The Breakdown of the Meltdown

Bill Schmalfeldt, playing the part of the brick wall, had a meltdown here at Running Wolf Blog, and now it is time to dissect it.

Schmalfeldt was in rare form on twitter ranting on and on about how WJJ Hoge was destined for a orange jumpsuit for copyrighting NASA photographs.  It is important to note that Schmalfeldt had been harping for days about the NASA photographs, and how the attribution Hoge gives isn’t proper.  But this was more than his regular harping, this was a Feldtdown.

To illustrate his nuttiness, Running Wolf Blog posted a simple little post that show’d just how nutty his opinion was.  And from there, it went into overdrive.  Schmalfeldt was vindicated by the LAW, even though no one ever questioned the law.  He was vindicated by NASA, even though there is plenty of reason to doubt he ever called.  He was vindicated by THE PHOTO EDITOR OF NASA, but since he admitted to lying to her I’m not sure how important that is.  Or any of his other lies that accidentally escaped during his rants.

The simple facts are these.  It is illegal to copyright NASA photos as your own work.  No one, at no time in the comment discussion disagreed with that simple fact.  Schmalfeldt quoted law after law after agonizingly pointless law that backed up the very idea everyone in the comment thread already agreed with.  You can not copyright NASA photos as your own.  Period.  Stop.  The end.

But despite his claims to the contrary, Bill seems to have serious reading comprehension problems.  Either that, or he is smart enough to know his limitations and therefore purposefully ignores people who ask inconvenient questions.  Evidence suggests that it is the second, since Schmalfeldt only ignores specific questions that he can’t quickly refute.  Or at least he thinks he can refute.  That thinking got him into a bit of trouble in the thread.

First off, I used a book from DK Publishing that is a common core approved textbook about space.  It uses hundreds if not thousands of NASA images and the book is copyrighted.  The question was simple, how come DK Publishing gets to do this, but Hoge doesn’t?  The answer is the same for both, they both credit the photos to NASA and neither DK Publishing nor Hoge exerts copyright claims for the work.  Publishers do it all the time.  Newspapers do it every day.  When a PAO at the Army or NASA or anywhere in the government releases a photograph to the public, they aren’t expecting that they will get anything more than credit.

But Schmalfeldt insists that everyone else who has ever published a copyrighted work that contains NASA images has a “special arrangement” with NASA.  And they do.  That Special Arrangement is this.

NASA still images; audio files; video; and computer files used in the rendition of 3-dimensional models, such as texture maps and polygon data in any format, generally are not copyrighted. You may use NASA imagery, video, audio, and data files used for the rendition of 3-dimensional models for educational or informational purposes, including photo collections, textbooks, public exhibits, computer graphical simulations and Internet Web pages. This general permission extends to personal Web pages.

A quote on images from NASA’s website

It doesn’t get more black and white than that.  Notice that almost all of the examples cited are copyrighted things.  Textbooks and Newspapers really stand out.  That’s the “special arrangement” NASA has with the entire world.  It isn’t limited to U.S. Citizens, NASA’s charter orders them to benefit all mankind.

So, if NASA is giving permission to use their imagery, which themselves aren’t copyrighted, to textbooks and newspapers which are copyrighted, how do these copyright holders keep from infringing on the NASA photos?  There must be some standard, common method to keep Newspapers from being felonious bastards, shouldn’t there?  And there is, it’s called attribution.

This isn’t hard to grasp, and most people have never had any trouble understanding it.  Why do you think that movies list all the music they used at the end of the movie?  Because they are acknowledging they used someone else’s intellectual property and did so with permission.  The whole point is to show that they are not claiming the copyright to that song, because to do so would be illegally infringing on that song.  Newspapers do it all the time, but tend to do it shorthand.  “Photo Credit:NASA”  Or if it makes sense “Photo Credit:JPL/NASA”  Hoge does it the same way.  He clearly labels that the NASA photographs are not his.

Even the Copyright Office recognizes this is a normal behavior in the world today.  Take a look at Circular 62A from the Copyright Office.

