Alabama Code 13A-11-8

Recently an online adjudicated harasser has threatened this blog with Alabama Code 13A-11-8.  So I thought readers here at Running Wolf Blog would like to take a look at the code of Alabama as it pertains to 13A-11-8.

Running Wolf Blog will step through the code in question, and see where this blog may be vulnerable.  The code has two parts, general harassment and online communication harassment.  We will go through the first part now.

13A-11-8, in the general harassment has several sections.  The first section (13A-11-8-a) states as follows:

Harassment or harassing communications.

(a)(1) HARASSMENT. A person commits the crime of harassment if, with intent to harass, annoy, or alarm another person, he or she either:

a. Strikes, shoves, kicks, or otherwise touches a person or subjects him or her to physical contact.

13A-11-8-a of the Alabama Code

Since no person associated with Running Wolf Blog has ever been in the physical presence of the individual threatening Running Wolf Blog, it is impossible for anyone associated with Running Wolf Blog to be guilty of anything under this clause.

b. Directs abusive or obscene language or makes an obscene gesture towards another person.

– 13A-11-8-b of the Alabama Code

Again, since no person associated with Running Wolf Blog has ever been in the physical presence of the individual threatening Running Wolf Blog with this particular section of the Alabama Code, it is hard to imagine how an obscene gesture has been made against the individual.  As for abusive or obscene language, Running Wolf Blog claims first amendment protection for the phrase “fuck you” and believes that such  language is protected speech under the constitution.

(2) For purposes of this section, harassment shall include a threat, verbal or nonverbal, made with the intent to carry out the threat, that would cause a reasonable person who is the target of the threat to fear for his or her safety.

(3) Harassment is a Class C misdemeanor.

– 13A-11-8-b2-3 of the Alabama Code

Running Wolf Blog has never made a threat against anyone, including the individual threatening this blog under this statue.  If anyone can find any credible threat made on this blog, Running Wolf Blog is more than willing to issue an immediate retraction and apology.

The second section of 13A-11-8 deals with “Harassing Communication.

(b)(1) HARASSING COMMUNICATIONS. A person commits the crime of harassing communications if, with intent to harass or alarm another person, he or she does any of the following:

a. Communicates with a person, anonymously or otherwise, by telephone, telegraph, mail, or any other form of written or electronic communication, in a manner likely to harass or cause alarm.

– 13A-11-8-b1 of the Alabama Code

The Running Wolf Blog has not contacted the person interested in charging the blog with Harassment in any means unless requested by the individual.  Running Wolf Blog has kept all communications with the individual to only two mediums; comments on this blog or @mentions on twitter.  Seeing as how the individual wishing to press charges against this blog has argued, repeatedly and consistently that @mentions on twitter is not contact, Running Wolf Blog is confidant that a court of law, specifically a criminal court, will not find that this blog has violated this measure of the statue.  Even if the individual could persuade the District Attorney that despite the individuals repeated claim that @mentions on Twitter do not constitute contact, this blog is confident that no contact, even through @mentions, violates this clause of the statue.

b. Makes a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication.

– 13A-11-8-b1-b of the Alabama Code

Running Wolf Blog has, at no time, ever used the telephone to contact the individual seeking charges against this blog.  There is no way this blog could have violated this clause of the statue.

c. Telephones another person and addresses to or about such other person any lewd or obscene words or language.

Nothing in this section shall apply to legitimate business telephone communications.

(2) Harassing communications is a Class C misdemeanor.

– 13A-11-8-b1-c and 13A-11-8-b1-2 of the Alabama Code

Again, since this blog has never used the telephone to contact the individual wishing to press charges against this blog, it is unclear how these clauses of the statue partain to the Running Wolf Blog.

