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.