Some of the best comments that I’ve had about Sore Loserman Bill Schmalfeldt’s recent fascination with DMCA takedown notices have come via email from lawyers. Alas, they’re off the record, so I can’t share them, but they’ve given me some interesting ideas.
Let’s review the story thus far.
The photographer who took the headshot photo that I use on the Internet retained the copyright on the image. I use it under license. When he discovered that it was being used as the basis of a pornographic image on one of Schmalfeldt’s websites, he sent a DMCA takedown notice. Schmalfeldt responded by replacing that picture with another pornographic image with my face photoshopped into it. He also posted nine copies of the DMCAed image on Twitter. In addition to those postings, Schmalfeldt retaliated by sending a bogus DMCA notice about material covered by the Fair Use doctrine to the host for this blog.
The copyright holder of the image of my face in the new pornographic picture asked Schmalfeldt to take that image down and he complied on one of his sites, but not on Twitter or any of the hate sites run by Acme for Team Kimberlin.
When I pointed out the hypocrisy of his position vis-á-vis parody images, the remaining porn came down, including stuff on sites such as Breitbart Unmasked and hogewash dot net. However, the Cabin Boy issued a threat of a second DMCA takedown notice to Hogewash! concerning a parody image created by one of my readers.
When I refused to be bullied over a Fair Use parody, Schmalfeldt issued the second takedown notice. And he posted another image of me that he describes as “obscene.” He’s right about that.
Schmalfeldt makes all sorts of claims about copyright law. I don’t think I’ve seen one that’s correct.
He claims that Fair Use audio clips are limited to 30 second. Of course, there’s no such limit in the Copyright Act, and the case law specifically allows for a whole work to be reproduced in some instances of Fair Use.
He has his “check list” about what qualifies for Fair Use. It’s different from the one in 17 USC §107, the one Congress enacted into law and that the courts really use.
He thinks he can drag people into court in Maryland. That’ll work for me. But Lee Stranahan, for example, lives in Texas, and DMCA cases are tried in the federal court district where the defendant resides. 28 USC §1338 gives U. S. District Courts jurisdiction on copyright matters. 17 USC §512(g)(3)(D) specifies that the appropriate District Court is the one with jurisdiction over the alleged infringer’s address in the case of a DMCA dispute. Relying of books about copyright law published before the DMCA took effect may not be a wise strategy.
Getting legal advice from Acme may be even worse.