Who’s obsessed with what?

Bill Schmalfeldt decided to accuse your host of something rather vile and disgusting on this blog earlier this morning.  So I thought I’d take the time to run the numbers and just see who was obsessed with what.  Here’s what Schmalfeldt had to say.

I don’t understand your obsession with anal rape.

– Bill Schmalfeldt in an approved comment on this blog

Since, outside of this blog post, anal rape has been brought up three times, once about Schmalfeldt, once by Schmalfeldt and once by the anonymous target of What they really meant to say.. I don’t think obsession is really the correct word here.  So I thought I’d broaden the search a bit, and figure out exactly how many times the word “rape” was used on this blog, and who used it.  I limited the search to actual blog posts and approved comments.

Here are the results by who used the word “rape” and how many times it was used.

Me:  8 times, or 28.6%
Bill:   5 times, or 17.9%
Quotes:   9 times, or 32.1%
Commenters:  6 times, or 21.4%

So, by far, the most frequent single user of the word “rape” on this blog is me.  But am I obsessed?  I wrote an article about date rape on college campuses, and how it has gotten out of hand how easy it is for women to accuse men of rape, regardless of the situation (at least to the college administration if not to the police).  So including a post, much like this one, that is actually about rape doesn’t seem exactly accurate.  I’ll note that I not once described a rape in that article, I just referred to a specific case of a rape accusation.

If we remove that post from consideration, the numbers change to this.

Me: 3 times, or 17.6%
Bill: 5 times, or 29.4%
Quotes: 5 times, or 29.4%
Commenters: 4 times, or 23.5%

I’ll note that in both cases, Quotes and Commenters represent multiple people.

Now personally, I don’t find any evidence of obsession with anyone.  To date, I’ve written over 320 posts, and outside of the one (now two) posts specifically about rape, I’ve used the word 3 times.  (once about TSA “pat down rape”, once about rape shaming, and once about Schmalfeldt’s own writings)  Even Schmalfeldt, who’s anus/ass/butt references are legendary, only mentioned anal rape once, and that was when he was accusing me of being obsessed with it.  (Which is humorous on it’s own)

Using the logic of Bill Schmalfeldt, if it is defamatory and untrue then it is libel.  Since the data doesn’t support the accusation, and since I don’t resort to meaningless threats of litigation, I respectfully ask Schmalfeldt to retract the statement for the reasons of his own logic.  I will stipulate that the hypothetical reasonable person who is mildly familiar with the situation would not think Schmalfeldt statement could reasonably be true, so I don’t think it is libel and is, instead, a typical example of Schmalfeldt unsuccessful attempt at humor, which falls short of humorous statements about the intended target and instead puts him squarely in the center as the object of ridicule.

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.

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.