Running Wolf Blog admits at this point in time that if the individual wishing to press charges against this blog does, in fact, press charges, the individual behind Running Wolf Blog will put up absolutely no defense against the charges with the arresting officers.  Should an arrest warrant be issued, Running Wolf Blog, and specifically Michael Malone, will turn himself in to the Huntsville Police and/or the Madison County Alabama Sheriff on the warrant.  Running Wolf Blog will, at the time of the arrest, exert his full 5th Amendment right to silence and his 6th amendment right to a speedy trial.  Should such charges be brought against this blog, Running Wolf Blog looks forward to the trial by jury during which this blog will continue to express our 5th Amendment right to silence, and look forward to our 6th Amendment right to face our accuser and ask questions designed to discredit the prosecution’s witness.  In fact, Running Wolf Blog looks forward to questioning the witness before a jury with great relish.  Running Wolf Blog cautions the individual threatening such charges to think long and hard on the result such charges will incur, and the fact that pressing charges against this blog opens the individual to the Jurisdiction of the State of Alabama.  Running Wolf Blog encourages the individual considering said charges to contemplate the possible outcomes of the comments left here on this blog in addition the the various twitter @mentions the individual in question has made along with the very real threat the individual has made to cause Running Wolf Blog to fear for it’s safety after the significantly failed doxing perpetrated against the proprietor of this blog.  Running Wolf Blog hopes that the individual in question will reconsider his stated actions, for the individual’s own sake.

As always, Runnig Wolf Blog appreciates the readers and supporters of this blog, and looks forward to future communications and reports on the actions of any individual this blog finds news and/or noteworthy in the future.

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’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.

On the issue of Doxing, with update!

Ever heard of Doxing?  If not, then you are a blessed soul transversing the internets.  According to the Urban Dictionary, Doxing is:

Doxing is a technique of tracing someone or gather information about an individual using sources on the internet. Its name is derived from “Documents” or “Docx”. Doxing method is based purely on the ability of the hacker to recognize valuable information about his target and use this information to his benefit. It is also based around the idea that, “The more you know about your target, the easier it will be to find his or her flaws”

More often than not, when someone is doxing, they are attempting to discover an anonymous internet user’s real life identity.  There are white hat doxers, who go after the real life identity of people who cause harm on the internet.  One example would be the work of Adam Steinbaugh who doxes those who put up revenge porn websites.  Steinbaugh has helped women who have had their private pictures posted on revenge porn websites file lawsuits against the sites and the people behind them.

There are also black hat doxers.  These people attempt to dox people for harassment and terror.  Or to file frivolous lawsuits against them, to harass them.  In these situations, the doxers are out to hurt their targets, revealing their real identity, home address, spouses, kids and any other shameful proclivity they may have.  Sometimes it is for revenge.  Sometimes it is for spite.  Sometimes, its for Bill Schmalfeldt.

If you’ve never heard of Bill Schmalfeldt (BS), again count yourself lucky.  I find BS to be a hack writer who has delusions of grandeur.  He calls himself a “investigative journalist” and considers doxing targets and their entire family as part of that job.  He has written some truly vile things about other people, all as a way to get revenge on them for their insults and alleged harassment.  I will warn you now that the following example is truly vile and disturbing.  The link I’m about to share is not from a site BS controls, because BS memory holed (deleted) the entire thing.  I’ll talk more about the site I’m sending you to in a minute, but for now here is an example of BS’s literary expertise.

For those of you smart enough not to follow that link, BS has a long running problem with WJJ Hoge who runs the Hogewash! blog.  This is a fictional work designed to defame Hoge, but includes his wife and son in some very vile and disgusting ways.

The person behind that site is Paul Krendler, a anonymous blogger who started by writing a parodies of BS’s work.  Paul first work was a parody of that very post of BS’s.  The parody is far funnier, but more vile and disgusting than the original.

BS wasn’t very happy with that parody.  So unhappy that back in April, when he was on a spree of writing and self publishing books to ebook and publish on demand resellers almost daily, he decided that the post was a fine example of “right wing nuts” real feelings about him that he copied the post, almost in total, in his book.  According to Paul, BS copied 79% of his post and that 79% was 80% of the chapter.  The other 20% included his rational for using so much of the post.  Since I have not read the book, I have to rely on Paul’s report of what the book said.

