after sympathetic bloggers made them available to draw attention to the issue.

Similarly, the circumstances surrounding documentaries’ use of copyrighted material serves to support fair use in case of Spocko. Upon facing exorbitant costs to use movie clips in Wanderlust, a documentary about American road movies, the Independent Film Channel (IFC) decided to aggressively cite fair use so the film could be completed within budget. Alarmed by the prospect of nearly $500,000 in fees for clips from movies such as “Easy Rider” and “The Grapes of Wrath,” the IFC turned to entertainment lawyer Michael C. Donaldson to provide insight on copyright law (Dutka, Elaine, New York Times, 2006). Donaldson indicated that under fair use filmmakers, news gatherers, critics and educators can use material for free so long as they add something to it, use just the amount needed to make a point, and don’t harm its value. Armed with this information, the IFC told copyright holders that unless they accepted $1,000 per clip, the documentary would move forth and use the material, citing fair use as the defense. Fair use, in this instance, provides an obvious application to Spocko’s situation: he surrounded the clips with description and commentary, he used small portions to make his criticism, and his use of the excerpts did not lessen the value of the material.

There were other legal issues brought forward by the Spocko case. The EFF claimed that the ABC/Disney letter amounted to intimidation, and that the corporation could be liable for misuse of the Digital Millennium Copyright Act (DMCA) for misrepresentation of liability (17 USC 512(f)). The DMCA allows copyright owners to issue subpoenas to identify alleged copyright violators (Electronic Frontier Foundation, 2006). Since Spocko is covered by fair use, ABC/Disney may be misusing the DMCA and intellectual property law in efforts to subdue him.

Amid the controversy, Spocko also raised the possibility that he may face a CyberSLAPP suit (an online version of Strategic Lawsuits Against Public Participation). In such suits, a target of criticism files a lawsuit, often frivolous, so it can issue a subpoena to an Internet service provider to discover the identity of an anonymous critic (Cyberslapp.org). Online activists claim that these suits are attempts at intimidation and that they lead to a chilling effect on freedom of expression. Spocko, citing fear for his safety, has steadfastly maintained his pseudonym and resisted sharing his identity.

In March of 2007, ABC/Disney sold its 24 radio stations to Citadel Broadcasting Corp. for $1.35 billion. In March of 2008, Citadel did not renew the contract of Melanie Morgan, one of KSFO’s talk radio hosts to which some of Spocko’s excerpts are attributed. KSFO said the decision to end the relationship with Morgan was due to an “across the board cost-cutting mandated by our parent company” (WorldNetDaily, 2008). Citadel reported 4th quarter losses of $848 million in February, 2008, and an annual loss of $1.29 billion; the previous year the company had $48 million in annual losses (Associated Press, February, 2008). Spocko contends that his actions indirectly led to Morgan’s termination, as ad revenue declined due to his efforts. He also says that Citadel will continue to struggle financially: “The number one source of revenue for the ABC Radio Network is advertising. With Disney gone they will no longer have the brand muscle to sell bulk ads or the deep pockets to sustain them from other sources during down times,” (Richman, Josh, Political Blotter, 2008).

The case of Spocko demonstrates the ease with which activists and organizations can hold the media accountable. Armed with digital tools, media critics can scrutinize, organize and publicize in an efficient manner. As these activists continue these efforts, it will be engrossing to assess whether they are ultimately effective in holding the media to higher standards that are in the public’s best interest.

Resources

Associated Press. Citadel Broadcasting 4Q loss widens. February 29, 2008.
http://news.moneycentral.msn.com/ticker/article.aspx?Feed=AP&Date=20080229&ID=8262248&Symbol=CDL

Boehlert, Eric. Spocko, Glenn Beck, and ABC. Media Matters. January 6, 2007.
http://mediamatters.org/columns/200701160012

BusinessWeek, Disney Co. Earnings. 2008.
http://investing.businessweek.com/research/stocks/earnings/earnings.asp?symbol=DIS

Center for American Progress. The Structural Imbalance of American Talk Radio. June, 2007.

Cohen, Noam. Bloggers Take on Talk Radio Hosts. New York Times. January 15, 2007
www.nytimes.com/2007/01/15/technology/15radio.html

Columbia Journalism Review. Who Owns What? 2007.
http://www.cjr.org/resources/

Dutka, Elaine. No Free Samples for Documentaries: Seeking Film Clips With the Fair-Use Doctrine. New York Times. May 28, 2006.
http://www.nytimes.com/2006/05/28/movies/28dutk.html

Eggerton, John. CBS Tempts FCC Ire Over ‘Trace’. Broadcasting & Cable, October 29, 2007.
http://www.broadcastingcable.com/article/CA6494954.html

Electronic Frontier Foundation. Spocko, KSFO, and the Blogosphere’s Allergy to Copyright Thuggery. January 12, 2007.
http://www.eff.org/deeplinks/2007/01/spocko-ksfo-and-blogospheres-allergy-copyright-thuggery

Garofoli, Joe. Trying to censor blogger: Owner of conservative radio station KSFO demands liberal critic quit using audio clips. San Francisco Chronicle. January, 11, 2007.

Jensen, Elizabeth. Sinclair’s Shadow: Canned news and conservative commentary – Coming soon to a station near you? Columbia Journalism Review. May/June 2005.
http://cjrarchives.org/issues/2005/3/jensen.asp

Journalism.org, State of the News Media, 2005.
http://www.stateofthenewsmedia.org/2005/narrative_localtv_ownership.asp?cat=5&media=6

MediaChannel.org. Media Ownership. 2001.
http://www.mediachannel.org/ownership/

Portland Mercury, Local TV News Fails, December, 2006
http://www.portlandmercury.com/portland/Content?oid=97453&category=22107

Rich, Lloyd L. How Much of Someone Else’s Work May I Use Without Asking Permission?: The Fair Use Doctrine, Part I. 1996.
http://www.publaw.com/work.html

Richman, Josh. Spocko weighs in on Melanie Morgan’s layoff. Political Blotter. March 4, 2008.
http://www.ibabuzz.com/politics/2008/03/04/spocko-weighs-in-on-melanie-morgans-layoff/

Spring, Greg. Los Angeles Business Journal, August 1995.
http://findarticles.com/p/articles/mi_m5072/is_n32_v17/ai_17377197

Stark, Mike. Spocko Rocks ABC! Micky Mouse blinks! Updated: Spocko jumps in
DailyKos. January 3, 2007.
http://www.dailykos.com/story/2007/1/3/202110/2838

Stull, Jillian Clark. Copyrighted Standardized Tests: Is There a “Fair Use?”
Journal of Law and Education, October, 2006.
http://findarticles.com/p/articles/mi_qa3994/is_200610/ai_n17190730/pg_1

WorldNetDaily. Melanie Morgan off KSFO airwaves: Move America Forward founder connected to talk radio audience for 14 years. March 03, 2008
http://www.worldnetdaily.com/index.php?fa=PAGE.view&pageId=57965