_ _ _ fiLED _ _ mitRED

_ _ _ LO DG ED P .EC EI "~O
~U: ..1.8 2014
'"' cp,:<. ...1 5 - . C'I ST1~lr':::T COU41
v- 61 ';rRl':T O F U~~'(1..Afo;O
DE,"UTY
BY
U.S. DI STRI CT COURT FOR THE
DI STRI CT OF MARY LAND
(Northern Division)
Plaintiff,
)
)
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) CaseNumber 1:14-cv-01683-ELH
)
)
)
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Defendant. )
_ _ _ _ _ _ _ _ _ _ _ _ _ _ J )
WI LLI AM M. SCHMALFELDT
v .
WI LLI AM J OHN J OSEPH HOGE I I I
DEFENDANT'S MOTI ON FOR SUMMARY J UDGMENT
NOWCOMESpro seDefendant WilliamM Schmalfeldt, and for the reasons
set forth more fullyinthe attached memorandum insupport together with attached
exhibits, moves the Court to enter summary judgment infavor of the Defendant and
against Plaintiff WilliamJ ohnJ oseph HogeI I I , dismissing with prejudice all of
Plaintiffs claims inaccordance with the Federal Rulesof Civil Procedure 56and
Local Rule2-501 onthe basis that there are nogenuine issues of material fact in
dispute and Defendant isentitled tojudgment as amatter of law.
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Case 1:14-cv-01683-ELH Document 40 Filed 07/18/14 Page 1 of 11
U.S. DISTRICT COURT FOR THE
DISTRICT OF MARY LAND
(Northern Division)
WILLIAM M. SCHMALFELDT
WILLIAM J OHN J OSEPH HOGE III
Plaintiff,
)
)
)
) CaseNumber 1:14-cv-01683-ELH
)
)
)
)
Defendant. )
--------------..)
v .
MEMORANDUM IN SUPPORT OF DEFE.NDANT'S MOTION FOR SUMMARY
J UDGEMENT
TABLE OF COJ 'lTENTS
BACK GRO UN D 1
SUMMARY J UDGMENT STAN DARD 1
UNDISPUTED FACTS 2
DISCUSSI 0N 3
CONCLUSI 0N 7
TABLE OF AUTHORITIES
CASES
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) 1
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) 1
Desmond v. PNGI Charles Town Gaming, L.L.c., 630 F.3d 351, 354 (4th Cir. 2011) 2
Equal Rights Center v. Archstone Smith Trust, 603 F. Supp. 2d 814, 820 (D. Md. 2009)
............................................................................................................................................. 2
1
Case 1:14-cv-01683-ELH Document 40 Filed 07/18/14 Page 2 of 11
Lac Courte Dreilles Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d341,
349 (7th Cir. 1983)) , 2
Lasercomb America, Inc. v. Reynolds, 911 F.2d970 (4th Cir. 1990) 4, 5
SeeRossignol v. Voorhaar. 316 F.3d516. 523 (4th Cir.2003) 2
Shealy v. Winston, 929 F.2d1009, 1012 (4th Cir.1991) 1
STATUTES
17USC~101 , ,'" 6
17USC~411(a) '" '" 2. 3
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Case 1:14-cv-01683-ELH Document 40 Filed 07/18/14 Page 3 of 11
BACKGROUND
TheCourt isalready familiar with the background of the instant case
involving Plaintiffs claimof copyright infringement against Defendant
I. SUMMARY JUDGMENT STANDARD
Amotion for summary judgment shall begranted if the pleadings and
supporting documents show "that there isnogenuine dispute as to any material fact
and the movant isentitled to judgment as amatter oflaw." Fed. RCiv. P. 56(a).
Thewell-established principles pertinent to summary judgment motions can
bedistilled to asimple statement: TheCourt may look at the evidence presented in
regard to amotion for summary judgment through the non-movant's rose-colored
glasses, but must view it realistically. After so doing, the essential question is
whether areasonable fact finder could return averdict for the non-movant or
whether the movant would, at trial, beentitled tojudgment as amatter of law. See,
e.g.,Anderson v. Liberty Lobby, Inc., 477 U.S.242, 248 (1986); Celotex Corp. v. Catrett,
477 U.S.317, 323 (1986); Shealy v. Winston, 929 F.2d1009, 1012 (4th Cir. 1991).
Thus, inorder to defeat amotion for summary judgment, "theparty opposing the
motion must present evidence of specific facts fromwhich the finder of fact could
reasonably findfor himor her." Mackey v. Shalala, 43F. Supp. 2d559, 564 (D.Md.
