Bill Schmalfeldt’s empty threats on the direst of dire direness have been a staple of Team Kimberlin’s failed lawfare. This Legal LULZ Du Jour was published just after midnight six years ago today.
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28 U.S.C. § 1400(a) states:
Civil actions, suits, or proceedings arising under any Act of Congress relating to copyrights or exclusive rights in mask works or designs may be instituted in the district in which the defendant or his agent resides or may be found.
IIRC, Sarah Palmer lives in the Middle District of North Carolina. I’m reasonably sure she can’t be found in Milwaukee. The Cabin Boy™ will have to file in Greensboro to sue her.
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It didn’t take long for the Cabin Boy™ to start backpedaling. Before a quarter past ten that morning, I was reporting that Another One Bites the Dust.
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So with a likely total recovery of no more than $0.15 instead of $150,000 times dozens of images and the necessity of filing his next LOLsuit in North Carolina, the Cabin Boy™ has done the math and determined that a $400 filing fee and several possible trips to Greensboro make his threatened copyright LOLsuit an economic loser.I wonder what his next form of self-inflicted damage will be?
Meanwhile, the Gentle Reader can stock up on popcorn from Amazon by clicking on the image on the left.
Copyright trolling and bogus DMCA claims were two of the means that Team Kimberlin used to try to harass people. Their efforts invariably backfired. The TKPOTD for eight years ago today dealt with one of their early failures.
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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.
Meep, meep.
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BTW, a third image of my face that Schmalfeldt photoshopped into a pornographic image was lifted from the Vanderbilt University annual for my sophomore year. It turns out that the headshot he lifted had been taken during the first semester of my freshman year in the fall of 1965. I turned 18 on 31 December, 1965, so I was 17 when the photo was taken. I was underage, and he photoshopped that headshot into a pornographic image.
Bill Schmalfeldt claims he has never produced child pornography.
When Brett Kimberlin sued Kimberlin Unmasked for copyright infringement, he claimed that images from music videos were being used without permission. The TKPOTD for seven years ago today pointed out a basic flaw in his LOLsuit.
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This paragraph is from The Dread Pro-Se Kimberlin’s complaint in the Kimberlin v. Kimberlinunmasked copyright trolling lawsuit.And therein lies a fatal problem for TDPK’s lawsuit. Federal Rule of Civil Procedure 8(a)(2) requires that someone filing a pleading with a court provide
a short and plain statement of the claim showing that the pleader is entitled to relief[.]
Because TDPK never identifies which videos are his and which are JTMP’s he doesn’t show that he is entitled to relief. For all the court knows, all of the allegedly infringed videos belong to JTMP, and TDPK cannot sue on the organization’s behalf. JTMP would have to sue in its own right, and it would have to be represented by a lawyer instead of TDPK.
More fundamentally, TDPK never identifies which videos the allegedly infringing images were taken from. In effect, he’s saying, “Your Honor, they stole my stuff, but I can’t bother to tell you what they stole.”
If you thought the opposition to the motion for default was brutal, just wait till you see what can be put in a motion to dismiss.
Stay tuned.
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Kimberlin owns the copyrights to his songs. Have they been of any real economic value for him?
Sometimes, simple, even primitive, methods are useful when dealing with matters related to Team Kimberlin. Consider the example from this Prevarication Du Jour from five years ago today relating to protecting Paul Krendler’s anonymity.
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Bill Schmalfeldt is an ignorant fool, but his biggest problems come not from what he doesn’t know but the things he knows that aren’t true. Any payments I have made to “Paul Krendler” have used a payment technology other than checks.
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I originally considered titling the post as a Legal LUL Du Jour, but I concluded that Schmalfeldt was probably aware of the existence of cash and its use in paying for things, so I concluded that he was simply lyings.
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.
IIRC, all of the images that the Cabin Boy™ bitches about in his DMCA notice were published on Twitter. That gives other Twitter users a royalty-free license to republish them. Now, I don’t know whether all of the commenters involved have Twitter accounts, but even use by someone who isn’t a Twitter user or use of an image not published on Twitter would probably be covered by Fair Use as noted in Twitter’s email.
BTW, it was a righteous DMCA notice concerning an image that the Cabin Boy™ foolishly used that forced Breitbart UnmaskedBunny Billy Boy Unread to flee to an off-shore server.
