Legal LULZ Du Jour

The Cabin Boy™ really does’t understand the relationship between copyright and authorship very well.Cheddar201603081926ZThe document that Schmalfeldt is so worked up about is the Settlement Agreement from the Hoge v. Schmalfeldt copyright lawsuit. Neither the Cabin Boy™ nor I have any copyright interest in that document. It is the work product of Judge Timothy Sullivan who conducted the Alternate Dispute Resolution conference that led to the agreement. As the work product of a federal employee, any copyright to the agreement would belong to the United States, but because it’s a court document, it’s in the public domain. Moreover, that document has been attached to various court filings, so reporting on its contents is clearly within Fair Use.

The Cabin Boy™ also seems to think that he owns the copyright to pictures of him that were taken by other people. The copyright belongs to the photographer—unless it was “work for hire” or unless the Cabin Boy™ has a written document transferring the copyright.

UPDATE—I got a call from a lawyer who wonders if I might be misinterpreting the Cabin Boy’s™ tweet. He suggested that Schmalfeldt thinks I might have somehow violated his “copyright” to the motion to disqualify Aaron Walker (and the attached exhibits) filed in his LOLsuit VI: The Undiscovered Krendler. If that’s the case, the Cabin Boy™ is even dumber that I thought. I verified that he had served the motion on Aaron Walker before I published anything. Either mailing the motion or serving it on the other parties’ counsel would be sufficient to make it a court paper. Once it’s a court paper, it’s in the public domain. (That’s one of the reasons why I checked to see if it had been served.)

Jealousy and Butthurt

The Dread Pro-Se Kimberlin’s current lawfare isn’t limited to the Kimberlin v. Walker, et al. and the Kimberlin v. The Universe, et al. vexatious lawsuits. He has also filed a frivolous copyright suit against the anonymous blogger(s) Kimberlin Unmasked. There are lots of defects in the copyright suit, not the least of which is the fact that TDPK admits in the suit that he’s not the holder of some of the copyrights he is suing over.

Reading over the suit again, it seems to me that a big part of TDPK’s motivation for the suit is jealousy. His websites have vanishingly small presence on the Internet. OTOH, those of us who have been blogging about him have much higher traffic.BK v KU ECF1-15In essence, TDPK is bitching because others are more creative and more successful with his material than he is. Their Fair Use parody and criticism has more real world impact than his original work. Unfortunately for TDPK, butthurt is not a cause of action under copyright law.


Prevarication Du Jour

MrA201310072045ZWhich copyright violations? Well, I can’t be sure because there were so many.

meFor example, the Cabin Boy has received multiple DMCA takedown notices over his use of an image of my face. BTW, the notices haven’t come from me. I’m not the copyright holder. He published that image again during the last few days on one of his Twitter accounts.

As I pointed out yesterday, Schmalfeldt has published images of complete posts from Hogewash! on Twitter. Brief quotations from a post are certainly covered by Fair Use, and that would include a 100% quotation of a very shot post, but otherwise a complete ripoff of an entire post without permission is a copyright violation.

It’s possible that none of these violations resulted in his suspensions, but there were plenty of others that could have.

It’s not Ali Akbar who’s lying.

Oh, if you go looking for the @Tidingsofdoom account on Twitter, you’ll find that the Cabin Boy has abandoned it and that it has been picked up by Not Bill Schmalfeldt.

Prevarication Du Jour

frr201310071748ZI guessing that tweet refers to the Hogeman: Internet Astronomer post I did this afternoon. That post contains no copyrighted material belonging to Bill Schmalfeldt. It does, however, contain links to his material, and linking to someone else’s work is not the same thing as posting it.Hogeman_codeAs can be seen above, the post in question only contains links. Clicking on the SoundCloud link takes you that site. YouTube responds to its link by serving the video back to this site, but the video is on YouTube and being streamed from its server.

OTOH, the Cabin Boy routinely takes copyrighted material from this site by using images of entire Hogewash! blog posts on his Twitter feed and websites. He has never asked for permission.

An Interesting Fair Use Decision

The official portrait of the mayor of Madison, Wisconsin, was used to create a image for some protest t-shirts. The photographer who owned the copyright sued. (The mayor didn’t; he was the subject of the picture not its creator.) The U. S. District Court ruled against the photographer, finding that the image on the shirts was covered by Fair Use.

You can read more about it over at The Volokh Conspiracy (H/T, Ron Rounds).

Fair Use

Here’s an example of the Fair Use of someone else material.