H/T Stephen Sheiko

See that important little phrase up there?  The Registration does not include any independently authored contributions in which all rights have not been transferred to the claimant.  Why not?  Because that’s how the system is supposed to work, whether it is a newspaper, or blog, or textbook.  You don’t steal other peoples things, you attribute them properly and get permission to use them.  But when it comes to NASA, we already have permission.  NASA gave it to the world.

Schmalfeldt ignored all of this simple to find information, because it didn’t make Hoge a felonious blogger.  But despite what some critics will say, Bill didn’t ignore every question thrown at him.  Instead, he did the same thing he always does.  Ignore the comments that hurt his case, scream louder about the comments that really hurt his case, and belittle the comments that he thinks he can just toss away and quickly prove wrong.  Often with hilarious circumstance.

For instance, during the feldtdown, Schmalfeldt was asked to explain the special relationship between a book by a couple of Moon Hoax Conspiracy Theory and NASA.  The book in questions was Dark Moon and it claimed to tell the story of how the moon landing was hoaxed.  Schmalfeldt took a look and immediately saw something he could use to make the poster look bad.  The version of Dark Moon linked to was the UK versions.  So Schmalfeldt felt safe ridiculing it.

None. The book was printed in England and therefore not subject to US Copyright Laws.

– Bill Schmalfeldt in an approved comment on this site.

Here is the surprising thing, Bill Schmalfeldt has spent weeks crowing about being so much smarter on matters of copyright than the rest of the world, in all his intensive copyright study, failed to ever hear of the Berne Convention?  A book printed in England absolutely has to follow US Copyright Laws, because both the United States and the UK belong to the Berne Convention.  And that’s because, a member countries, the UK and the US have such strongly similar copyright laws, and being a citizen of a member country is enough to enforce your copyright in the country that an infringement occurs.  So NASA could walk into a UK courtroom and sue the pants off the suckers who stole their stuff.

All that is moot, since the exact same book was available from an American publisher as well.  That was ignored, and was probably the better option after that gaff.

 

 

 

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An open letter to my Senators and Representative.

This is an open letter to my representation in Washington.  My hope is that with your comments and input we, as a community, can improve this open letter and then we can all send it to our various representatives.  I believe this issue is important enough to be worthy of their attention.  Hopefully, with your help, some of the larger blogs will recognize this problem and join in the fight.

Honorable Senator Jeff Sessions
Honorable Senator Richard Shelby
Honorable Representative Mo Brooks

Dear Sirs,

I bring to you today an important loophole in current copyright.  The Copyright Office, on their website, has already recognized that technology and creation of content has already started to outstrip the advancements afforded copyright holders under the Digital Millennium Copyright Act (DMCA).  In 1998, when the DMCA passed, blogs were not as serious an activity as they are today.  Since WordPress was introduced in 2004, blogs have exploded onto the Internet, yet the vast majority of blogs do not enjoy the benefits of Copyright Registration due to the overwhelming burden and cost to individually register the copyright of each post.  Even electronically, registering each post as it is written is costly and time consuming, to the point that the vast majority of blogs can not afford to register their copyright.  Without a registered copyright, a blogger has little options under the Copyright Laws to enforce their rights to their own work.

The Copyright Office has decided that under the current law, blogs can not even enjoy the expensive but timely recurring publication copyright registration afforded newspaper, television and radio.  As a result, bloggers are offered less than ideal means of registering their copyright.  Bloggers are left with either not registering at all, and hoping to get an injunction against others who infringe their works, forgoing the copyright statutory penalties, or using a substandard method of registering that offers them less protection for individual blog articles.  The most typical method of registering is to file a registration for the entire blog every three months, at $55 a quarter.  That’s $220 a year, and when most blogs are already a money losing hobby, that isn’t very feasible.  Besides, registering the complete blog provides less protection for an individual post being stolen and used without permission.

Additionally, since blogs are timely, the value of most blog posts are measured in days, if not hours.  Since it currently takes months to obtain a registration if you are not a recurring publication, that means by the time a blogger has possession of registration, it may be six months after the post was written and several months after the infringement, which has already hurt the blogger.  Furthermore, it is impossible to obtain registration inside the window of the DMCA timeline for takedown notices.

