It reminded me of something I wrote back when he was having issues with copyright ownership of the first post on this blog.
It had been a comment but grew too long. I put it aside and by the time I came back to it the moment had passed. But Bill’s strange letter to Flynn deserves a response. So here it is, after the jump:
Because you’re nice, I am going to explain this. In short words that anyone, including the Howard County MD Sheriff’s Department, can see and understand without them passing through your victimization filter.
Let’s begin at the beginning; a beginning that, in your interactions with me on Twitter on April 30, 2014, you seem more than determined to ignore.
On March 26th, 2014, you published a post at Patriot-Ombudsman.com entitled Gotta Hand It to Hoge – He Knows How To Drive Traffic. In short, it was a long piece of what you believe qualifies as “satire.” In it, you make fun not only of John Hoge III, but also of his wife and his son with specificity and detail. To call it vulgar is accurate. To call it humorous is questionable, but all humor is a matter of opinion dependent on the audience. To call it mean-spirited is understatement. To call it satire is a falsehood.
Satire, Bill, has a point. An overarching theme. A message. It uses the vulgarity, the mean-spiritedness and the humor to convey a statement on some aspect of the human condition. Your post conveys no message. Your satire is utterly blunt and without point. What sharpness there is, exists only to injure and draw blood, rather than to inject and impart wisdom. As satire, it is a failure.
Perhaps it was that realization that caused you to remove it. Perhaps it was fear that John Hoge would see it as harassment, as a violation of the standing Peace Order prohibiting contact. Or perhaps you feared that it could be used as evidence in a libel action. Any of these could be a valid reason, or none of them. It doesn’t matter. What does matter is that one day it was there, and the next day it was gone. Fortunately, as you like to say when you are in a doxing mood, “Good thing I took a screencap, huh?” Also fortunate is the fact that you have admitted in the comments of another post here that you are the author.
Actually, it was a text capture – my smartphone does still have some limitations, but why quibble? I kept it because I believe you show an ever-escalating spiral of poor online behavior. Another of your many bêtes noires, Robert Stacy McCain, has aptly described it: Bill Schmalfeldt seeks attention. Bill Schmalfeldt gets attention. Bill Schmalfeldt claims victimhood.
So here was part 1: Bill Schmalfeldt seeks attention by attacking the entire Hoge family, husband, wife and son. Very strange it was, too, to see attacks on family members by the same Bill Schmalfeldt who condemns in the STRONGEST. POSSIBLE. TERMS! attacks on his own family members as beyond the bounds of propriety.
For others. Always for others. Never for you.
And it was after several more weeks of your standard online behavior, Bill Schmalfeldt seeks attention, Bill Schmalfeldt gets attention, Bill Schmalfeldt claims victimhood, that I decided something needed to be done.
Among other things, you continued to post epic falsehoods about your many doxing targets, only to vanish them after the lies (that you NEVER, EVER tell) were pointed out to you. You do realize that you are ALWAYS too late, don’t you? You do understand that for every blog post, tweet and comment you screen cap, there are probably ten people capturing everything you do in return?
And when have you ever apologized for being wrong?
Say, just as an aside, have you tracked down Patrick Grady’s firearms training permit yet?
(Yup, I have that post too.)
Since your horse-assery has already appeared elsewhere on this blog, I don’t think it’s necessary to print it again.
Bill, let us take a moment to review. The original toilet humor is yours, not mine. The original sexual references to John Hoge and to John Hoge IV are yours, not mine. The original “alcoholic wife” references are yours, not mine. The original mockery of commenters is yours, not mine.
The entire original post is yours, not mine. When I first posted the parody version, I noted that fact in the post. Because I still own all rights other than the world book and e-book rights to the post, I need no one’s permission to quote exactly what I said:
Now, as most rational people would understand, copying and pasting an entire blog post wholesale (with or without the 100+ attached comments) is a plain and obvious violation of copyright. So, we will not do so here.
What we will do is note that it was this “satirical” post which provided the inspiration to create another blog, dedicated to a single purpose: seeking out the stankiest, most nasty turds on the internet, and polishing them until they shine like brown nuggets of comedy gold.