The Dread Pro-Se Kimberlin’s copyright trolling lawsuit is about to be dismissed with prejudice, and that will relieve him of having to deal with the problem of altered Certified Mail green cards in front of Judge Titus. However, those cards are still part of the record. As such they can be used to impeach TDPK’s reliability as a witness or the authenticity of other documents he submits.
For example, here’s one of the green cards he submitted in the copyright case, together with the USPS tracking information. Notice that Restricted Delivery is checked on the card, but it is not shown as one of the services paid for on the tracking info.
The cards in question are exhibits that TDPK submitted himself.
The Dread Pro-Se Kimberlin has reached a settlement with Lynn Thomas and Peter Malone, the two individuals he alleges to be Kimberlin Unmasked, in his copyright trolling case.
TDPK never had much of a case. He said that Justice Through Music Project owned some of the copyrights, and he didn’t have standing to sue for those. He failed to register the copyrights he did own in a timely manner which created other problems for the viability of any suit.
I am unaware of the terms of any settlement agreement.
The Dread Pro-Se Kimberlin has had a bit of a mixed week. One judge granted his motions for alternate service of process while another denied a similar motion in another case that relied on the same set of facts. Lynn Thomas, one of the two persons that TDPK claims to be Kimberlin Unmasked, is a subject of both motions. She may now be served by email in the Kimberlin v. The Universe, et al. RICO Madness but not in the Kimberlin v. Kimberlinunmasked copyright trolling lawsuit. As I noted yesterday, that creates a split between judges sitting in the same courthouse.
TDPK also received an additional 54-day delay in the due date of his omnibus opposition to the motions to dismiss in the RICO Madness. Consequently, our defendants’ replies to his opposition are now due on 8 January, 2015, a 52-day delay.
Here’s the net of all that as I see it.
TDPK can now serve three of the remaining unserved defendants in the RICO Madness by email. Given his record to date, there is a significant possibility that he will screw up that service.
The delay in dealing with motions to dismiss in the RICO Madness will result in 7+ weeks of additional Team Kimberlin Posts of the Day discussing that case and related issues. Hello, Streisand Effect!
The 120-day period for service of process in the copyright trolling lawsuit timed out back in July. I would not be surprised if Judge Titus sua sponte dismissed the suit for non-prosecution.
Brett Kimberlin keeps saying that various defendants want to settle the RICO suit. I suppose that’s true in a certain sense. Some of us might be willing to settle if he offered a sufficiently large payment for their troubles and dismissed the suit with prejudice. And that’s probably the best case scenario for him at this point if the judge doesn’t grant our motions to dismiss. Otherwise, we go on to discovery and depositions.
As some day it may happen that a witness must be found,
I’ve got a little list, I’ve got a little list … (Apologies to W. S. Gilbert)
Judge Titus has denied The Dread Pro-Se Kimberlin’s motion for alternate service on Lynn Thomas and Peter Malone (who he alleges to be Kimberlin Unmasked) in the Kimberlin v. Kimberlin Unmasked copyright trolling lawsuit.
This is ruling reaches the opposite conclusion from the same set of facts as Judge Hazel’s ruling in the Kimberlin v. The Universe, et al. RICO Madness, creating a split within the same courthouse.
The Dread Pro-Se Kimberlin is not particularly good at attending to details. Consider these two motion which he just filed in U. S. District Court. The first relates to his copyright trolling lawsuit against Kimberlin Unmasked. The second relates to his Kimberlin v. The Universe, et al. RICO Madness.
Note to which court he addressed his motions.This really seems to be over the limit, even for a pro se litigant.
While I wait for The Dread Pro-Se Kimberlin to file his omnibus response to the defendants’ motions to dismiss his second amended complaint in the Kimberlin v. The Universe, et al. RICO Madness, I thought if might be interesting to review the story of his vexatious federal lawsuit by reposting some of the highlights of the past year’s coverage. TDPK had two other lawsuits going in addition to the RICO Madness, the Kimberlin v. Walker, et al. nuisance lawsuit and the Kimberlin v. Kimberlinunmasked copyright trolling. I turns out that he forged documents related to service of process in all three suits.
Another motion to dismiss has been filed in the Kimberlin v. The Universe, et al. RICO Madness. This motion is from Defendant Michelle Malkin and Non-Party Twitchy.
