Bill Schmalfeldt is wrong again.

In the continuing series of posts on his blog that he really should keep his mouth shut about, this blog’s Best Buddy gets it wrong again. Here’s the quote.

For instance, as soon as I hit “publish” on this post, it is mine. I own the copyright.

But if someone else uses it, and I wish to sue them for it, I have to FIRST file my copyright claim for this post with the US Copyright Office.

I am not making this up.

Bill Schmalfeldt on his blog

That simply isn’t true. I know what he was trying to say, and he may be correct in what he’s trying to say. But he got a double wrongo and didn’t say what he thought. And what he did say is wrong.

Now I’m not going to go out of my way to help him, but it is wrong. That’s why you brag at the end of the game. At the end, for need I remind anyone the dangers of bragging in the middle, I need only show them this:

Full disclosure, I’m an Auburn fan, so I could show this over and over again.

Again, don’t start bragging till it’s all over.  Auburn lost in the National Championship Game, a game that only one other SEC team ever lost, and that was to a SEC team.  You don’t know how it’s gonna turn out until the event is over.  You never know when that last second is going to change things forever.

And that’s where Best Buddy has a problem.  He needs to shut up.  He thinks he has won, the game is over.  Hoge hasn’t filed an answer to the counterclaims, nor has he filed an amended complaint.  Best Buddy thinks that he has the magic bullet, but he is mistaken.  Hoge has options, and Best Buddy’s magic bullet isn’t as magical as he thinks.

It’s a devastating defense, I won’t quibble.  I’ve no idea what Hoge’s legal strategy is from here.  Hoge’s apparent failure to register his copyrights would seem to at best pull the teeth out of the infringement lawsuit.  At worst, it will get the lawsuit dismissed.  But there are salvageable actions in his complaint that I believe Best Buddy is ignoring while bragging about his victory.  And the fact that the above quote is wrong, proves that Bill isn’t seeing the whole picture.


32 thoughts on “Bill Schmalfeldt is wrong again.

  1. I know virtually nothing about intellectual property, but one thing that the federal suit by Kimberlin has shown is that courts are reluctant to to dismiss pro se pleadings for purely technical defects, particularly if they are curable and do no harm to the other party. So, out of the depths of my ignorance, I will say that if I were Bill Schmalfeldt, I’d be very nervous about cure. Again speaking out of ignorance, there seem to me to be obvious ways to effect cure if Schmalfeldt is even correct about what he asserts to be technical defects in the pleading. (People who seem quite familiar with the law of intellectual property have denied that Schmalfeldt understands the full subtlety of that law.).

    By the way, this gives away nothing. If cure is legally possible, Krendler and Hoge are way more than smart enough to do it, and Bill Schmalfeldt cannot prevent them from doing so. The worst that will happen in that case is that a new suit will need to be filed.

    • That is fair enough. I’ve heard the actual arguments some are making, but I personally think that Bill’s defense is strong. If others are right, it will effectively take the teeth out of the suit since only actual damages can be claimed.

      However, you are correct. Bill is missing something important, and if the court allows Hoge to fix his amendment, there are some things in there that do still have teeth and should concern Bill. And his current rant on twitter is completely off the mark.

      • You seem to know a lot more than I do about the issues, but I do get your drift about provable damages. I doubt, however, that Krendler and Hoge ever expected to get significant monetary damages. Schmalfeldt is likely close to judgment proof (many federal payments are not subject to garnishment). I suspect that they primarily want Schmalfeldt to stop ripping off their stuff and perhaps want to show him to be a fool as well.

        Who has standing to sue? Either Hoge does or Krendler does, and Schmalfeldt is doing his damndest to haul Krendler into the case. Was there an assignment of some of Krendler’s claims to Hoge? The only people who know are wisely not talking. Can such an assignment be retroactive? What is the proper measure of damages? I shall defer to those who understand these issues. I just know that there are many ways to skin a legal cat.

  2. I think the words …before bringing a suit… speak for themselves. And damages? I sold one book. To myself. There are no damages.

    • Since you’ve answered me here. Let it be known.

      In answer to your question to me in the unapproved comment….

      IF you were Hoge, how would you deal with the portion of the US Copyright Law that says you have to register a copyright with the US Copyright Office BEFORE filing an infringement complaint… which he has not.

      This post serves as my response.

    • Hate to say it but I’ve got a paperback next to my desk with the parody in question taking up nearly 10 pages…..

      • Dear heart, what part of “He has to have filed a copyright with the US Copyright Office before filing an infringement suit in US District Court” is giving you the most trouble? And which book are we talking about? The VERY best Hoge COULD get since he hasn’t filed is damages. My profit for your buying a book is about three bucks.

      • All I was saying was that if you are discussing the book with the uncredited, non-fair-use Krendler parody, you obviously sold at least 2 copies, because I have one.

        And stop using cutsy terms of endearment, you [redacted] because we all know that you consider me to be anything but.

  3. Now Mike, due props and all that. But who put you in charge of interrogating me? If you have questions, you can follow me on Twitter, DM me, and ask me politely without this conspiratorial attitude. I have nothing to hide and will gladly answer any question you have, except for ones I am bound by journalistic ethics not to answer. But this blog of yours for the purpose of interrogation? Meh. We’re done.

    • No, Bill. I will not follow you. I am bound not by any rule of yours. I never will be. And as for Journalism, FUCK YOU. You sir, may possibly, once, in the dim past, been a journalist. But that time is far gone. I will only interact with you here, on my bandwidth. And I’ll point that out to anyone you bring me up with. But not to you. This is your notice. The only place I’ll discuss anything with you is here. Not your blog. Not twitter. Not anyplace you have an ounce of control. I’ve been overly polite to you. Your own critics have called me out for being too polite to you. Play fair here, or take your ball and go home.