Bloggers deserve the full protection of the power of Copyright Registration.  With modern technology, there is a simple solution to the situation.  Develop a recurring copyright method, similar but less costly than the system afforded to the newspapers, television and radio world.  This could be done at very little expense to the taxpayers.  The Copyright Office could develop a portal that would allow bloggers to register with the portal for an annual fee of $100.  Bloggers would then be able to register with the portal their existing blog, in total, as a compilation work.  Bloggers would then be required to enter the URL of new posts in a timely (perhaps monthly) manner.  Once the blog is established on the portal, each new post would be given proper copyright registration for individual post written after initially joining the portal.

The beauty of the portal system is that other than maintaining and backing up the system, the Copyright Office would need to do nothing more.  Instead of issuing certificates for each new post, the portal would be the de facto proof of registration.  The only time the Copyright Office would need to do anything at all would be in the case when a post is infringed, at which point the copyright holder could be charged with a $25 fee for having the Copyright Office provide authenticated proof of the time of the registration in the portal.  Even that could be automated, so that an official notice was sent via email or mail to the court in which the case is filed.

This simple method would greatly increase the protection of copyright to the millions of bloggers already writing without the significant benefits of Copyright Registration.  The $100 fee is not onerous, and could potentially see a significant windfall to the Copyright Office.  Of the millions of blogs in existence, if only the top 10% of bloggers registered, that could be over a million dollars a year flowing into the Copyright Office for almost no additional work.

Please help bring copyright registration to the blogosphere, and help end the rampant intellectual property theft occurring every day online.

Thank you for your consideration on this matter.

Your Constituent,

Michael Malone

 

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.

The Elephant In The Twitterverse

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.

On the matter of Copyright…

I’ll admit, I’ve been out of the loop for a while.  I’ve not talked to Paul or Hoge for days…  oh wait, I’ve never talked to Hoge, so that’s not an issue.

But really Bill, I’ve dropped epic hints before my life turned up and I spent times with personal business and my kids.  You need to wake up.  Since Hoge filed his preliminary injunction, I fell safe claiming this.  I did my best to give you hints.  I really did.

Cost Benefit Analysis.  

Bill, I did my best to clue you in.  Just before I went dark, I mention the phrase “Cost Benefit Analysis” here on my blog, and in comments elsewhere.  I had people twit me that I must be stupid for bringing it up again and again.  I can’t believe you totally missed what I was hinting at.

Again, I’ve never spoke to Hoge in any manner.  I’ve spoken to Paul on many things, but not this.  But really, have you not figured this out?

You spent a week regurgitating the same crap about Copyright law that was meaningless.  Did you really not figure out what Hoge and Paul did?  Are you really that stupid?  Let me spell it out for you.

Go read all that copyright law you threw out on us for a week.  Notice anything?  Nope, I’ve looked back on your twitter feed tonight since my vacation, and it is clear you didn’t figure it out.  Registration for copyright has to be in place prior to filing a copyright claim.  Unless…

Go look, what is the unless?

Yea, it’s the three month rule.  If the infringement occurs before three months, the copyright holder has three months to file.  As long as it’s under three months, and the registration was started before the suit, then the registration (at least in your federal jurisdiction) is good.

So, go back and read Hoge’s amended complaint.  Focus on Cost Benefit.  And what do you find?

Hoge dropped everything prior to three months.

Think on that, for just a little bit.

Why would he do that?

Again, I have zero inside information.  I’ve not raised this with either Paul or Hoge.  But here’s what I’m thinking…

The standard for Registering your blog with the Copyright Office is this…  File a claim every three months.  Copyright the blog.  Everything.

Prior to filing the current lawsuit, Hoge copyrighted the entirety of Hogewash! with the Copyright Office.  He, perhaps wrongly, assumed you’d miss the limitations and screw things up and claimed beyond his three month limit.  You caught him.  Not on what you said, but on the facts.  So he amended the complaint to limit his claims to the three month grace period.  Which is more than enough to screw your world.

Paul followed Hoge’s lead.  He filed a registration on his entire blog as well.  Or maybe he just filed registration on the one blog post.  It doesn’t matter.  It was also inside the grace period.  And that makes whatever arrangement Hoge and Paul came up with completely legal inside the suit.  Bill, you were out maneuvered.  Seven ways to Sunday.