At midday on 18 February, 2013, during his Internet radio broadcast, Bill Schmalfeldt made the following threat at around 1:02:40 into the program:

It’s all horseshit. It’s all absolute horseshit. And I and my family have been put through pain and suffering because Lee Stranahan has a grudge. Because somebody, in my opinion, is paying Lee Stranahan to file these charges against me, in the hopes that I will either break or die.  I got some fucking news for you, Stranny [pause] Walker, Hoggy, Frey [pause] and Frey [pause] beware the Ides of March.

Here is an mp3 file of the threat.

This is a quote of roughly 45 seconds of an hour+ talk program. It’s an in-context quote of exactly what the Cabin Boy said so that his remarks could be fairly criticized. His words were not rearranged via editing to change their meaning. It’s a classic example of Fair Use. Of course, the criticism was adverse criticism, and Schmalfeldt reacted in his I-can-dish-it-out-but-not-take-it mode. He whined. He whined on his Internet talk show. He whined on Breitbart Unmasked. He whined on Twitter. He even went so far as to file a bogus DMCA takedown notice for an entire blog post containing the above material rather than just the quote. There’s a reason he’s referred to as the Sore Loserman.

As far as I’m concerned, the Cabin Boy or anyone else is free to use excerpts from Friday night’s talk program in ways covered by Fair Use. However, I do not grant permission to anyone to reedit the program.

It will be interesting to hear how Schmalfeldt uses the material. I suspect that he will do an excellent job of making a fool of himself and helping make my case for me. Which brings us to Hoge’s Corollary for Stacy McCain’s Observation—

An even easier way to discredit Bill Schmalfeldt is to let him quote you.


UPDATE—Fixed the broken mp3 link.

On Copyright Infringement

Some people seem to think that just because they can write a set of lyrics that fit the melody of an existing piece of music that that are entitled to use someone else’s tune. A parody of the original work might qualify under the Fair Use doctrine, but using the tune for the purpose of parodying something or someone else is a clear violation of the songwriter’s  copyright.

For example, Justice Through Music Project has posted a music video called Happy Springtime (Bush is Over). The music is clearly ripped off from John Lennon and Yoko Ono’s Happy Xmas (War is Over). Now it may be that permission was obtained from Lenono Music and Ono Music, the copyright holders, to use the tune. OTOH, I doubt that those music publishers would have agreed to the copyright notice placed on the video:

Music by
John Lennon
Lyrics by
Brett C. Kimberlin
Copyright 2007
BrettSongs / Innocent Music

The plain reading of that notice is that BrettSongs / Innocent Music claims a copyright on John Lennon’s tune.

Another example, would be some of the songs that have recently appeared on RadioWMS. I doubt that The End Of Music, Mj Twelve Music, or Primary Wave Tunes, the copyright holders of Smells Like Teen Spirit granted permission for use of the tune by Bill Schmalfeldt in Smells Like Groundswell.

Neither of these examples is a parody of the original song involved. When that’s the case, permission is required from copyright holder in order to produce a derivative work. I can’t find the words “Used by permission” on anything associated with those two examples. If the copyright holders were to take notice and legal action, the results could be very, very expensive.

Team Kimberlin Post of the Day

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.

BS and Barney

Bill Schmalfeldt can dish out, but he can’t take it. He whines about being the subject of a parody. Poor Bill. He’s kinda like Barney. When the owners of the rights to the purple dinosaur found out about a parody video that featured a Barney lookalike, they sued. And they lost.

The case is called Lyons Partnership v. Giannoulas, et al., 14 F.Supp.2d 947 (1998). In finding for the defendant the court wrote:

A good-faith intent to parody is not an intent to confuse. Elvis Presley, 141 F.3d at 203. Although plaintiff does not appreciate defendants’ intent, there is no doubt that parody is intended. Defendants’ act is not an effort to confuse consumers, but rather to amuse. Hormel, 73 F.3d at 505. And, the parody does not simply “use the original [Barney] in a humorous fashion.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 597, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994) (Kennedy, J., concurring). Rather, it targets Barney himself and not just the general style, the genre of art to which he belongs, or society as a whole. Id. Contrary to what plaintiff urges again and again, any other character, such as Mickey Mouse, could not be substituted in defendants’ act to achieve the same effect.

The court also said:

In assessing fair use, courts consider: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for, or value of, the copyrighted work. Campbell, 510 U.S. at 577, 114 S.Ct. 1164.

Putting all the factors together, no conclusion can be reached except that defendants have fairly used elements of plaintiff’s copyrighted works.

This was a case of a Barney lookalike appearing in a video and being booed. But Barney took his loss in court like a man.

