VIDEO: Bill Schmalfeldt and the Law of Copyright

This is the latest post in what I half-jokingly call The Kimberlin Saga^®.  If you are new to the story, that’s okay! Not everyone reads my blog.  The short version is that Kimberlin has been harassing me for over a year, his worst conduct being when he attempted to frame me for a crime.  I recognize that this might sound like an incredible claim, but I provide video and documentary evidence of that fact; in other words, you don’t have to believe my word.  You only have to believe your eyes.  So, if you are new to the story, go to this page and you’ll be able to catch up on what has been happening.

So yesterday, I reported on Bill Schmalfeldt’s thuggish attempt to silence me with a bogus copyright complaint.  To review, I have been putting up a number of clips from his show on YouTube to report to my readers and viewers the news of what he said, to comment on it and indeed to criticize it.  Bill Schmalfeldt sent a bogus and harassing notice claiming I was violating his copyrights and announcing he had asked YouTube to take down the video, despite the fact that this clearly fell under the fair use doctrine.

And I told you that his claim was dishonest.  But on that point, I have been saving the coup de grace.  You see, Bill Schmalfeldt is not exactly consistent in his belief that we should respect the copyrights of others.

I’ll let this video speak for itself except to say that it is the beginning of his show Blood on the Microphone which he has used every single day since he changed it to that name about a week ago.  Admittedly it is crude, but I am a lawyer, not a videographer.  Enjoy:

And yes, as the video states, Bill Schmalfeldt doesn’t believe in freedom of speech.  He has specifically stated that it is perfectly fine for radical Muslims to use death threats and so on in order to silence others.  I will share with you when he said all of that at another time.

So now he is going on the radio claiming that people are using death threats to try to silence him.

Of course, if someone is doing that it is wrong.  While some of his conduct, including death threats and repeated unwanted contact by email and other electronic means is unprotected conduct, and I fully expect Maryland courts to punish him appropriately for it, I do not support vigilantism whether it is to stop unprotected conduct or to suppress protected speech.  Bluntly, it is never right to harm or threaten to harm, another person just because of something they said or wrote, even if that conduct is not protected by the First Amendment.

(And that is assuming he isn't doing it to himself, and there is no good reason to assume he isn't.  He has been known to use sockpuppets to leave threats in the past and is associated with notorious sock puppeteer Neal Rauhauser.)

But Bill Schmalfeldt is a flaming hypocrite when it comes to the law of copyright or even Freedom of Expression in general.  And hypocrisy is very often a sign of dishonesty.

Hmm, does anyone have the contact information for the attorneys for Fox TV or Comedy Central?

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Sidebar: And in case you can’t watch the video, here’s what it is.  It is a clip of the introduction to his show which features six clips from The Simpsons and one from South Park.  As it is playing, I am running a power point presentation demonstrating that none of those uses fall under fair use.  That presentation says the following:

Bill Schmalfeldt and the Law of Copyright

Bill Schmalfeldt complains that my videos featuring audio from his radio show violates his copyrights.

This is despite the fact that 17 U.S.C. §107 states that copyrighted material can be used if it is done for “criticism, comment, [and] news reporting” as I have in these clips.

But does Schmalfeldt really hold copyright sacrosanct?

You are listening to the introduction to his Blog Talk Radio show “Blood on the Microphone.”

Rewind and listen again as needed.

I count six different clips from The Simpsons, and one from South Park.

Listen to how he uses these clips.

Is he criticizing The Simpsons or South Park?

Is he commenting on the shows?

Is he sharing news about the shows or their creators, or anything at all related to the shows?

Is this being done for any of the purposes covered by the doctrine of fair use?

No, he is straight up borrowing those clips in the hopes that it will make you laugh and associate his show with their humor.

(Bill Schmalfeldt is not nearly as funny as they are… or as funny as he thinks he is.)

That, dear listener, is a violation of their copyrights.

Hypocrisy is a sign of dishonesty.

Bill Schmalfeldt is trying to get my clips of his show yanked from YouTube, because I am relentlessly criticizing what he is saying, and pointing out how he is indicting himself (and others) with his own words.

And I wonder particularly how the creators of South Park will feel about their clip being used by a man who attacked their right to freedom of expression, their right to depict Mohammed on their show?

A man who not only didn’t stand up to protect their freedom of speech when they were being silenced by death threats…

…but condemned others (like me) who did.

I wonder what they (and their lawyers) might say to that?

Incidentally, I am not violating copyrights of The Simpsons or South Park by playing that clip, because I am reporting on the news that he has violated their copyrights and indeed I am commenting on and criticizing it.

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Disclaimer:

I have accused some people, particularly Brett Kimberlin, of reprehensible conduct.  In some cases, the conduct is even criminal.  In all cases, the only justice I want is through the appropriate legal process—such as the criminal justice system.  I do not want to see vigilante violence against any person or any threat of such violence.  This kind of conduct is not only morally wrong, but it is counter-productive.

In the particular case of Brett Kimberlin, I do not want you to even contact him.  Do not call him.  Do not write him a letter.  Do not write him an email.  Do not text-message him.  Do not engage in any kind of directed communication.  I say this in part because under Maryland law, that can quickly become harassment and I don’t want that to happen to him.

And for that matter, don’t go on his property.  Don’t sneak around and try to photograph him.  Frankly try not to even be within his field of vision.  Your behavior could quickly cross the line into harassment in that way too (not to mention trespass and other concerns).

And do not contact his organizations, either.  And most of all, leave his family alone.

The only exception to all that is that if you are reporting on this, there is of course nothing wrong with contacting him for things like his official response to any stories you might report.  And even then if he tells you to stop contacting him, obey that request.  That this is a key element in making out a harassment claim under Maryland law—that a person asks you to stop and you refuse.

And let me say something else.  In my heart of hearts, I don’t believe that any person supporting me has done any of the above.  But if any of you have, stop it, and if you haven’t don’t start.