Bill, you are stuck defending your affirmative defense of Fair Use.  You may even win a point or two.  But the sheer volume of your fair use claim bodes ill for your case.  Forget my joke settlement.  Forget any concept you have of how you can win this.  And forget Paul.  Now is the time to beg.  Beg hard.

If I’d been in Hoge’s position, I’d have done exactly what he did.  I’d have file suit against every instance I could dredge up against you.  I’d have filed registration on my blog, and yet gone after you on things far outside the window of registration.  Because, what if you didn’t figure it out?  But you did.  Perhaps you did it all on your own.  Perhaps you had help, and I’m not going down the path of “practicing law without a license.”  My first response to Hoge’s lawsuit was “he didn’t file.”  You picked up on it too.  Then I saw the amended complaint, and I knew.  He did file.  He went after more than he could, but not more than he should.

Bill, you don’t have a case.  You can’t beat all the claims.  The Paul stuff, in particular, is deadly.  Settle, settle, settle, settle.  Make fun of me all you want, but settle.  Claim I’m the biggest ignoramus on the net, but settle.  Claim all the mind games, expansion of energy, whatever makes you feel like you win, but you’ve lost.  Settle.

Did I say settle?  I meant it.  Seriously, pick up your ball… go home… and get this over with. You are completely out of your depth.

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.

A few thoughts.

It seems like everyone is posting their thoughts, so why not.  Here are some of mine.

1. On Boasting

To boast grandly is to set yourself for a grand fall.  As I’ve stated, I’m in Alabama, so I know a good boast when I hears it.  And I’m hearing it loud and clear at a certain blog I won’t link to that is run by this blog’s Best Buddy Bill Schmalfeldt.  In particular he has taken great umbrage to a post at Hogewash!.  In it, WJJ Hoge threatened laughter.  But one wouldn’t want to sink to the level of Hoge, right?

And then, there’s the matter of something I learned the previous evening. The reason why Hoge has been silent on the lawsuit. Something his pet toad “Paul Krendler” either doesn’t understand or doesn’t know because he scoffed at my generous offer to let him out of the case.

Bill Schmalfeldt on his blog

This boast is mistaken on two fronts.  One, that Best Buddy knows why Hoge is being silent.  Two, that Paul Krendler is in any way involved in the Copyright issues of the lawsuit in question.  At best, he is a disinterested third party who may be called at some point as a witness.  Paul did not file an infringement lawsuit against Best Buddy.  In fact, Paul only has to worry about the stuff filed in the counterclaims.  And the counterclaims, specifically against Paul, are weak.

But that’s where Best Buddy’s boasts go even more off the rails.  Reading his writings he’s already claiming victory.  He’s so sure that he’s won that he even made this so called “generous offer” to Krendler to drop the lawsuit.  Here is what Best Buddy needed to make good on the offer.

1. His real name, address, etc.

2. A copy of the signed agreement he made with Hoge selling partial rights to his blog post.

3. A promise to refrain from further defamatory, libelous comments.

4. An apology to my wife for the filthy things he wrote about her.

Bill Schmalfeldt on his blog

This is hardly a generous offer.  To make it, Best Buddy must assume that Paul is an idiot.  That would be a mistake.  I don’t think that is a mistake, I think this is a planned piece of his litigation strategy.  He’s trying to look like he’s willing to settle.  But Paul has no reason to assume that Best Buddy will follow through on his word.  (It doesn’t matter, the offer has been rescinded.) And like the smart man Paul seems to be, he soundly refused the offer.

But let’s parse the offer anyway.  On the first part of the offer, why would Paul ever willingly give up his identity?  Even if Best Buddy follows through on his word and drops Paul from the lawsuit, which would be an interesting concept, Paul would have provided Best Buddy with everything he needs for another lawsuit in the future.  Or when Best Buddy crosses the line with someone else who sues him, which is very close to have happen at the moment.  A fact that I know he is completely clueless about.  So let’s say Best Buddy did drop Paul from the lawsuit, when this person in the wings does their thing, Best Buddy could counterclaim and add Paul back.  In other words, Paul gets nothing out of the deal.

