Earlier this week I had the privilege of being taken to lunch by a very dear friend. It just so happened this friend is a well respected Intellectual Property lawyer here in town. Now, I happen to live in a very tech savvy area, so IP law is kinda a big deal. My friend is considered top notch, locally.
We had a nice lunch, got caught up since we hadn’t seen each other in a while, and because he was done for the day, decided to have a beer or two at a nearby bar. After the first, I decided that I’d bring up the whole Hoge v Schmalfeldt mess.
I gave my friend no background except that he should watch because the entertainment value is probably worth it. First, I’d printed off Hoge’s Terms of Service (ToS). He quickly read through it and said “Looks like a lawyer wrote it, but not an IP lawyer.” So, if you are reading this, Mr. Hoge, my IP lawyer suggests that you have a true IP lawyer look over your ToS.
However, after explaining a bit about the lawsuit and such, my friend could barely contain his laughter. He gave me the subtle details that I’m sure Hoge is already aware of, but the short story is that Schmalfeldt is wrong as to his understanding of the protection that the Hogewash ToS provides him.
Again, I’m talking nuance. Little things. But, according to my friend, there is an even bigger, glaring, elephant sized problem with Schmalfeldt’s understanding of ToS.
Interestingly enough, in Federal Court, if you have a written policy, the judge will view that policy as if it is law, unless it violates federal statute. So if Schmalfeldt is right, and the Hogewash ToS reads the way he is reading it (its not), then this case is done. It’s over, and Hoge loses.
There are several nuanced points that makes Schmalfeldt wrong, and I will leave Hoge to shred Schmalfeldt’s case with those subtle points. But there is one big, elephant sized mistake that Schmalfeldt is ignoring. There can be no doubt that he is ignoring it, since he has blasted it out to the Twitterverse nonstop for days.
This is Schmalfeldt’s big “proof” that he’s right and Hoge’s goose is cooked. Except….
See, once you violate a ToS, you no longer can count on the protections of the ToS. That’s the whole point of the ToS after all. Now look at this image again, and pay particular interest to the following, which I quote…
As I am not suing Hoge, this part does not apply to me.
Oh how quickly one forgets. See, back in May, Schmalfeldt did, in fact, sue Hoge. A good portion of the lawsuit Schmalfeldt filed dealt with the blog Hogewash. So by filing that lawsuit, regardless of his dropping it mere days later, Schmalfeldt violated the Hogewash ToS. Shortly after the filing of his lawsuit, Hoge filed his Copyright Infringement lawsuit. That timing is important, since if Schmalfeldt is right (and he’s not), then prior to the lawsuit, Hoge would have no claim. But he did file a lawsuit, and that did violate the ToS, and now Schmalfeldt can expect no protection under the ToS. To make it worse, Schmalfeldt has filed a counterclaim to the copyright lawsuit that alleges various claims against Hogewash. So Schmalfeldt basically doubled down on the ToS violation, voiding any protection he may have been able to claim.
(I’d also like to point out that it is quite clear that Schmalfeldt skims instead of reads. If you go to WordPress.com’s terms of service, he is right that the ToS is covered under Creative Commons. Not that everything posted on WordPress is Creative Commons. But what’s a little detail like that, when you’re The Schmalfeldt?)
So there’s the elephant in the room. Schmalfeldt did sue Hogewash. In so doing, whatever permission may be granted in the ToS is no longer Schmalfeldt’s to enjoy. So under the most favorable (to Schmalfeldt) reading of the Hogewash ToS, Schmalfeldt is, well, shit out of luck.
Of course, my lawyer friend may be wrong. Schmalfeldt may be right. I guess we will find out this afternoon.