It’s like a broken record.

Bill Schmalfeldt just refuses to get basic legal principals, and continually demands rights he simply doesn’t have.

Screenshot 2014-06-11 15.16.53

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.

13 thoughts on “It’s like a broken record.

  1. I know I’m reading the Wikipedia page, but isn’t it the case that a work does not need to be registered to prove that copyright belongs to the author, it just helps? Nearest equivalent in the UK is to lodge a copy in a sealed and receipted envelope, for example with a bank or solicitor, to confirm that it existed in that form on that given date.

    • Yes, you’re correct. Once a work is created, it has a copyright. But without registering your copyright, you lose access to two major components of the infringement law. The ability to collect damages and the ability to have legal fees covered.

      Pretty much, In America, you have to sue for an injunction otherwise. That’s pretty much the only thing an unregistered copyright holder can do in the US. I, personally, think that the registration is a silly step. And wish we’d do away with the registry.

      • If they are going to insist on registry, the US system is going to have to figure out how to deal with the digital age. As usual, the law is a few decades behind the world.

      • If I understood it correctly, a newspaper has to register for each month, providing a complete copy of each issue (though I believe now the copyright office will accept a digital version for at least part of the time period). For a newsletter it has to be registered every three months, and a hard copy of all issues, or if strictly digital, storage media with all issues, and a hard copy print out of the first and last issue involved.

        At least that’s the basic idea I got from my reading. Info for blogs is spotty at best, but for things like newspapers, journals, and newsletters doesn’t seem to be that much better.

      • These are questions, not objections posing as questions (a form of rhetoric that I dislike). How long is the period allowed from creation to registration for registration to be valid? Presumably it is longer than 3 milliseconds, but probably shorter than 3 decades. And, assuming timely registration is made, do damages accrue from the time of (1) infringement, (2) submitting the forms for registration, or (3) completion of registration.

        As for the affirmative defense of “fair use,” how in the world can he make that argument when he excluded from his use any mention that it was specifically labelled a parody? In other words, his argument that he needed to quote so much to prove his point of being subjected to unwarranted attack is undercut by his failure to quote that which rebuts his point. It is not fair use to quote a sentence and omit the word “not.”

      • In general, you’ve got to file your registration prior to the infringement. However, there is a grace period of three months. So if an infringement occurs within the grace period, you can register after and still claim infringement.

        You have, I believe, 5 years to register. But if an infringement occurs before registration and after 3 months, you are hobbled in your enforcement of your copyright. That’s from memory, but I think that’s mostly correct.

        As for the Fair Use Defense, it’s easier to say Bill is clueless on what fair use means beside his rantings. I have not read his book, but as I understand it Bill completely mischaracterized the work, presenting it not as a parody of his own satire but as a work of “fact” that was libelous. That will hurt his fair use defense, since he knowingly misrepresented the work. That has to do with the first “pillar” of fair use, the nature of the work.

      • he not only misrepresented the work one time, but in his second attempt he “paraphrased” the blog, still misrepresenting it as a libelous blog attacking him and is family with no mention that it was a parody of his own work first, AND including a smarmy “I cant actually reproduce it because I’m having false DMCA takedowns issued because of it”…

        lying liars gotta lie

      • I’m no expert, but my understanding of the three month thing is essentially the same as yours. The irony? I learned of this by reading the pages in their entirety that CBBS selectively cited on Twitter, his blog, etc.

  2. For someone who claims to be a football fan, Bill doesn’t seem to know much about playing the clock. Why did he file his answer and counterclaim so quickly? Why did he file his amended complaint and answer before Hoge filed today’s piece?

    Was he pushed by the Kimberlin/Rauhauser bunch? Is his anger and self control just that poor?

    Even if one had written these documents weeks before due, you should wait to file. You aren’t going to ‘get the scoop’ on a competitor. You are giving your opponent time to defend and counterattack.

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