As for the rest, they are even sillier.  If Best Buddy is right and Hoge’s suit is seconds away from being dismissed, then the agreement between Paul and Hoge is meaningless.  If Best Buddy is wrong, then the agreement has nothing to do with Best Buddy.  The first step of an infringement suit is ensuring that the claimed infringement occurred to copyrighted works and the person bringing suit is the person who holds the copyright.  That is between Hoge and the Judge, and has nothing to do with Paul or Best Buddy.  As Best Buddy likes to claim, it has yet to be determined if Paul did write defamatory or libelous comments.  An agreement to this would be meaningless, as if Paul doesn’t believe he’s libeled Best Buddy, he wouldn’t change it at all.  As for the apology, I find that laughable on its face, considering the things Best Buddy wrote about Hoge’s wife that he’s yet to apologize for, and what Paul wrote was a parody of that post.

Best Buddy wasn’t negotiating in good faith, nor was he attempting to truly negotiate at all.  And that may be his biggest mistake and why his recent boasting is a ride for failure.  Best Buddy knows almost nothing about Paul.  I’m not claiming to have inside information into the man behind the pseudonym, but this doxing, which may well be inevitable, is a potential bombshell.  Only not on who Best Buddy thinks.

Paul may be a malnourished teenager living in his mother’s dank basement with cheese curl powder on his face.  In that case, Best Buddy most likely will be right, and it will be devastating to Paul.  Or Paul could be a wealthy owner of a business, with lawyers on retainer for days.  That would be devastating to Best Buddy.  I suspect Paul is somewhere between these two extremes, and that makes it even tricker.  Best Buddy has no idea what Paul’s resources are, and once he finds out it will be too late to do anything but deal with the fallout.

That’s not wise.  I’ve always been told that in legal issues, never ask a question you don’t already know the answer too.  Best Buddy has no idea what the answer to the question he’s asked will be.  Claiming victory before Paul is even known, much less responded to the counterclaims is gutsy, but not smart. Paul said it best in the heavily edited comments on his own blog.

2. On Bill Schmalfeldt

I’ve had a change of heart on the issue of Bill Schmalfeldt, so I’m going to man up about it and do what I should.  I am going to apologize.

Bill, I don’t believe I’ve ever mentioned your Parkinson’s.  I also don’t believe I’ve ever mocked you for it, at least not intentionally.  I haven’t scrubbed through every comment I’ve ever made concerning you, so it is quite possible that I did without realizing it.  For example, I know I’ve called you Cabin Boy, but at the time I thought you chose that name for yourself.  I may have used a phrase someone else used to make fun of your Parkinson’s without realizing it was about your condition.  I don’t think so, but I’ll admit it may have happened.

What I did do is not fully understand the seriousness of the condition, and for that I apologize in complete honesty and sincerity.

Bill, you are not innocent in this affair.  I don’t appreciate the blackmail attempt you made on me here at my own blog.  I think other things, such as the blackmail attempt you currently have on Perfect Tommy and how you handled other doxes have been proper or above board, no mater how you attempt to spin them in your mind.

But what I didn’t really understand is what Parkinson’s had done to you.  I now cringe at the comments on various blogs making fun of you for not having a life.  I understand how angry you must be at Hoge and others.  I now see that your life IS the internet.  You practically do live in a virtual world.  And I can honestly see that from your perspective, the world you thought you controlled has been polluted by the people you rail against.

I’m not going to participate in that any longer.

That’s not to say I trust you, Bill.  That’s to say I have a new respect for your condition.  I fully understand what this could lead to.  I could be inviting the same amount of pollution into my virtual world as you found in yours.  That’s okay, I can take it.  But after reading an eloquent post by another Alabama Blogger that I have shamefully lost the link to, I feel I owe you that.  You commented on the post, so if you would, I’d love for you to leave me the link in comments.

Before you do, and in case (as I think to be true) several other commenters here will know the post I’m talking about, that is not me saying I agree with everything in the post.  I don’t.  I think it is one sided and doesn’t treat your actions with the truth as to the damage you have also done to others.  But it brought home some points that have lead me to this.

As such, I give you my word that I will do my best not to belittle you.  I offer no such promises to your ideas or words.  I don’t suddenly like you, but I can and will show enough respect that I won’t intentionally belittle you as a person.  And, at my discretion, I’ll attempt to moderate others comments here.

