The continuing case of just not able to get it.

This blogs best buddy, Bill Schmalfeldt, continues not to understand the very basic aspects of copyright law.  Now he’s screaming to the rafters that he has been libeled yet again.  But he couldn’t be further from the truth.

In a blog post over at his place, which I won’t link to, he had the following to say:

As the subject of the entry to which Mr. Hoge was commenting was yours truly, he has stated for the world to read that I am willing to steal intellectual property. That is a lie. It is defamatory. It is libelous.

I am willing to use material without the writer’s permission if that use falls under the US Copyright Law’s rules of Fair Use.

-Bill Schmalfeldt on Libel

Side Note: That was used without permission.  Should a DMCA takedown be used, I’d most likely argue fair use.  And the defense would win.

Schmalfeldt was responding to a comment Mr. Hoge left on a website.  In this post, Schmalfeldt continues to misunderstand the very basis of Fair Use.  And the man claims to be a journalist.  Really?

Let me explain.  There is no Fair Use doctrine in federal law that makes it not infringement to use other people’s copyrighted works.  That’s just not true. Instead, federal law allows the Fair Use Defense for copyright infringement.  It is an affirmative defense, meaning to use the fair use defense, you must admit to the copyright infringement.  Schmalfeldt is claiming he didn’t “steal” intellectual property.  Yet in order to use the Fair Use Defense, he must first admit that he did steal intellectual property.  The Fair Use Defense doesn’t mean you didn’t steal, it just means you didn’t steal illegally.

After all, that’s exactly what fair use implies.  The whole concept is that you’ve taken someone else’s intellectual property and used it fairly and legally.  You did steal, you just didn’t break the law.  The simple fact that Schmalfeldt is claiming fair use is Schmalfeldt admitting that he did steal.  He’s just claiming the theft wasn’t illegal.

Since Schmalfeldt currently has a lawsuit filed against him in federal court, it has yet to be determined that the theft is or is not illegal.  I’ve got my opinion, but really that’s for a judge or jury to decide.  But the one thing that is not libel is claiming Schmalfeldt stole intellectual property.  Schmalfeldt admits to stealing it.  By claiming it was Fair Use.


12 thoughts on “The continuing case of just not able to get it.

    • I like how in the quote I use he admits to stealing intellectual property. That’s what “use material without the writer’s permission” means. It means you stole it.

    • He’s also stolen and published in a book (which isn’t “reporting” no matter how hard he tries to claim it is) a photo without the permission of either the owner of the photo’s rights (me) or the subject of the photo (me). Yet according to him I’m the one breaking the law by making a “bogus” DMCA claim.

      I haven’t yet been able to get out of him who he thinks owns the rights to the photo. He seems to believe that once something is published anyone can use it without even attribution. Unless of course it’s something of his.

      • I’m not going to try to figure out his misguided and clearly wrong concepts of intellectual property. If he defends the lawsuit in court the way he defends online then much mockery will ensue.

      • with rumblings of “I may just ignore it and let him have a summary judgement” Twinkie may be trying to short circuit the mockery and go straight for the sympathy cred….

        of course how he’ll report what ever the judgement against him is and what it actually is will be 2 different stories as usual with him…


  1. You have disagreed with The Great And Powerful Schmalfeldt! You have used facts, reason, logic and sense!

    Therefore, you are a psychotic, moronic, dim little tw*tc*nt!

    Go sit in the corner! And moderate yourself!

  2. I think you are playing word games, and rather silly ones. The standard, everyday use of the word “theft” implies illegality. A thief is normally understood to be a law breaker. Now I get that words are malleable things, and that it might make linguistic sense to apply the words that describe crimes under the law to describe gross but legal breaches of morality.

    “Fair use” is not illegal use and so is not “theft” in the legal sense or the most common sense of the word. Now some may argue that all that is legally deemed fair use is still immoral use, but it is not generally so regarded. I’d be happy to hear an overt argument along those lines, but it is assuming what is to be proved to give the name of a crime to that which is both legal and generally accepted as proper.

    There is no need to exaggerate Mr. Schmalfeldt’s behavior. Described without an iota of hyperbole, it’s enough to make a maggot vomit. This past weekend’s fraudulent peace order against an unemployed man hundreds of miles distant shows Mr. Schmalfeldt’s true colors, colors for which I have no adjectives sufficient to express my contempt. Nor do I believe that his purported “fair use” is legally protected or morally equitable. But to claim that anyone who ever used a quotation is a thief distracts from exposing the utter vileness that is Mr. Schmalfeldt.

  3. I get what you’re saying, Jeff. But in this case, the point was about the libel, and how saying that he “stole” isn’t libelous. That’s because fair use is a defense that requires that you first admit that you’ve taken something from someone without their permission.

  4. I get that you cannot assert “fair use” without admitting permissionless use. You are absolutely correct, and presumably even Mr Schmalfeldt, foolish as he is, understands that claiming fair use admits use without permission. It is the equation of use with theft that I find absurd: taken to an extreme, it would imply that no one could ever quote anything without morally or legally doing wrong.

    Some of us believe that words have accepted meanings and that honesty demands that we use words within those meanings. For example, I can argue that absent law property does not exist (natural law people would disagree) and that theft is merely a legal category, without any agreed upon meaning outside law. That is perhaps a very extreme argument, and one that I am not sure I would like to commit to. So to be as least argumentative as possible, quotation without permission is not necessarily theft, either in legal terms or in the common tongue. I doubt you would relish being called a thief every time you quoted someone without explicit permission.

    Claiming fair use does admit use without permission, but does not admit criminality. Of course, Mr. Schmalfeldt’s claim of fair use is about as plausible as a claim that he ran 100 yards in ten seconds yesterday. There is no need to label as thieves millions upon millions of decent men and women in order to cast shame upon the Leviathin of Elkridge.

    Sorry to be so fussy, but I believe language matters.

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