Bill Schmalfeldt just refuses to get basic legal principals, and continually demands rights he simply doesn’t have.
The first thing the court will do in a copyright infringement case is make sure of the ownership of the copyrighted material. That is between the Judge and the Plantiff. If Hoge filed for copyright prior to filling the lawsuit, if the court accepts that filing for copyright is all that is needed, and the transfer of rights is valid, then the court will rule that Hoge has the copyrights required to file the suit. If not, we will see where it goes from here. The one thing Bill doesn’t have the right to know is when Hoge filed copyright and how the rights were sold. He may find out when the court rules on the case of copyright, but since the only complaint of the copyright that Bill rose in his answer was “lack of registration” and “lack of transfer,” he is stuck with those defenses against the existence of copyright.
Again, assuming that Hoge proves to the courts satisfaction that he did file for copyright, the only defense left for Bill is fair use. And fair use its the biggest crapshoot in the legal world. It is decided on a case by case basis, so there is no precedent. If this suit is approved to continue, then Bill is putting faith in a judge and a jury that he had no choice but to use entire posts to make his points. I do believe the jury instruction will be detailed on this case.
What’s funny is that Bill set him self up for an affirmative defense strategy, and only an affirmative defense strategy. Once the courts approve the claim of copyright, Bill can not raise a question about the copyright. So, for example, when Hoge brings before the judge or jury the infringement of the Are you pondering what I’m pondering” post, assuming the court approve that one, then Bill can’t argue that he used only one sentence from the post. (And since it was only one sentence, that’s 100%). Hoge is arguing that he has the copyright of the entire page as a whole, and if the court accepts that, in front of the jury Bill can’t disagree. That will be decided, Bill set his defense not Hoge. And Bill foolishly chose to stand behind an affirmative defense. He can not claim he didn’t infringe the work, or he can and hear the sharp ringing voice of Hoge screaming objection every time he does. He now has to admit to the infringement, but claim that the infringement is fair use. We will see how, after every single time, at the sheer volume of infringement, the jury is sympathetic. I suspect not.