  1. In my opinion, you stole my work. You may think otherwise, but you are wrong, and a court will agree.
  2. Worse than stealing my work, you stripped the context.  It was parody, clearly identified as parody, parody of your own work, but that didn’t paint you correctly as the victim, did it? So you stripped that context out like the spineless coward you are.
  3. Even then I might have let it slide, but you know you violated the copyright.  You said so right on page 5.  You as much as dared me to come get you.  So, I found a way to make it happen.

Side note.  This quote from Paul’s blog is used with permission.

What did Paul do to make that happen?  He sold the book and e-book rights to WJJ Hoge.  Why would he do this?  Because Paul wanted to remain anonymous.  As is his right.

I’m not going to pretend insider knowledge of how the rights were sold.  It isn’t any of my business.  But since WJJ Hoge has an extensive back ground in the music business, which entire revenue is based off the appropriate selling and trading of copyright, I’m more than willing to assume Hoge knew what he was doing when he purchased the rights.

Why did WJJ Hoge want to purchase those rights?  I don’t know.  My guess is that the original post that Paul’s parody was based on was a collection of vile and vicious lies hidden as fiction.  Hoge may have wanted revenge.  Hoge may have wanted to help a fellow blogger protect his copyright.  I don’t know.  What I do have information and belief is that WJJ Hoge purchased those rights.

This did not sit well with BS.  It sat even less with BS when Hoge exercised his newly acquired rights to file a DCMA takedown notice of BS’s book containing the copyright infringement.  BS refuses to believe that the rights were actually sold.  So does this investigative journalist investigate?  No, he makes demands.  Threatening demands.  In fact, according to several captured tweets (the accounts have sense been canceled) he accused Paul of fraud and his only way out of of this fraud is to produce the contract for his review.

Unfortunately for BS, Paul is well aware of his rights and knows that he is under no obligation to provide BS with a copy of the contract.  BS wasn’t a party to the private contract and had no right to see what the contract said.  Did his lack of rights stop him from threatening?  Nope.  He doubled down on the threats.

I can’t imagine that BS is so stupid that he can’t realize he has no right to that information without filing a lawsuit.  So the only reason that I can see that he was threatening to get the contract was he wanted to find out the name Paul used to sign away the rights.  In other words, BS was attempting to dox.

Unfortunately for BS, it is quite possible that Paul signed away the rights without revealing in the contract who he really is.  It happens all the time in the business world.  A great example is when Disney was buying up land for Disney World in Florida.  Disney lawyer Robert Foster, under the pseudonym of Robert Price started the buying spree so as to not inflate the price of the land.  I’ve no reason not to believe that Paul and Hoge weren’t smart enough to do something similar.

BS is outraged.  Paul isn’t bulging and Hoge is laughing.  Now it is of even greater importance to BS to find out who this Paul fellow really is.  Since BS was already under a restraining order to not contact Hoge, a restraining order that was extended six months because of BS’s inability to abide by it, BS decides to first bring pressure on Hoge through his wife, buy sending an email to her.  BS denies that he sent it, and I might be willing to give him the benefit of the doubt… except that Hoge has some pretty compelling evidence on his site about why BS either sent it, or knows who did.

Side Note: In Maryland, where the “restraining order” was issued, they are called Peace Orders.  I chose to use the term restraining order because that is more familiar to more people.

Of course, Hoge did write a DMCA takedown notice on the book containing Paul’s post (or at least 79% of Paul’s post.)  This was not the first time a DMCA takedown notice was used by someone to take down a book by BS.  But from what I can tell (and trust me, I’m not in the inner loop of this issue, but an interested onlooker) it was the first time that BS filed a DMCA counter claim.  (If anyone knows I’m wrong, I’ll update this.)