      • Because you seem to be enjoying your little power trip on your blog. Seriously, Mike, your opinion means less than nothing to me and if you are going to be rude by redacting and limiting my ability to respond, then I have nothing to say to you. You are not a prosecutor. You don’t know me, you know nothing about me or my life, yet you try to write about me with an expertise you do not have. If you choose to write about me, that is your business. But I am not going to participate in your defamatory efforts. Be well, enjoy life. Don’t worry about me, I bear you no ill will.

      • Defamatory? Exactly what have I written that’s defamatory? I’ll even give you the Copyright Theft claim for free. I’ve been nothing but nice to you, Bill. I’ve even asked you for a link to a pro-You post that I admit, to my shame, I lost. But if you don’t want to play, that’s good. Adios. See Ya. Aloha. But that doesn’t stop me from playing. It just means that my playing without you goes, well, unanswered. Which must really get under your skin. I mean, I’ve called you a pornographer. And I’ve rebutted your claim that you’re not. Are you really going to just go away and let that stand? Are you really going to go off into nowhere and let your rivals point to that last post I made about you and say “see, he didn’t even deny it!” Good for you, Bill. Stick to your principals.

        As for my redacting, I Haz Rulz. You aren’t the only person I’ve redacted. If you want to expound on unrelated things to the questions and/or posts here, you don’t have that right. You do have your own blog to post at. And I have my own blog to respond at. So if you don’t feel like playing by my rules, use your own bandwidth.

      • Moke, I am not a pornographer. Other than one hilarious incident when I taped my wife and I making love — after which we watched it once, laughed until we cried — and erased the tape, I’ve never take a picture of a naked person. Your claim that i am a pornographer, that is, one who creates pornography, is incorrect.

        And since when does it matter what I say? I’ve been rebutting these fools for over a year and they just ignore my rebuttals and continue to make the defamatory statements. What should make me believe that anything will be different on your blog?

        I refuse to take part in my own defamation. If the kids want to play, let them play. I have grownup things to do that have nothing to do with you, with Hoge, or with any of this other mess.

      • I’m really glad to hear that you’ve things to do that don’t involve me, Hoge, or any of this other mess. Seriously, that makes my day like nothing else you could have ever said.

        And yet despite your sorta funny and totally creepy story about you and your wife, which under my rules I should have redacted but didn’t because I realize that redacting it would have made it even creepier, you have still failed to respond to the points I have made about federal law.

        To which, I explained that being the photographer isn’t what makes you a pornographer. At all. I’ve explained what federal law makes one a pornographer and that, under that law, you have yet to rebut that you are a pornographer.

        I’ll even give you a freebie. Under the same federal law, if the photoshopped picture of you with testicles on your chin was created prior to September 2009, then it is not pornography. If it occurred after 2009, then it may be pornography. The proper way to deal with it isn’t demands for information you don’t have the right to have, but to talk to a federal district attorney. If they determine it is pornography, only they can request to see the records to make sure the pornographer is keeping proper records.

        On the other hand, the multiple sources I have about the image you at the least distributed if not created, is what makes you a pornographer. I, however, have no call to question your record keeping other than your previous demands to others. I won’t be calling anyone, or submitting a report to anyone (other than here), about it.

        So either go home or put up. The questions aren’t going away just because you don’t like them or refuse to understand them.

      • You’ve no idea what picture is currently under seal in a Maryland court to which you were a defendant and to which others have given me a screen capture for?

        Or are you saying you’re such a prolific pornographer you can’t recall a specific picture?

        Just curious.

      • I know Hoge presented some pics that he said were porn but I didn’t see them. Do any of them show penetration?

      • Showing penetration is not the definition of pornography. Simulated sex counts as well. And like it or not, Homosexual acts, simulated or real, are considered pornography more easily under the law than heterosexual acts. Sad state of affairs, but true.

      • And if it’s under seal and you have a copy, how dare you raise questions about how I obtained the letter Aaron Walker’s boss wrote?

      • Because I was not given the picture under seal. I was given a screen capture by a person who was not involved in the dispute of either a blog post or tweet you used. And I do believe I stated in that question I found it to be the weakest of them all. I’ll not reveal my source and I don’t expect you to either.

      • Any time you’d care to explain the hypocrisy of condemning me for having “sealed documents” while you just claimed to have a document that was sealed in the Peace Order hearings, please share. Think of it as a “teaching moment” for all of us.

      • Consider yourself taught. See my previous reply. Now, care to go into the details of the questions at hand, and move them to the correct post, or do you want to continue with your silly word games?

      • Actually, let’s change the subject if you don’t mind. Why did you name your blog after Jack’s first wife, and did you really believe I wouldn’t find out who you actually are? And KNOWING who you are, do you really think I would have a problem dragging you from Illinois, out of daddy’s house, and into a Maryland courtroom?

      • Bill, I’ll let this one go. But I’ve told you before, don’t issue threats here. This is my bandwidth, not yours. Play nice, or don’t play here at all.

      • No threats. Just wondering why you named your blog after Jack’s first wife. You’ve been outed by a third party. Now, shall we drop the artifice and refer to each other by actual names, Lynn? And do you also write as “Paul Krendler”?

    • There are 1,079 people in the U.S. named Michael Malone.

      Per Each of them is a special snowflake.

      There are 3 people in the U.S. named William Schmalfeldt.

      I will not speculate as to how many of the others any one of them may have eaten.

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