I also won’t ban you from posting comments, but I will hold your comments to my rules because this is my bandwidth.  All comments here are moderated, so feel free to let me know when something is private and I won’t publish the comment.

This may be a weak offering to you.  By offering it to you, I may loose the readership I’ve gained so you’ll just be talking to me.  I can live with that too.  I’ve been blogging for decades about stuff I care about that no one else does, so I can return to that in a heartbeat.  But this is the best I can offer you.

3. On blogfare

I enjoy a good heated discussion.  So on one hand, blogfare is fun.  But when blogfare spills over into lawsuits, that’s silly.  I’ve not been harassed to any great degree, so I’m not sure what I’d do if a blogfare opponent stepped over the line.  I’m sure I have a line where I’ll do like others did.  I hope that line is never crossed.  But come on folks, it’s blogfare.  It’s not all there is to life.  Took another ride on the motorcycle today, and this post was bouncing around inside my head.  And I had to force myself to remember that blogfare isn’t that important.  Instead of looking at the sites I was passing, I was thinking about this and that’s just wrong.  Be present in your moments as they come.  This isn’t everything.  This isn’t even real life.  It’s a fun distraction, but that’s all it should be.

More legal dropage.

Before the notice even reached Chris Heather, assumed by this blog’s Best Buddy Bill Schmalfeldt to be Howard D. Earl, Schmalfeldt has dropped his counterclaim against Chris Heather.  In a twit posted today, he thanked team Pink Skittle for pointing out the errors to his original Answers and Counterclaims.  Screenshot 2014-06-05 13.01.59Let this be a lesson to everyone.  Posting information before deadlines have passed is not good for anyone.  Even if you have information you think will help a specific party, share it privately.  While Howard D. Earl is now in the clear, all that has happened is that publicly shared information has improved Schmalfeldt’s position.  Remember the words of Aaron Worthing.  Paraphrased.  Suit first, internet second.

The continuing case of just not able to get it.

This blogs best buddy, Bill Schmalfeldt, continues not to understand the very basic aspects of copyright law.  Now he’s screaming to the rafters that he has been libeled yet again.  But he couldn’t be further from the truth.

In a blog post over at his place, which I won’t link to, he had the following to say:

As the subject of the entry to which Mr. Hoge was commenting was yours truly, he has stated for the world to read that I am willing to steal intellectual property. That is a lie. It is defamatory. It is libelous.

I am willing to use material without the writer’s permission if that use falls under the US Copyright Law’s rules of Fair Use.

-Bill Schmalfeldt on Libel

Side Note: That was used without permission.  Should a DMCA takedown be used, I’d most likely argue fair use.  And the defense would win.

Schmalfeldt was responding to a comment Mr. Hoge left on a website.  In this post, Schmalfeldt continues to misunderstand the very basis of Fair Use.  And the man claims to be a journalist.  Really?

Let me explain.  There is no Fair Use doctrine in federal law that makes it not infringement to use other people’s copyrighted works.  That’s just not true. Instead, federal law allows the Fair Use Defense for copyright infringement.  It is an affirmative defense, meaning to use the fair use defense, you must admit to the copyright infringement.  Schmalfeldt is claiming he didn’t “steal” intellectual property.  Yet in order to use the Fair Use Defense, he must first admit that he did steal intellectual property.  The Fair Use Defense doesn’t mean you didn’t steal, it just means you didn’t steal illegally.

After all, that’s exactly what fair use implies.  The whole concept is that you’ve taken someone else’s intellectual property and used it fairly and legally.  You did steal, you just didn’t break the law.  The simple fact that Schmalfeldt is claiming fair use is Schmalfeldt admitting that he did steal.  He’s just claiming the theft wasn’t illegal.

Since Schmalfeldt currently has a lawsuit filed against him in federal court, it has yet to be determined that the theft is or is not illegal.  I’ve got my opinion, but really that’s for a judge or jury to decide.  But the one thing that is not libel is claiming Schmalfeldt stole intellectual property.  Schmalfeldt admits to stealing it.  By claiming it was Fair Use.