A brief explanation of DMCA takedown notices are needed here, for those unaware.  DMCA stands for the Digital Millennium Copyright Act.  One of the aspects of the act is the ability to submit a DCMA takedown notice.  It is intended to inform large distributers of other peoples copyrighted works about infringements.  Think Amazon.  Think Web Hosting Providers.  They don’t vet every webpage or ebook on their sites, they assume if a publisher asks them to distribute it, the publisher has all the rights squared away.  When someone gets a DMCA takedown notice, they “take down” the allegedly infringing material.  Sending a DCMA takedown is serious business.  But it doesn’t stop there, if the creator of a work thinks the DMCA takedown notice was filed incorrectly, then the original complainant has 14 days to file a copyright infringement lawsuit against the creator, otherwise the distributor will return the work to distribution.

Again, I believe that BS filed the counterclaim because he was attempting to dox Paul.  Once BS filed the counterclaim to the DMCA takedown, if Hoge was to defend his rights he would have to take it to court.  There was no other way to do it.  BS had called the bluff, and I truly believe he thought he would never see a lawsuit.

The next step in the dox was for BS himself to file a lawsuit.  And he did so on May 20, 2014.  In this suit, which didn’t get fully filed until May 27th, 2014 because of how the Federal Courts work, BS alleges a laundry lists of things against ten Defendants.  Hoge is, of course, one of the Defendants.  But what was interesting to me was the final defendant on the list.  Paul.

As far as I know, Hoge was the first to publish the lawsuit on his website. Reading it was entertaining, and not for the reasons that BS would want.  The lawsuit is full of problems.  Since the lawsuit is brand new, and BS has time to amend, I’ll refrain from commenting on anything that I see wrong with the complaint.  And I can’t point out anything wrong with the defendant’s responses since none have been filed.  In fact, at this point, BS hasn’t gotten permission to issue summons, the lawsuit is still under review by a judge to see if it will go forward.

Concerning the issue at hand in this point is the rather flimsy accusations that it makes against Paul.  There are three direct accusations against Paul in the lawsuit.  I’ll cover each one, and why they are so flimsy.

In paragraph 59, BS recounts a series of comments on a post at Hogwash!  Paul made a comment to that post, in which he says:

It looks like the question has been answered on point below, but I must say I am feeling absolutely zero risk regarding the blog post which led to the DMCA takedown.

There is an electronic agreement between myself and our host, and it was a value-for-value exchange. I can also say that, almost purely for spite, my proceeds from the deal were donated to the National Parkinson’s Foundation.

There is not a single doubt in my mind that both John and I are safely protected by that agreement.

And besides the actual material terms of the deal, I got something more, which is only of value to me.

I’m feeling fully armored right about now. There’s not a single thing false about that takedown.

Let him come.

Side note: This is the copyrighted work of Paul.  I used it without permission since it is now in a public document filed with a federal court.  Although I suspect I would have been granted permission had I asked.

At no point in the surrounding paragraphs does it explain why this comment is defamatory or libel.  In fact, the only time BS is mentioned in the comment is in the phrase “Let him come.”  This hardly sets Paul up for defamation and libel.

A short bit later, BS makes another accusation at Paul in paragraph 61.  This time it was a tweet.  Paragraph 61 is reproduced below.

On Mother’s Day, May 4, 2014, knowing that Defendant Heather was using a photograph of Plaintiff’s deceased mother as his avatar, Defendant Krendler tweeted to Defendant Heather and Defendant Hoge, “I’m looking for a special (avatar) for Mother’s Day – Any Suggestions?”

A reminder that Krendler is Paul Krendler, who I’ve been referring to as Paul.  Again, nothing about that tweet is defamatory of libelous.  My guess is that he is attempting to show intentional infliction of emotional distress against Paul, but that is a far reach.  BS isn’t named, BS’s mother isn’t named.  Besides, libel law has clearly and for a long time stated that you can’t libel the dead, and the living can’t use Emotional Distress as an attempt to get around that law.  As such, the tweet is absolutely protected speech.

Again at paragraph 67, BS has a new accusation against Paul.

Defendant Krendler response to all above, “I respectfully disagree. He’s a poopstain that needs to be shoved back up that arsehole.”