“Hold it,” I hear the Gentle Reader cry. “What do you mean ‘Non-Party Twitchy?'” I mean that Twitchy doesn’t consider itself to be a party to the suit, and that’s probably correct.
This goes back to one of the errors The Dread Pro-Se Kimberlin made in his original complaint. He listed 20 defendants in the caption of the complaint and named 22 in the text. When this screwup was pointed out, he almost, but not quite, fixed it with his amended complaint that he filed with the court. In that version of the amended complaint, he added one of the two missing defendants to the caption, but he didn’t add Twitchy. That’s the amended complaint on file with the court—the one that counts. Twitchy is shown in the caption of the “amended complaint” TDPK sent me, but Twitchy is not a party to the suit as far as the court is concerned.
The Clerk of the Court issued 18 summonses to defendants in the suit, and they are shown as Docket Item 4 on PACER. Here’s the list of summonses issued:
1. James O’Keefe
2. The Franklin Center
3. National Bloggers Clug
4. Breitbart.com
5. Erick Erickson
6. Mercury Radio Arts
7. Patrick Frey
8. Michelle Malkin
9. Glen Beck
10. Ali Akbar
11. William Hoge
12. Robert Stacy McCain
13. Lee Stranahan
14. Aaron Walker
15. Simon & Schuster
16. The Blaze
17. Ace of Spades
18. RedState
No summonses were issued for Kimberlin Unmasked, Mandy Nagy, DB Capitol Strategies, or Twitchy.
According to the Malkin/Twitchy motion to dismiss, on 6 January, Mrs. Malkin received a copy of the amended complaint as it was filed with the court, but she did not receive a copy of her summons. That means that she has not been served in the lawsuit. No summons, no service. Thus, TDPK’s claim in his report on the status of service of process to the court is false.
The Malkin/Twitchy motion claims that TDPK attempted to serve Twitchy at about the same time as the defective service on Mrs. Malkin. The amended complaint sent to Twitchy is the same version TDPK sent me, and Twitchy was sent a summons.
“Hold it,” I hear the Gentle Reader cry again. “Didn’t you just say the Clerk never issued a summons for Twitchy?”
Why, yes, I did, and, no, the Clerk didn’t. It seems that the summons sent to Twitchy has this legend across the top:That happens to be the PACER document tag for the summons issued to Aaron Walker.
Mr. Kimberlin appears to have simply inserted Twitchy’s name and address in place of those of Mr. Walker, the intended recipient of the summons actually issued by this Court.
Not only that, but he did an amazingly crude job of it. He didn’t even bother to match the typefaces used by the court to fill in the form.
Notice that the summons is addressed to “Twitchy c/o Salem Communications.” The sale of Twitchy to Salem Communications was announced on 10 December, and there was no public knowledge of the sale prior to that date. How did that address get put on a summons datestamped by the court on 12 November?
Finally, Mr. Kimberlin’s apparent falsification of court documents in an attempt to deceive Twitchy into thinking it was a defendant that this Court has summoned constitutes a fraud on this Court, and a violation of numerous court rules. Leaving aside whether it also constitutes mail fraud and/or any other criminal offense, this misconduct constitutes a separate, independent basis for dismissing the FAC [First Amended Complaint] under this Court’s inherent powers and/or Rule 41(b).
So it would seem that I’m not the only defendant in the RICO Madness who is having difficulty with service, nor am I the only one encountering bogus documents.
Michelle Malkin and Twitchy have also filed a request for a hearing on their motion to dismiss. Local Rule 105.6 allows the judge to rule on the motion without a hearing, but given all of the evidence that is piling up concerning defective service of process and questionable documents, he may schedule one.
Stay tuned.
UPDATE—TDPK seems to be having real difficulties with his paperwork. I’m reminded of the following exchange between Michael Palin and John Cleese:
Clerk: This is a dog license with the word “dog” crossed out and the word “cat” written in in crayon.
Mr. Praline: The man didn’t have the proper form.
UPDATE 2—Here’s the top part of the summons form as shown on PACER. Document 41 is the Malkin/Twitchy motion to dismiss. Document 4 is all the summonses issued by the Clerk of the Court. It’s amazing how crude the apparent forgery is.* * *
TDPK still hasn’t effected service of process on all of the defendants in the RICO Madness. He hasn’t been able to serve either of the individuals he claims are Kimberlin Unmasked in his copyright lawsuit. He has until 22 October to get persons served in the RICO Madness, but the time for service in the copyright case expired in July.