1999) (emphasis added). When evaluating amotion for summary judgment, the
Court must bear inmind that the "summary judgment procedure isproperly
regarded not as adisfavored procedural shortcut, but (rather as anintegral part of
the Federal Rulesas awhole, which are designed 'to secure thejust, speedy and
inexpensive determination of every action.''' Celotex, 477 U.S.at 327 (quoting Rule1
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Case 1:14-cv-01683-ELH Document 40 Filed 07/18/14 Page 4 of 11
of the Federal Rulesof Civil Procedure). "Crossmotions for summary judgment 'do
not automatically empower the court to dispense with the determination whether
questions of material fact exist.'" Equal Rights Center v. Archstone Smith Trust, 603 F.
Supp. 2d814, 820 (D.Md.2009) (quoting Lac Coune Oreilles Band a/Lake Superior
Chippewa Indians v. Voigt, 700 F.2d341, 349 (7th Cir. 1983)). Rather, the court must
examine each party's motion separately and determine whether summary judgment
isappropriate as to each under the Rule56standard. Desmond v. PNGI Charles Town
Gaming, L.L.e., 630 F.3d351, 354 (4th Cir.2011). Thecourt may grant summary
judgment infavor of one party, deny both motions, or grant inpart and deny inpart
each of the parties' motions. SeeRossignol v. Voorhaar, 316 F.3d516, 523 (4th Cir.
2003).
II. UNDISPUTED FACTS
There isnogenuine dispute regarding the following facts:
1 OnMay27, 2014, Plaintiff filedaCopyright Infringement Claim
against Defendant inthis Court.
2. According to the receipt generated bythe U.S.Copyright Office's
website at http://copyright.gID', Plaintiff did not fileapplications for
Copyright Protection with the U.S.Copyright Officeuntil J une 5, 2014.
(Exhibit A).
3. According 17USC9411(0):
Except for anaction brought for aviolation of the rights of the author
under section 106A (i1), and subject to the provisions of subsection
(b), nocivil action/or infringemento/the copyright in any United
States work shall be instituted until preregistration or registration
o/the copyright claim has been made in accordance with this title.
Inany case, however, where the deposit, application, and feerequired
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Case 1:14-cv-01683-ELH Document 40 Filed 07/18/14 Page 5 of 11
.--------------------------------- -
for registration have been delivered to the Copyright Officeinproper
formand registration has been refused, the applicant isentitled to
institute acivil action for infringement if notice thereof, with acopy of
the complaint, isserved onthe Register of Copyrights.The Register
may, at his or her option, become aparty to the action with respect to
the issue of registrability of the copyright claimby entering an
appearance within sixty days after such service, but the Register's
failure to become aparty shall not deprive the court of jurisdiction to
determine that issue.ld. (Emphasis Added.)
4. Whilecontroversy exists among the various Circuit Courts of Appeal,
and sometimes within aparticular Circuit, as to whether the application approach or
the registration approach should beused byacourt to establish whether or not the
copyright holder has met his burden of proof inthe matter of copyright ownership,
there isno controversy that" ...no civil action for infringement of the copyright in
any United States work shall be instituted until preregistration or registration
of the copyright claim has been made in accordance with this title." Id.Emphasis
added.
5. Giventhe fact that Plaintiff filedhis Copyright Infringement Suit one
full week before filinghis copyright applications through the USCopyright Office's
website, the Plaintiff has not met the prerequisite for filingacopyright infringement
suit as set forth in17USC 411(aJ. Therefore, the Plaintiff has filedaclaimfor which
relief cannot begranted.
