I'm Gonna Sit Right Down and Write Myself a Letter

To: CreateSpace.com

I am a blogger going by the pseudonym Paul Krendler. I blog at http://thinkingmanszombie.wordpress.com. I blog under a pen name for a reason, and I am unwilling to sacrifice my anonymity at this time, on the battlefield before me.

One of your members, William M. Schmalfeldt, Sr., has published today a title “Animus Nocenti,” what he calls a true story. While some of it may be true, most of his recollections of it will surely be fantastic fictions.

In April, he published another title called “Intentional Infliction,” in which he included a majority portion of one of my blog posts, with attribution but without permission. His goal in doing so was to force me to identify myself as required by law in the DMCA. Instead I was able to join with other like-minded netizens to thwart his blatant infringement on my copyright and maintain my anonymity.

Now, again, he has decided to “write” a book detailing legal woes of his own making, in the hope that he will so offend me that I will sacrifice my anonymity in order to force him to face some form of justice. This will not happen, because what I know of Mr. Schmalfeldt is that he tries to manipulate his enemies.

He wants me to sue him. Because to do so I must give up my anonymity, which is what he REALLY wants.

Instead of doing his bidding, I would like to remind you of several terms of your Member Agreement:

1. Mr. Schmalfeldt has agreed to abide by and comply with the Content Guidelines.
2. The Content Guidelines express that Mr. Schmalfeldt is expected to conduct proper research to ensure items sold through CreateSpace are in compliance with all local, state, national and international laws.
3. According to the member agreement, CreateSpace will immediately remove items from the service on learning that the item is not the property of the seller.
4. According to the member agreement, CreateSpace may at any time and without notice, reject, remove or refuse to list content.
5. According to the member agreement, CreateSpace may request members to provide additional information relating to Content, such as information confirming that members has all rights required to permit your distribution of the Content.
6. By consenting to the member agreement, Mr. Schmalfeldt represents and warrants that any information and documentation he provides to you will be current, complete and accurate.
7. By consenting to the member agreement, Mr. Schmalfeldt agrees that he owns all right, title and interest in and to the Content, including any copyright.
8. By consenting to the member agreement, Mr. Schmalfeldt further represents and warrants that

a. He will comply with all laws, rules, regulations, and orders of any governmental authority having jurisdiction over his performance thereunder;
b. He has all requisite right, power and authority to enter into this agreement, and perform his obligations thereunder;
c. Prior to his delivery of Content to you he has or has obtained all rights, clearances and permissions to grant the licenses he grants thereunder that are necessary for you to exercise the rights he grants under the Agreement;
d. He is granting you the rights, licenses and authorizations thereunder free and clear of any encumbrances;
e. The Content is not defamatory, libelous, obscene or otherwise illegal, does not infringe upon any Intellectual Property Right; and
f. The Content complies with all aspects of the Content Guidelines.

 9. By consenting to the member agreement Mr. Schmalfeldt agrees he will not do anything to intentionally prejudice the rights granted, but in the event that he loses any rights or other licenses, consents or permissions relating to a specific Title, he will immediately remove such Title from your Services.
10. According to the member agreement, CreateSpace may terminate this Agreement at any time by sending Mr. Schmalfeldt an e-mail notice at the e-mail address associated with his account.

In response to each of these terms, I offer in response:

1. I should hope that having done so, you will uphold your interests and see that he has and does abide and comply with the Content Guidelines.
2. Mr. Schmalfeldt may or may not have done sufficient research, but he has made no effort to ensure that his Content is in compliance with the law.
3. I have not reviewed the content in his book, but he has Tweeted that it was his intent while creating this book to freely use an unknown amount of content from my blog, whether he received permission or not. He did not receive permission. Therefore, it may be reasonably inferred as fact that significant portions of his work are neither original nor owned by him. Those portions have been stolen from me, and probably from others as well.
4. After you have performed your own investigation to confirm this, an investigation I will be happy to assist with as long as it does not compromise my anonymity, I would hope once more that you would uphold your interests and remove the Content as per the member agreement.
5. You have the option to request of Mr. Schmalfeldt additional information and documentation confirming his ownership of all rights detailed in the Agreement. Given that he has no such documentation, may I suggest you set the standard he has demanded of others in the past, and require him to produce a signed, dated and duly notarized Copyright Transfer Agreement in a timeframe sufficiently short to prove that he did not forge the same?
6. Given that he has no such documentation to confirm ownership of any material taken from my blog, you can reasonably conclude that any information and/or documentation he produces will be neither current, complete nor accurate.
7. Mr. Schmalfeldt does not own my content nor has he been assigned any rights or permission to use it. He can produce no authentic documentation stating such, and is therefore in violation of the Member Agreement.
8. Having consented to the Member Agreement, Mr. Schmalfeldt is further in violation of same in his:

