In Re ELH-14-CV-1683

Judge Hollander denied my motion for a preliminary injunction in the Hoge v. Schmalfeldt copyright case.

Of course, I am disappointed, but the judge’s ruling points out several ways that I can clarify my case to the court as the lawsuit proceeds.

49 thoughts on “In Re ELH-14-CV-1683

  1. Too late John. Bill’s already declared complete and total victory, done a long and rather ugly victory dance and is now applying to law school (as a professor, not a student).

    May God have mercy on your soul. I’ll say a prayer.

  2. You know I hope you prevail in this, but no matter the outcome, Wee Willy will still be the pig stalking young Asian girls on Twitter and lurking on boob-shot sites (beyond pathetic), and CB will forever be a failed, ridiculous caricature of a human being known for his serial lies, lousy writing, and anal fixations. Hold your head high, and know you have the respect of your peers. Team Kimberlin cannot say the same.

  3. I seem to recall that you felt that getting the injunction was a bit of a long shot to begin with. Therefore, while disappointing, it’s obviously not the end of the road.

    I also find it interesting that Bill thinks his reputation is worth a million dollars. From each defendant. Because he is now claiming that he is still suing Paul Krendler, it’s just the counterclaim isn’t on the docket so he isn’t suing him. Or something like that; the logic as usual would get a fail in any university’s Logic 101 class.

  4. Hmm.
    Hoge swings for the fences on the first pitch and pops foul into the cheap seats. Be sure to kick the clay off your cleats. I’m personally guessing the next one’ll be an off speed change-up.

    You a southpaw John?

    Funny thing is she evicerated the countersuit in a very left-handed fashion. ‘Course Bill will never see it here; or when she hands the jury a directed verdict in the counter-suit.


  5. Wow, the motion worked better for you than I had thought earlier. The motion has caused the judge to show her hand. As you note, you now have a road map for proceeding.

    I was stunned about the judge’s observations about your TOS. If Bill Schmalfeldt claimed at the hearing that he refuses to link your material so as to not drive traffic to your website he is pretty much admitting he is violating your TOS in copying your work. While there may be debate about what is “practicable,” a policy of never linking is well outside the range of possibilities. Since the intent for allowing republication is driving traffic to one’s own site, Bill Schmalfeldt should have reasonably known his republication was well outside your TOS.

    I’m kinda miffed about what internet she is describing. On the internet I am aware of sites that link articles have tables describing how much can be quoted with permission based on which site is being quoted. Some websites only allow a link, but no text whatsoever. It is certainly odd that a district judge in Maryland has signaled her intent to invalidate such policies.

    • One more thing just occurred to me. On one hand, Bill Schmalfeldt told the judge he refuses to link to your website because he doesn’t want you derive any economic benefit from any traffic generated. On the other hand, he is republishing your works commercially to derive economic benefit to himself. Surely, it would not take more than the briefest moment of introspection by Bill Schmalfeldt to realize that you, I, and, the rest of folks here don’t want our writings to benefit him financially either. If Bill Schmalfeldt wishes to ask the court to respect his feeling on the matter, then, it would be entirely appropriate to ask the court to extend you and Paul Krendler precisely the consideration.

  6. I think the Judge is largely correct in the reasoning against a preliminary injunction, as it is an extraordinary relief and requires a showing of substantial harm to Hoge, but the Judge makes a pretty bad argument at 3 c) when writing “Plaintiff does not claim that defendant has reproduced all of the content found on Hogewash!”

    Would Warner Brothers have to prove that someone reproduced their entire catalog in order to be entitled to damages for the theft of one work? How about the NYT’s, would they have to show someone reproduced their entire newspaper, or entire history of newspapers if they sued someone for lifting a single article in toto? Clearly not. So what difference does it make whether Schmalfaldt lifted every blog post or only one? This was not a very good argument in what was otherwise a reasoned opinion (you can disagree with it, to be sure, but the opinion was not otherwise unreasonable).

    I do think the Judge was not subtle in hinting that fair use is a much stronger argument than the Gentile Host gives credit. To that end, when presenting argument, you really have to drive home not only that you are right, but that the other side is wrong and why they are wrong – particularly when you are asking for extraordinary relief. The motion was missing a detailed analysis regarding why fair use is not in play here. (Frankly, I am now knowledgeable enough on the topic to have an opinion of any value regarding whether it is or is not in play here).

    In any event, that is the hole that needed to be filled. Apparently that was not done during oral argument, at least to this Judge’s satisfaction.

    As this is an ongoing case, I will not make any further comment regarding predictions about future actions the Judge or litigants might take, so as not to influence the actions of the parties. I suggest others limit their comments only to things which have been ruled on conclusively.

    • As with my baseball analogy; it was worth a shot, and it shows the pitcher’s arm…
      Let me state here that I, as owner of this comment and licenser, grant Mr. Hoge, as licensee, explicit permission to redact any- and everything after this colon as compromising to strategy:

      a) I think Herronor did reaffirm that Fair Use is an affirmative defense. b) I was intrigued by her expressed intention to grant wide lattitude on the application of Fair Use. c) She shot down the financial harm pretty solidly, BUT all but gave John the statutory penalties should Bill fail to satisfy Fair Use.

      And d) she completely held open the core principle of sovereignty of intellectual property. The counter to Fair Use being the erosion of that sovereignty and the pernicious (ab)use of Mr. Hoge’s works by Bill with only the smallest fig leaf of modification/comment/satire/expansion.

  7. It looks as if Bill feels pretty strongly about the strength of his case.

    It’s almost like he’s a monkey, and he’s dancing!


  8. You really need to keep pursuing this. It truly is a freedom of speech issue as well as outright stealing of intellectual property. Go above this judge and find one that actually understands the law! Team Kimberlin will never leave you alone if you walk away from this.

    • heh, Hoge has until Doomday Clock to sue me or else! … Cabin boy has until Doomday clock to sue me or else I own Cabin boy… heh…

  9. I know this was or has been talked about but this just reenforces what others have said about Bill with our gracious host threw the last year or so about CBBS is not going to stop the harassment until a court orders him to, and or sitting in a jail cell. And I quote;

    “Well, the only way I will give up… by dying.”

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