III. DISCUSSION
6. Eveninthe absence of this absolutely disqualifying factor, the Plaintiff
filesthis suit with Unclean Hands.Hecharges defendant with using portions of his
blog, Hogewash.com, onDefendant's former Patriot-Ombudsman blogwhile, all
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Case 1:14-cv-01683-ELH Document 40 Filed 07/18/14 Page 6 of 11
along, hehas done the exact same thing. Therefore, the Plaintiff should not be
allowed to prevail inhis suit asheis inviolation of the Unclean Hands Doctrine.
7. Eveninthe absence of all above, the Plaintiff should bedisqualified
frompursuing his claimas hehas engaged inCopyright Misuse.
8. Though the ideaof copyright misuse as adefense isnot new, (See infra
notes 130-62 and accompanying text (discussing Fourth Circuit's opinion in
Lasercomb America, Inc. v. Reynolds, 911 F.2d970 (4th Cir. 1990), barring plaintiffs
infringement action because plaintiff's actions constituted copyright misuse
notwithstanding absence of antitrust violation.) the Fourth Circuit isthe first
appellate court expressly to apply copyright misuse to bar relief inan infringement
acion. TheFourth Circuit's decision inLasercomb America, Inc. v. Reynolds (911 F.2d
970 (4
th
Cir.,1990) provokes the question of whether prior caselawactually
supports acopyright misuse defense. (See infra notes 44-129 and accompanying
text) Furthermore, if Lasercomb correctly recognized acopyright misuse defense,
the issue remains whether the scope of the defense should beas broad as Lasercomb
suggests." (See infra notes 178-83 and accompanying text). Inother words, should
courts recognize copyright misuse as anaffirmative defense inan infringement
action, and, if so, what constitutes copyright misuse? Seeinfra notes 178-83 and
accompanying text) These questions are not new," (See infra note 15) but Lasercomb
has finally provided solid support at the appellate level for the argument that the
copyright misuse doctrine, infact, does exist. Furthermore, the Fourth Circuit's
opinion inLasercomb supports the argument that afinding of copyright misuse
should rest primarily onthe public policy of copyright lawrather than onantitrust
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Case 1:14-cv-01683-ELH Document 40 Filed 07/18/14 Page 7 of 11
standards.'''(See Lasercomb America, Inc. v. Reynolds, 911F.2d 970, 978-979 (4th Cir.
1990)(finding explicitly that copyright misuse isvalid defense and stating that
finding of misuse depends onwhether copyright owner subverted public policy and
not onwhether copyright owner violated antitrust law.))
9. Byattempting to copyright material owned byothers inhis copyright
application of J une 5, Plaintiff has clearly engaged incopyright misuse, and therefore
his claimagainst Defendant should besummarily dismissed.
10. Evenif Plaintiff had made atimely copyright application before filing
the instant case, hefiledthree applications for copyright protection bythe U.S.
Copyright Officefor his blog, for the entire months of March, April and May.Indoing
so, heused the incorrect form, Copyright FormG/DN. Plaintiffs blogdoes not
qualifY as adaily newsletter, as Plaintiff attempted to register it. According to the
U.S.Copyright Officewebsite: (http://www.copyright.gov/eco/help-
newsletters.html)
Newsletter issues may beregistered as agroup ifthey meet all of the
following requirements:
o Thenewsletter must beadaily newsletter as defined above.
o The newsletter must be a "work mClJie-1orhire" that is, the employer is the
author.
o Theauthor (employer-for-hire) must also bethe copyright claimant.
o Eachissue must beanessentially all-new collectivework or all-new issue
that has not been published before.
o Theclaimmust include two or more issues within asingle calendar month.
o Theapplication must besubmitted nolater than three months after the last
publication date included inthegroup.
o Onecomplete copy of each issue included inthe group must bedeposited. If
the newsletter is published only online, one complete print-out of each issue,
or acomputer disk (or CD-ROM)containing all the issues and aprint-out of
the first and last issues included inthegroup, must besent.