a. Lack of compliance with US Copyright law;
b. Lack of right, power and authority to enter into the member agreement for the purpose of publishing material that does not belong to him;
c. Failure to obtain any rights, clearances or permissions to grant the licenses required for you to exercise the rights granted to you;
d. Granting of these rights while encumbered by the obligation to obtain permission to do so;
e. Representation that the Content is not defamatory, libelous, obscene or otherwise illegal (it may very well be obscene, depending on what content he has taken), does not infringe upon any Intellectual Property Right (having been used without permission, it most certainly DOES infringe on my right); and
f. Representation that his Content, which contains stolen property, complies with the Content Guidelines.

9. Mr. Schmalfeldt has agreed not to do anything to intentionally prejudice the rights granted, but he never held the rights to grant in the first place.
10. You have the option to terminate the Agreement at any time.

Fully realizing that because I have not given my name I may impress you only as a character as unbalanced as Mr. Schmalfeldt himself, you may choose to do nothing at this time. I understand and accept that. But I too am a CreateSpace member, and if Mr. Schmalfeldt can violate the Member Agreement with impunity and face no consequences, what am I to think? When it comes time to publish my works, will I be treated with the same permissive hand?

And if my circumstances change, and I again become more interested in protecting my copyright than in protecting my identity, then we will simply be having this conversation again, and I will constantly remind you that I suggested you undertake your own due diligence, but you chose not to do so.

Yours Truly,

Paul Krendler
The Thinking Man’s Zombie

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Author: Paul Krendler

The Thinking Man’s Zombie

9 thoughts on “I'm Gonna Sit Right Down and Write Myself a Letter”

  1. Honestly, I'm going to have to side with Eugene Volkh on this issue. I don't think you guys have adequately dealt with the fair use issue. I think you guys are ceding the moral high ground on this issue, and are starting to venture into SLAPP territory. Just my opinion, and opinions are like Schmalfeldts...
    http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/07/10/blogger-w-j-j-hoge-hogewash-sues-blogger-bill-schmalfeldt-patriot-ombudsman-for-copyright-infringement/

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    1. When you have a statement from the "author" that the purpose of putting so much of the bloggers material in his book is to force him to reveal his true identity by filing a DMCA takedown, fair use goes out the window.

      And if you read Volokh's article, he admits to not even reading the opinion, so it is safe to conclude he didn't see "Intentional Infliction", which had entire portions of this blog cut-and-pasted into it. Again, it went well beyond fair use.

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    2. HI NEAL!!!!!!

      Eugene V is in error, and remember after my epic slapdown he has been putting disclaimers at the bottom of his subsequent posts "I may be in error"

      Content is content and the INTENT of B.S is to steal content

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  2. Gotta love how shaky couldn't even refrain from threats in replying to his reviews on amazon, which got them deleted.

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  3. How the hell does a man that has "lost his voice" put out an audio CD? There needs to be a new word to describe him. Liar just doesn't cut it anymore. There has to be something bigger ad more powerful to describe a man who lies like most people breath. Simply astounding the depths he will sink to.

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  4. Golly, no, Bill!

    Until you actually sell one, it's not even a book. Just a collection of electrons arranged on a hard drive somewhere. Until you sell one. And even then it won't really be a book.

    I think of it more like an airsickness bag - a sturdy paper covering wrapped around a stanky batch of vomit, bile, spit and dry heaves.

    But scared??

    Oh, Bill. Certainly not any more scared than you are of a negative review.

    I didn't think your tender little labia could get more inflamed, as full of sand as they are already. But EPWJ has plainly put the lie to that.

    Butthurt is not a tort. Add some Preparation H to your shine box, you big baby.

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  5. Looks like old Bill is having a bad week. Can't keep his bogus threats up at Amazon, now he is saddled with yet another Peace Order. Couldn't happen to a more deserving man.

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