Again, this isn’t libel. To be libel, you need to have an untrue statement of fact.  There is no untrue statement of fact in that tweet, unless BS honestly believes that a reasonable person will actually believe that Paul is saying that BS is a literal poopstain.  Since it is a far flung fantasy that a human being can possibly be a poopstain, this is clearly an opinion.  Opinions are absolutely protected by the First Amendment.  I’ve already shared my opinion that BS is quite a poor writer.  That’s an opinion, not a fact.  It is not libelous.  BS has no action here.

The only other mention of Paul in the complaint is the fact that he had sold rights to Hoge.  That’s not actionable either, since it is perfectly legal to sell your copyrights to other people.

In other words, Paul has no business being a defendant in this lawsuit, and I firmly believe that of all the defendants named in the suit, Paul will quickly get a dismissal with sanctions.  (I also think that most everyone else will get swift dismissal and most with sanctions, but that’s beside the point.)

I also believe that BS believes he was wronged, and that’s why he filed this lawsuit.  But I firmly believe that the only reason that BS included Paul, with such weak and obviously not libelous accusations was for the chance to dox Paul.

After filing a lawsuit and getting it approved, the next step would be for the judge to authorize BS to issue summons.  But BS doesn’t know who Paul is.  Since Paul isn’t a party to the suit until he is summoned, BS needs to get permission from the court to try and figure out who he is so he can be summoned.  The court will most likely grant permission.  Which means that BS will be able to force IP addresses from any internet service that Paul has used, including Hogewash!, Twitter and WordPress.  Once he has the IP addresses that Paul used to access those sites, BS can force the ISPs that own those IP addresses to give him the client information associated with the addresses.  In other words, Paul will be doxed.

There are a few problems with that theory.  Paul may be quite the internet wiz, and only accesses those site through various means that will disguise his real IP address and the information BS will receive will lead him nowhere.  Paul may also waive the need to summon, and through a lawyer remain anonymous as well.  There are several other avenues Paul can use to remain anonymous, but I’m sure he’s aware of them, and why give more away?

But the plot thickens.  BS posted a letter on another website saying he was withdrawing the lawsuit.  This happened on May 22, 2014.  That letter requesting the withdrawal of the lawsuit was entered into the case on May 28, 2014.  It is currently unclear if that is enough to quash the lawsuit.

Why would BS attempt to withdraw the lawsuit?  I choose to believe his reason in the letter, foul as it is, that his health would suffer if he moved forward.  Perhaps he realized the whopper of a job it will be to answer ten defendants answers to the complaint.  Under the rules of Federal Court, there are timelines BS would have to maintain to prevent an automatic judgement on those answers.  Then there will be, without a doubt, ten well written motions to dismiss with sanctions.  BS couldn’t afford to miss the timeline on any of those, or the case would quickly fall apart.  Assuming he got past all that, and Discovery begins, BS would be answering, with timelines again, questions from all ten defendants.  As you can see, this could quickly snowball.  Defendants can discuss the case with each other, and they can time their responses such that they overlap.  The stress would be enormous, so I choose to believe that his health really did drive his decision to attempt and stop the lawsuit.

Whatever the reason, one of the fallouts of this will be that BS will not be able to dox Paul via this lawsuit, it would seem.  But there is a new wrinkle to consider.

Remember I said that BS filed a DMCA counterclaim to Hoge’s DMCA takedown notice?  After BS filed his lawsuit, and admittedly after he mailed his request to withdraw said suit, Hoge filed a copyright infringement lawsuit of his own against BS. Paul isn’t completely out of the woods yet.  I believe Hoge intends to move forward with his suit.  At some point, Hoge will have to prove he owns the rights to Paul’s post.  I guess we will see how well Hoge and Paul protected Paul’s identity at that time.

But until then, BS’s attempt to dox Paul has failed at every turn.

UPDATE:  As of today, May 29th, 2014, BS’s lawsuit against Hoge, Paul and 8 other defendants has been dismissed without prejudice.  That gives BS the ability to file again.  With the Hoge suit still ongoing, it would behoove BS to at least wait until after that.