Things Don’t Go Well For WJJHoge

Judge Hollander has released her motion to deny a preliminary injunction against Bill Schmalfeldt in the Copyright Infringment suit Hoge v Schmalfeldt.  In addition to denying the injunction, Judge Hollander significantly attacks the merits of Hoge’s case, and from reading the memorandum, Hoge is facing an uphill battle in continuing the case.  Hoge’s “Fine Print” is used more than once in the memorandum to show that the is currently not evidence that Hoge can win on the merits of the case.

This is not a case in which the defendant has sought to pass off a copyright holder’s materials as his own. Rather, where defendant has used materials from Hogewash!, he appears to have generally included attribution, in one form or another, to Hoge. Nevertheless, defendant did not include a hyperlink to plaintiff’s website, because—as defendant explained at the hearing—he did not want to increase visitor “traffic” to plaintiff’s website.

– Judge Hollander in the Memorandum to deny Hoge’s preliminary injunction

Additionally, Judge Hollander seems inclined to believe that Schmalfeldt’s use, at least most of the time, could be defended under Fair Use, and although not specifically state, seemed to imply the use might even be de minimus.  Even in the case of longer uses of Hoge’s intellectual property, the Judge seemed inclined to dismiss.

To be sure, the blog posts and associated comments that defendant published in books or ebooks, see Counts I through III, appear to be somewhat lengthier than the materials implicated in other counts. Of particular relevance to plaintiff’s Motion, however, no such book or ebook has been offered for sale after April 2014.

– Judge Hollander in the Memorandum to deny Hoge’s preliminary injunction

To be clear, this is a very early point in the lawsuit, and the first thing decided, but it does not look as if Judge Hollander is looking favorably on Hoge’s case at the moment.  In fact, Hoge may not have a case at all.  Judge Hollander seemed undecided at the moment on whether or not applying for registration is sufficient.  Of course, this memorandum was not the proper place to make the final ruling, but Judge Hollander did not seem impressed with Hoge’s evidence of filing for registration.

Even if an application for a copyright is sufficient to meet the registration requirement, it is not obvious that plaintiff has made an adequate showing. “A litigant may prove registration under th[e] Application Approach by showing ‘payment of the required fee, deposit of the work in question, and receipt by the Copyright Office of a registration application.’” Caner, 2014 WL 2002835, at *13 (quoting Apple Barrel Prods., Apple Barrel Prods., Inc. v. Beard, 730 F.2d 384, 386-87 (5th Cir. 1984)). In support of plaintiff’s claim that he has submitted copyright applications covering all the materials at issue, he introduced at the hearing an exhibit purporting to be a printout depicting a U.S. Copyright Office website. See Pla. Hrg. Exh. 1 at 1. It is not a self-authenticating document, however. See Fed. R. Evid. 902.

– Judge Hollander in the Memorandum to deny Hoge’s preliminary injunction

It looks as if it is time for Hoge to put in some extra hours on his copyright infringement case, perhaps by focusing on counts I through III and providing proper proof of applying for registration.


19 thoughts on “Things Don’t Go Well For WJJHoge

  1. yesterday BS claimed the “hogeists” were spiking on the 10-yard cause many were happy BK’s case was pretty much gutted by the judge’s summary dismissal of 5 of the 7 claims for most of the defendants…
    Yet today in his hooting over the denial of the injunction, BS seems to think the opinion written for the injunction guts Hoge’s entire case and it’s all(most) over for Hoge…

    so who is spiking on the 10 yrd line?

    I’m sure Mr. Hoge has much more to show the court than has been shown so far, it doesn’t take everything you have to get the legal ball rolling and there is no reason to play your entire hand before you have to, especially when it would only help your opponent and not yourself.

    It will be very interesting to see how this proceeds….


  2. Reading Bill’s timeline, you will never convince me that Hoge didn’t orchestrate this on his own. Bill is so completely convinced of his superiority that all he thinks he needs to do now is appear in court. He won’t do a lick of preparation. He hears the judge speaking to him through that motion that he has already won. I don’t think I’ve ever seen anything quite like it. He is totally convinced he has already won.

      • Indeed.

        It’s just that the more Bill tweets, this less in touch with reality he is. Just skim it from this morning when he got the motion to now. He literally has himself convinced the case is over. As a matter of fact I was going to ask you to delete my comment lest we tip Bill off, but even if he does read it he is so far gone it wouldn’t matter.

        But we shall see.

  3. As I was saying:

    WMS Radio Network @wmsbroadcasting · 53s
    @wilsb8 Hoge thinks the ruling will help him sharpen his case. But… he’s already presented his complaint. He’s already amended it.
    WMS Radio Network @wmsbroadcasting · 12s
    @wilsb8 He has played all his cards. Unless he wants to file additional charges, which would probably put his ass in jail.

    Now, who is going to pull him aside and set him straight?

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