This is your post, not mine. As such, I assumed that having posted it, you must not find it libelous, harassing, defamatory or tortious in any other manner. You always seem to have an eye out for that sort of thing, you see. Perhaps I was incorrect in making that assumption. If you took it down because you decided that it was in some way tortious, then we both made mistakes – you by posting it, and me by parodying it. The overarching fact which remains, Bill, is that the source material still exists, and you are the author.
The original act which set this chain of events in motion was perpetrated by Bill Schmalfeldt, and no other.
As such, can we agree that actions lead inexorably to consequences? That every action has an equal and opposite reaction? When you hit the POST button, you sank into your sweaty-palmed happy place, if only for a short while before regaining your senses and deleting the post, but at the same time, you offended someone’s sensibilities to a sufficient degree that, in our “The Internet Is Forever” world, you guaranteed that your post would be saved eternally, until it could be reversed on you at an opportune moment.
That it was I who saved your post is merely fate.
So, we determined that your words, your thoughts, and your peculiar, narrow notions of humor and satire, had ripened.
With a couple other people I know, we created a private blog. I have described it generally above; I will go no further. I am the chief moderator of that blog, and I decide who gets access. The list is small and exclusive and appreciative of very particular kinds of humor – primarily parody of other works. The parody to which Mr. Hoge now owns partial rights is one such. This parody, a work based entirely on your now-deleted post, is as original as Mel Brooks’ Young Frankenstein, while still based on Mary Shelley’s original tale. It is as original as The Carol Burnett Show’s Gone With the Wind parody sketch, while still based on Margaret Mitchell’s novel.
As I see it, Bill, you are now faced with another problem. I have parodied your original work, taken it and turned all the characters on their heads, while leaving in place all the sharp, biting, vicious and ultimately pointless humor. Some observers might say I improved on it by making it even moreso; others may disagree. That’s the nature of humor – it’s all a matter of opinion.
Parody is a much different art than satire. As I said before, satire has a point, a message; parody does not. Parody exists to exaggerate for the sake of humor. It takes a prior work and inflates it to monstrous proportions, thereby turning drama, or melodrama, to comedy. And as parody, I believe mine was brilliant. Obviously, you disagree. You find it more filthy than yours, more harassing, more pornographic, more vile, more insulting, more libelous, more … everything than yours.
Unfortunately, for you to maintain that my parody is filthy, harassing, pornographic, vile, insulting and libelous, is to admit that your post is as well. It’s hardly a position of strength.
Which brings us to the subject of copyright.
Your post is yours. It belongs to you. It’s your copyrighted work. It’s also gone from your blog. There’s an inherent contradiction in that. I can parody your post because I saved it, but you have no standing to challenge it as a violation without admitting what you and I, and John, and now anyone who reads this knows: you also published a filthy, harassing, pornographic, vile, insulting and libelous post.
On the other hand, my post is mine. It belongs to me. It’s my copyrighted work. And it remains, proudly, posted at both this blog, as of April 23rd, 2014, and at the private blog, where it is nearly a month old. There’s a difference between those posts, though, and it’s a difference which, like the opening act of this little play, you seem determined to ignore with all your might.
There is a long, thorough and very descriptive disclaimer, which informs the reader of the following:
- This is based on a post from your blog dated March 26, 2014
- You started the post by calling it a piece of “creative fiction” (and by the way, that one sentence quote was textbook Fair Use)
- Your post is consistent with what you label elsewhere as satire
- Your post is a very poor example of satire because it has no point to convey
- Your post was removed because you are a dishonorable coward
- We would not be reproducing your post because, as you had learned in your previous book, to do so is a copyright violation
- We have parodied the post elsewhere on a private blog, and if the reader is likely to be offended, they can cordially piss off. I quote: “Don’t start nuthin’, there won’t be nuthin’.”
- Given your continued efforts to remove error-strewn and/or ill-advised posts from your blog with neither explanation nor apology, we decided it was time to show off for the masses.
- Finally, a large and clear warning that GRAPHIC DESCRIPTIONS followed, and you proceed at your own peril.