Just because I’m not posting something right now doesn’t mean that interesting things aren’t happening. They are, and I’ll report them when appropriate.
The Dread Pro-Se Kimberlin seems to have his panties in a knot over being caught again trying to play green card games. He’s filed this in his Kimberlin v. Kimberlinunmasked copyright trolling case.
However, I can’t report on the details of the amazingly stupid stunt that The Dread Pro-Se Kimberlin pulled yesterday. First, I don’t have all the information necessary, and, second, the fact that I don’t relates to the abject stupidity of his action.
All I can say for now is that TDPK must have finally figured out how desperate his situation really is.
This paragraph is from The Dread Pro-Se Kimberlin’s complaint in the Kimberlin v. Kimberlinunmasked copyright trolling lawsuit.And therein lies a fatal problem for TDPK’s lawsuit. Federal Rule of Civil Procedure 8(a)(2) requires that someone filing a pleading with a court provide
a short and plain statement of the claim showing that the pleader is entitled to relief[.]
Because TDPK never identifies which videos are his and which are JTMP’s he doesn’t show that he is entitled to relief. For all the court knows, all of the allegedly infringed videos belong to JTMP, and TDPK cannot sue on the organization’s behalf. JTMP would have to sue in its own right, and it would have to be represented by a lawyer instead of TDPK.
More fundamentally, TDPK never identifies which videos the allegedly infringing images were taken from. In effect, he’s saying, “Your Honor, they stole my stuff, but I can’t bother to tell you what they stole.”
If you thought the opposition to the motion for default was brutal, just wait till you see what can be put in a motion to dismiss.
Last week, The Dread Pro-Se Kimberlin filed a motion seeking default in the Kimberlin v. Kimberlinunmasked copyright trolling lawsuit against the two individuals he claims are Kimberlin Unmasked. They have filed their opposition to his motion.
UPDATE—I’m pleased to see that the evidence of the fraudulent green cards seems to be mostly derived from Hogewash! posts. This makes three cases where documentary evidence of forgery and/or perjury by TDPK have been placed in front of the court.
The Dread Pro-Se Kimberlin’s ongoing lawfare includes a bogus copyright suit, Kimberlin v. Kimberlin Unmasked. TDPK submitted what appears to be another one of his altered Certified Mail green cards as an exhibit to one of his pleadings in that case.Once again, the Restricted Delivery box is checked, but the Post Office receipt for the mail does not show that the fee was paid.The receipt was filed with the court as part of an exhibit for a pleading in the Kimberlin v. The Universe, et al. RICO Madness. Among the many things TDPK needs to explain is why the mailing receipt for service of process in the copyright suit would be relevant to service of process in the RICO Madness.
Here’s what The Dread Pro-Se Kimberlin told Judge Grimm on 11 March in the Kimberlin v. The Universe, et al. RICO Madness.Here’s what TDPK told Judge Titus on 13 March in the Kimberlin v. Kimberlin Unmasked copyright trolling.
So how was he able to identify Kimberlin Unmasked on the 11th if the information didn’t arrive until the 13th? Inquiring minds want to know.
As I’ve sat in courtrooms listening to TDPK spin his tales before various judges, I’ve noticed that he rarely says the same thing to different judges. His story always morphs into whatever he thinks he needs at the time.
I have the distinct feeling that someone will let these two judges know that they are being told incompatible stories about the same events.
Stay tuned.
UPDATE—Here’s a further discrepancy between the stories being told in these cases: In the RICO Madness Kimberlin Unmasked is identified as “Lynn Thomas.” In the copyright trolling KU is identified as “Lynn Thomas and Peter G. Malone.”
Given the vast number of persons that Team Kimberlin has assured us must be KU over the last few months—Aaron Walker, Jeff Dunetz, Dan Collins, Dustyn Hughes, Patrick Frey, Kender MacGowan, me, and others—why should anyone believe either Ms. Thomas or Mr. Malone have any connection to Kimberlin Unmasked?
I wonder what his next form of self-inflicted damage will be?
BTW, it was a righteous DMCA notice concerning an image that the Cabin Boy™ foolishly used that forced 