Bill Schmalfeldt doesn’t seem to handle losing in court as well. One wonders why he would want to sign up for more.

30 Seconds of BS

The following is quoted to provide context for criticism of the remarks:

RadioWMS ‏Courts have said 30 sec. of audio constitutes fair use. But they also say if permission is available, one should at least ask.
7:27 PM – 26 Jul 13 GMT

Bill Schmalfeldt really should stop getting his legal advice from Acme. He should give Google Scholar a try. If he did, he would find cases like Higgins v. Detroit Educational Television Foundation, 4 F.Supp.2d 701 (1998). Reading it, he would find this:

Nor does a quantitative approach aid Plaintiff. Defendants used 35 seconds of Plaintiff’s 3-minute-and-35-second musical composition in “Stop the Violence II”. This amounts to 16% of the copyrighted work. As indicated above, in some instances, copying entire works have, nonetheless, been permitted under the fair use doctrine. See e.g., Triangle Publications, Inc. v. Knight-Ridder Newspapers, Inc., 626 F.2d 1171 (5th Cir. 1980) (upholding a finding of fair use when the defendants used the entire cover of the plaintiff’s publication, TV Guide.) Cf., Schumann v. Albuquerque Corp., 664 F.Supp. 473 (D.N.M.1987) (broadcast of performance of entire copyrighted song by a commercial radio station without copyright holder’s permission where the broadcast was not a news show, held not to constitute fair use.)

Guided by the foregoing authorities, the Court finds that, on a quantitative level, the use of 16% of Plaintiff’s musical composition is not so substantial to tip this factor so as to tip this factor in favor of Plaintiff.

Therefore, the Court finds that Defendants’ use of “Under the Gun” is both quantitatively and qualitatively insubstantial.

“… copying entire works have … been permitted under the fair use doctrine.” And in this case 35 seconds of audio is OK. “… the entire cover of … TV Guide.” Not just a clip from a photograph, huh?

Meep, meep.

Team Kimberlin Post of the Day

I’m told that Cabin Boy Bill Schmalfeldt is making hints that I will receive some DMCA takedown notices today in apparent retaliation for a third-party’s takedown notice to him for his use of an image of me that is subject to the third-party’s copyright. OK. I’ll file the appropriate counternotices and after a bit of disruption things will be back to normal. The Gentle Reader may remember that Schmalfeldt tried a similar stunt with Aaron Walker’s YouTube account. The end result of that was that Mr. Walker’s account was fully restored.

I would expect as similar result in my case.

DCMA takedown notices are not something to send on a whim. There are severe consequences for making a bogus DMCA claim. Diebold learned the hard way to the tune of $125,000.

Automattic, the company that hosts, asks that DMCA notices first be directed to the blogger. They ask that they not be contacted until after things have not be satisfactorily resolved between the blogger and the complainer. My DMCA contact information can be found here.

UPDATE—The Cabin Boy’s tweets about the DMCA takedown notice he received yesterday start with a comment that I don’t like the picture. As far as that goes, he’s correct, but his subsequent tweets seem to imply that the photographer who sent the notice would not have found the picture on his own. Why would Schmalfeldt think that? Is his site traffic that low?

Even with near zero traffic, sites get stumbled upon. For example, someone searching for information on the Grand Ole Opry could have transposed two of the letters in the WSM call sign and googled or binged to the Cabin Boy’s site.

Still, it’s interesting that Bill acts as if a member of the general public would have no interest in his work or reason to be visiting his website.

Of IP and IP

It may have been a bit of rough day for Cabin Boy Bill Schmalfelt. First of all, the IP address for the name server for his hate sites dedicated to Aaron Walker, Stancy McCain, and me don’t seem to be working. It looks like some sort of technical glitch.

Second, I received a copy of a DMCA takedown notice that was sent by the photographer who owns the copyright on the head shot I use under license on the blog’s About page. Given the Cabin Boy’s long-winded assertions of his rights to his intellectual property, one wonders why he appears so upset that a copyright holder would complain about work being used without permission.

Sore Loserman.

Why Bother With Copyrights?

The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries …

—Constitution of the United States of America, Article I, Section 8

I own a fairly good bit of intellectual property—trademarks, service marks, and copyrights. (My patent rights are assigned to a former employer.) OTOH, I’ve placed a good deal of material in the public domain or licensed work through Creative Commons. Why do I give some stuff away and retain control of other things?

Here’s the key word: control.

Some things have sufficient economic value to me that I want to keep control of them as sources of income. Some things have artistic or intellectual value that I want to protect.