Given your thorough prior knowledge of the situation, I have no doubt that you expected what followed. And yet, since I started my post almost exactly as you did:
(A PIECE OF CREATIVE FICTION IN LOVING TRIBUTE TO A CERTAIN FELLOW IN ELKRIDGE, MD AS I IMAGINE HIS HOMELIFE.)
am I not entitled to the exact same protection from charges that my parody is filthy, harassing, pornographic, vile, insulting and libelous, as you would without doubt claim, and in fact have claimed in the past, for yourself? “It’s just a joke, Ken and Lee! It’s just (pick one: sarcasm, satire, humor, etc.) Don’t you know a joke when you read one?” I think we can agree that you would make that claim, and I think we can agree that I must be entitled to it as well. Reciprocity in all things. Fair, as they say, is fair.
Did I violate a copyright by writing that parody? It’s very hard to make that case. The original satire directed at the Hoge family is published nowhere but on this blog; the copyright is by all rights, mine. How can you prove you ever held a copyright without admitting that you published it first? Would you really subject yourself to the legal repercussions of that? I suggest you engage an attorney before embarking on that course.
Did you violate a copyright by taking the entire parody from this blog and including it in your book? It’s very easy to make that case. First, the original copyright on that work clearly belongs to me, as of its publication date of April 23, 2014. Second, in your book Intentional Infliction, at the very start of the first paragraph, you note today’s date as April 24th, 2014. Parenthetically, this makes it difficult to argue, as you did on Twitter and several deleted blog posts, that the publication date of your book is also April 23, 2014. Additionally, on page 5, you identify me, by name, as the author of the post you are quoting, and you practically invite me to sue you for theft of copyrighted material. Bill, would you not agree that it is very hard to maintain that your extract falls under the Fair Use Doctrine when you recognize and admit the possibility of a copyright violation in your own words? Yes, yes, I know, I know: “It’s just a joke, ‘Paul’! It’s just (pick one: sarcasm, satire, humor, etc.) Don’t you know a joke when you read one?”
Well, even so.
The quoted portion of the post which you use made up more than 12 pages of Chapter 1, while your original work consumed less than 3 pages. That same quoted section, which you claim falls under the Fair Use Doctrine, makes up 2,163 words of a 2,745 word post. Mathematically speaking, that’s exactly 79%.
Fair use? Really?
Let’s talk a little bit about that.
On Twitter, you mentioned a four pillar balancing test. (By the way, I notice that you went from polite to rather nasty in a very short span while I was eating dinner and ignoring my phone. Are you 59 years old or 3?) I found a good explanation of that test at the LegalZip site. The four pillars are:
- Purpose and Character of use – there’s a sort of scale of permissibility, with educational/personal/non-profit use on the safer end, criticism, commentary and/or news reporting in the center, and for-profit use on the riskier side. I think it’s safe to say you have no real risk here as the stated purpose of the work is to raise awareness about cyberbullying and to raise funds for the National Parkinson’s Foundation. However, if it were to come to a court of law, I think we both know that John Hoge and I would both seek to make the argument that your book was nothing more than another act in your eternal pity-me-I’m-a-victim play. And I think we would have some success in that, given the depth and breadth of available evidence. But I digress – you say it’s not for profit, I have bigger fish to fry.
- Nature of the Copyrighted Work – is the copyrighted work factual or fiction? Again, I don’t think you have any great risk on this point.
- Amount and Substantiality of the Portion used from the Copyrighted Work – how much of the copyrighted work did you use? This also works on a sliding scale, and the less you use, the better off you are. That said, even if you use one copyrighted sentence, you can be guilty of infringement of a copyrighted work, if that one sentence is the most significant part of a novel. You made an example of Moby Dick (and a very poor example it was, too), but to be fair, if you want to publish a novel whose opening sentence is “Call me Ishmael,” Herman Melville’s estate is going to want a word with you. Given the facts of this specific case, that you have taken 79% of my post and made it more than 80% of your Chapter 1, those numbers are not going to play in your favor. This is the cliff over which you have figuratively thrown yourself.