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Case 1:14-cv-01683-ELH Document 40 Filed 07/18/14 Page 8 of 11
11. TheHogewash blogiscertainly not a"work made for hire" as defined
by 17 USC 101:
A "work made for hire" is-
(1) awork prepared byan employee within the scope of his or her
employment; or
(2) awork specially ordered or commissioned for useas acontribution to a
collective work, asapart of amotion picture or other audiovisual work, as a
translation, as asupplementary work, as acompilation, as aninstructional
text, as atest, as answer material for atest, or as anatlas, if the parties
expressly agree inawritten instrument signed bythemthat the work shall
beconsidered awork made for hire. For the purpose of the foregoing
sentence, a"supplementary work" isawork prepared for publication as a
secondary adjunct to awork by another author for the purpose of
introducing, concluding, illustrating, explaining, revising, commenting upon,
or assisting inthe useof the other work, such as forewords, afterwords,
pictorial illustrations, maps, charts, tables, editorial notes, musical
arrangements, answer material for tests, bibliographies, appendixes, and
indexes, and an "instructional text" isaliterary, pictorial, or graphic work
prepared for publication and with the purpose of use insystematic
instructional activities.
Indetermining whether any work iseligibleto beconsidered awork made
for hire under paragraph (2), neither the amendment contained insection
1011(d) of the Intellectual Property and Communications Omnibus Reform
Actof 1999, as enacted by section 1000(a)(9) of Public Law106-113, nor the
deletion of the words added bythat amendment-
(A) shall beconsidered or otherwise given any legal significance, or
(B) shall beinterpreted to indicate congressional approval or disapproval of,
or acquiescence in, any judicial determination,
by the courts or the Copyright Office.Paragraph (2) shall beinterpreted as if
both section 2(a)(1) of the Work MadeFor Hireand Copyright Corrections
Act of 2000 and section 1011(d) of the Intellectual Property and
Communications Omnibus ReformActof 1999, as enacted by section
1000(a)(9) of Public Law106-113, were never enacted, and without regard
to any inaction or awareness bythe Congress at any time of any judicial
determinations. (ld.)
12. Another disqualifying factor for Hogewash being registered as a"daily
newsletter isthat it isageneral interest blog. not apublication or website
containing "news or information of interest chiefly to aspecial group (for example,
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Case 1:14-cv-01683-ELH Document 40 Filed 07/18/14 Page 9 of 11
trade and professional associations, corporations, schools, colleges, and churches)."
(See http://www.copyright.gov /forms/formgdn.pJ Lf)
13. Plaintiffs attempt to circumvent the rules and regulations of the U.S.
Copyright Law as codified in Title 17 of the United States Code shows he either did
not do the due diligence necessary in bringing alawsuit, or he is perpetrating a
fraud on the U.S.Copyright Office. However the Court sees it, for this reason and the
ones stated above, this Court should grand defendant's motion for summary
judgment
IV. CONCLUSION
Based on the totality of the overwhelming evidence, Plaintiff has clearly not
made aclaim for which relief can be granted. Defendant therefore requests that the
Court grant his Motion for Summary J udgment against the Plaintiff, dismissing his
claims with prejudice, permitting the Defendant to proceed with his counterclaim,
and allowing him to file asecond amended counterclaim, based on things this pro se
defendant has learned about copyright law in his defense of this vexatious and
vindictive fraudulent suit brought by the Plaintiff.
DATED: J ULY 17, 2014
7
~ / ; t Y ! ; ~ / / - - -
William M. Schmal feldt, ProSe
6636 Washington Blvd #71
Elkridge, MD21075
bschmal fetdt@comcast.net
410-206-9637
Case 1:14-cv-01683-ELH Document 40 Filed 07/18/14 Page 10 of 11
Verification
I certify under penalty of perjury that the foregoing istrue and correct to the
best of myknowledge and belief and all copies are true and correct representations
of the original documents. /) .. / /l _
/ /VA 'M/~ v- ~.
WilliamM.Schmalfeldt
Certificate of Service
I certify that onthe 16
th
day of J une, 2014, I served acopy of the foregoing
Replyto Plaintiffs Motion for Preliminary Injunction and Memorandum inSupport
of Defendants Motionto Dismiss by First ClassMail to W.J .J .Hoge,20RidgeRoad,
Westminster, MD21157 byFirst ClassMain, Certified, Return Receipt Requested.
/1Jfi~/A-
WilliamM.Schmalfeldt
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