Other things “promote the Progress of Science and useful Arts” by being freely shared.

Still other things are worth giving away for the promotional value. For example, I someone were to post a copy this particular blog entry elsewhere and tell folks to go look at it, that would be free advertising for Hogewash!, something that a small-time blogger like me should be happy to have. Even if the person providing that free advertising were strongly critical of Hogewash!, I’d be disinclined to send a takedown notice so long as this blog entry was posted without alteration so that it could speak for itself.

But not every blogger is so confident of the integrity of his writings.

Team Kimberlin Post of the Day

A friend sent me a link to a video Cabin Boy Pip Bill posted on YouTube in December, 2011, during which he whines about being harassed on Facebook and having his copyrighted material used without permission.

BSwhine_imageImage Credit: bschmalfeldt via YouTube (Fair Use for criticism)

The poor guy pouts because someone repurposed an image he had used on one of his now defunct websites. (Parody, by the way, is one of the fair use exceptions to copyright protection.) Oh, and when Facebook didn’t take down the offending material, Schmalfeldt issued [dramatic chord] a press release—which had almost as much effect as one of Brett Kimberlin’s petitions.

The Cabin Boy can’t take it, but he feels free to dish it out.will_parody

Image Credits: Left, © 2013 W. J. J. Hoge. Right, Breitbart Unmasked (Fair Use for criticism)

Moby-Dick-3Bill Schmalfeldt seems to have no qualms about taking someone else’s copyrighted work and using it for parody. Indeed, he appears to feel free to simply use another person’s work. See, for example, the thumbnail at left. He has used a large version of that image (reproduced here in miniature for reference, another form of fair use) in a recent post without attribution. However, there are no special rules for Mr. Schmalfeldt.

I, of course, haven’t threatened to go after him for copyright violations because, regardless of how puerile his humor, parody is a legitimate form of fair use. I can’t speak for other folks whose intellectual property rights he may have violated. Nor can I speak for persons who only signed away limited use rights on a model release.

Bill Schmalfeldt has written, “I am a crude and vulgar person whose pursuit of truth sometimes lands me in trouble. … I am crude, vulgar—but honest.”

Does an honest man routinely use other peoples’ work without attribution?

Fair Use and Copyright

One of the methods some people and organizations have used to attempt to squelch criticism is to claim that their copyrights have been violated and that the offending material must be removed from circulation. IANAL, but here is my understanding of why such claims are not always legal when applied to criticism or news reporting.

Justice Joseph Story wrote in Folsom v. Marsh that a

reviewer may fairly cite largely from the original work, if his design be really and truly to use passages for the purposes of fair and reasonable criticism.

Congress has taken the case law from such decisions and codified it in 17 USC 107 which applies this four-fold test for fair use:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

Some try to rely on the mythical “30-Second Rule” about using audio or video. (That “rule” comes from the licensing terms of a digital rights organization and has no legal consequence except between that group and its licensees.) Note that there is no arbitrary time limit in the law.

So how does that work out in the real world?


How might a court interpret the use of a 44 second audio clip in a critical review of someone’s speech?

Was it used as part of fair and reasonable criticism? Was the use commercial or non-commercial? How long was the speech; is 44 seconds out of more than an hour a substantial portion? Did the use of the clip unfairly affect the market value of the entire work or did it support honest criticism?

Fairly extensive complete quotations and/or clips are sometimes required for fair context. A good example is the See It Now broadcast that Edward R. Murrow did on Joseph McCarthy.

The attempted use of copyright to suppress criticism or news reporting can backfire. Diebold tried it and wound up settling with Online Policy Group for $125,000.

BTW, fair use also includes parody. This why Hogewash! has not gone after certain uses of copyrighted photographs.

Coming Attractions

Over the next few weeks, Hogewash! will be hosting guest posts from blogs that have had material sent to the gulag by bogus copyright claims.

Please note that as an owner of intellectual property myself I have the greatest respect for valid copyright claims. However, I believe that “fair use” of copyrighted materials must be allowed. The Copyright Office notes that

The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission.

Of course, one prime example of fair use is what the Copyright Office described in its 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law as a

summary of an address or article, with brief quotations, in a news report …

which nowadays includes short audio or video clips. Anyone considering a false copyright claim may wish to review 17 USC 506(c) with his lawyer beforehand.

As they used to say in print—Watch this space.

UPDATE—Anyone considering making a DMCA claim based on the mythical “30-Second Rule” may wish to review 17 USC 107 and the applicable case law with an experienced intellectual property lawyer beforehand. Online Policy Group v. Diebold may be particularly instructive.