Effect on the Value of the Copyrighted Work – how can money be made off of the copyrighted work? In this case, I didn’t have much interest in making money, but that does not mean there is not an income stream to be developed now or at some time in the future. Because the post belongs to me, that income stream also belongs to me, and any attempt to corrupt or divert revenue away from me (or John Hoge) is a violation. The following is a quote from the article: “Because of this factor, it’s generally a very good idea to stay away from using any copyrighted materials that could take away money that could be earned by the copyright owner. In fact, the best option is usually to get written permission from the copyright owner to use the work prior to using the work yourself. If it’s impossible to get permission (or find the copyright owner) to use the work, you may want to avoid using the work altogether, unless the “fair use” doctrine clearly applies. Finally, it’s usually a good idea to consult with an attorney in cases of doubt.“
Bill, your Fair Use claim simply doesn’t pass the smell test. We both know it. And so does John.
So, why does John own the world book and e-book rights to that post?
Because I sold them to him. There’s a contract and everything. It’s simple but legal. A private contract between two parties. You do not have the right to see it, and you will not see it. Whether it has my real name on it or not is irrelevant. I’ll get to that later.
Your next obvious question must be, why did I sell him the rights? There are several reasons.
- In my opinion, you stole my work. You may think otherwise, but you are wrong, and a court will agree.
- Worse than stealing my work, you stripped the context. It was parody, clearly identified as parody, parody of your own work, but that didn’t paint you correctly as the victim, did it? So you stripped that context out like the spineless coward you are.
- Even then I might have let it slide, but you know you violated the copyright. You said so right on page 5. You as much as dared me to come get you. So, I found a way to make it happen.
- I intend to remain anonymous for a multitude of reasons. That’s why, before John suggested I sell the rights to him, I asked if it was possible to file a DCMA Takedown under a pseudonym (it is by the way, but there is still a chance of exposure). John suggested that I use an agent, but that was too much time and trouble for me to even investigate. Then he asked for a follow and offered to buy the limited rights. #SoSorryNotSorry if that’s inconvenient for you, but those are the breaks. You pays your money, you takes your chances.
- John is obviously more motivated to follow through and get the desired result.
- Perhaps most importantly, you need every possible reminder that if you can’t run with the big dogs, you better stay on the porch.
Lastly, I want to list for you the specific reasons I wish to remain anonymous. It is by no means an exhaustive list, but it may help you understand the deeper reasons for this whole episode.
- Kyle Kiernan
- Tom Puzio Sr.
- Bettina Haper
- Jeremy Kinsey
- Patrick Grady
- Chris Heather
- Roy Innes
- Robin Causey
- Nancy Gilly
- Lee Stranahan
I can only guess how many more; those are just the reasons I came up with off the top of my head.
You are a fool if you think I would ever send you an email, or not actively work to prevent you learning my real name. And quite frankly, even if you don’t think that, you’re still a fool.
Now, in closing, I want to say just a couple more things; first, I hope you realize that this letter is here so that anyone can see that you have been treated as an adult and not as a disabled victim. You have not been bullied, nor have I given in to your own pathetic attempt to bully me.
For the record, when you say “Give me X or I will do Y,” that’s textbook bully behavior. It doesn’t matter if X is school lunch money or a copy of a contract or my real name, and it doesn’t matter if Y is an ass-kicking by the bike racks after school or reporting someone to law enforcement or doxing them because you’re pissed off at them for getting the best of you.
It’s still bullying. Even if you are a homebound, indigent retiree with no self-control, it’s still bullying.
While you may be tempted to cut and paste from this post as you did from the other, I urge you not to do so. My going rate for copyright sale is very affordable, and the line of people who won’t mind buying the chance to do this all over again is forming already. The second thing I wanted to say is that in my last communication to you on Twitter, I did say that I would get you the information you need. I apologize for taking so long to get to it, but let me now share with you, not what you want – which is what you were asking for – but what you really need.
- You need to print this post;
- You need to roll the pages into a cylindrical shape;
- You need to then fold the ends together to make a sort of doughnut shape;
- You need to dunk that doughnut in a steaming hot mug of STFU;
- You need to eat that doughnut;
- You need to wait about eight to twelve hours;
- And finally, you need to just blow it out your ass.
The Thinking Man’s Zombie