Copyright Trolling


The time I would have spent drafting a post for today was spent doing research to support a fellow blogger who is being threatened with a lawsuit by a copyright troll. Almost seven years ago, the blogger linked to a story at a major newspaper’s website, including a photo from the story. Years later, the photographer is trying to extort money out of the blogger for use of the image.

First of all, such a link is most likely an example of Fair Use.

Even if it weren’t, research indicates that the photographer may have failed to timely file for registration of the copyright on the image. IANAL, but it’s my understanding that such  a defective registration means that the copyright holder is only entitled to the actual damages he suffered. Statutory damages are off the table. Indeed, I believe that a reasonable argument can be made that the blogger’s linking to the newspaper’s article created additional traffic to the story and enhanced the value of the photo. Thus, the photographer received a benefit from the link rather than suffering any damage. His case is nonsense.

Copyright trolls need to be dealt with swiftly and firmly.

Team Kimberlin Post of the Day


One of the benefits of following The Saga of Team Kimberlin has been the friendships that I have developed with my various codefendants, some of whom I got to know before we were sued and I was simply covering the First-Amendment-related story of The Dread Deadbeat Pro-Se Kimberlin’s use of lawfare to punish people who told the truth about him. Stacy McCain is one of those friends, and the TKPOTD from four years ago today dealt with TDPK’s foolish attempts to out-crazy Stacy.

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Back in June of 2014, Judge Hazel ordered The Dread Pro-Se Kimberlin to serve copies of the Second Amended Complaint in his Kimberlin v. The Universe, et al. RICO Madness on all the defendants. He never bothered to serve Aaron Walker, Stacy McCain, Ali Akbar, the National Bloggers Club, or me during the 120 days allowed for service.

Aaron and I have been proactively engaging with TPDK and his court filings. Stacy elected to wait until he was served with the intention of responding within the 14 day window after service. TDPK never served him, so Stacy never responded.

popcorn4bkBrett Kimberlin tired to outcrazy Stacy McCain while he had him on the witness stand during the Kimberlin v. Walker, et al. trial. He failed miserably, but he didn’t learn his lesson.

He’s now seeking a default judgment against Stacy when, as Stacy so ably put it “Plaintiff hasn’t even bothered to provide a bad forgery of such alleged service.” Federal Rule of Civil Procedure 4(m) failure to serve within 120 day is grounds for mandatory dismissal. Also, TDPK was ordered by the Court to effect service. Failure to obey that order is grounds for dismissal under Rule 41(b).

All TDPK had to do was mail Stacy a copy of the SAC.

All Stacy had to do was wait.

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Going after Stacy was clearly more that Kimberlin could handle, and TDPK dropped Stacy as a defendant in Kimberlin v. National Bloggers Club, et al. (II), the state RICO Retread LOLsuit.

Team Kimberlin Post of the Day


One of the dumbest things Brett Kimberlin has done during his campaign of lawfare was to use Bill Schmalfeldt as one of his PR mouthpieces. Aside from his incompetence, Schmalfeldt personal legal problems became a massive source of pointage, laughery, and mockification that damaged the Team Kimberlin brand. Schmalfeldt’s misbehavior resulted in his receiving a dozen restraining orders issued in five states. One was issued to protect a three-year-old child.

Here are a couple of posts from four years ago today that dealt with Schmalfeldt’s inability to obey one of those court orders. The first was a Legal LULZ Du Jour. The second was a Prevarication Du Jour.

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NQ01601211819ZIf the Cabin Boy™ were to bother to read his copy of the stalking no contact order issued against him on behalf of Patrick Grady, he would see that he is forbidden from communicating “to or about” Mr. Grady. NCO_b1It may be that Cook County is interested in seeing that the orders of its courts are obeyed. BTW, Wisconsin recognizes out-of-state orders as enforceable in Wisconsin.

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NQ201601212145ZNo, I don’t hate the First Amendment. I believe that prior restraint on publication generally is prohibited by the First Amendment, and the Supreme Court agrees with me. See New York Times v. United States, 403 U.S. 713 (1971), also known as The Pentagon Papers Case.

However, I do believe that it is possible for someone to do something that can result in the loss of some or almost all of his rights. For example, a felony conviction will put an end to a person’s Second Amendment right to own a modern firearm. A jail sentence ends someone’s right to travel as he pleases. Thus, it may be that a finding by a court that one has used his speech to violate the rights of another can cause a loss of some of the violator’s First Amendment rights. IANAL, and I haven’t read much case law in the area, but I wouldn’t be surprised to find that the Illinois stalking no contact order law is valid.

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Schmalfeldt should have spent more time invoking his Fifth Amendment right to remain silent. IIRC, the last of the restrain orders has expired, so his First Amendment right to speak is unfettered. But now it seems that nobody is listening.

Karma is a bitch.