IN THE CIRCUIT COURT FOR CARROLL COUNTY MARYLAND

WILLIAM JOHN JOSEPH HOGE, III )

Plaintiff )
)
v. ) Case No. 06-C-16-070789
)
BRETT KIMBERLIN, et al., )
Defendants )
) _________________

DEFENDANT SCHMALFELDTS RESPONSE TO PLAINTIFF WJJ HOGES MOTION

TO ALTER OR AMEND JUDGMENT AS TO COUNT XII

NOW COMES Defendant William M. Schmalfeldt, Sr, with his Response to Plaintiff

WJJ Hoge IIIs Motion to Alter or Amend Judgment as to Count XII.

I. INTRODUCTION

This Court, in its August 23rd discussion of Count XII, stated that the damages requested

by Plaintiff for violation of Copyright Act would be tantamount to punitive damages, which are

not allowed in breach of contract disputes. Nothing in Plaintiffs motion changes that.

Moreover, his arguments regarding the Copyright Act are beyond the jurisdiction of the

Maryland Circuit Court since federal courts have exclusive jurisdiction over federal copyright

claims.

II. THIS IS A BREACH OF CONTRACT CASE

In Maryland, the state generally follows the rule of Hadley v. Baxendale, 156 Eng.Rep.

145 (1854), which holds that upon breach of contract, the non-breaching party is entitled to

compensatory damages from the natural and proximate consequence of the breach, or which are

reasonably within the parties' contemplation at the time of contracting. E.g., Stone v. Chicago

Title Ins. Co., 330 Md. 329, 342, 624 A.2d 496 (1993). The measure of such damages is the sum
which would place the injured party in the same position as if the contract had been performed.

Beard v. S/E Joint Venture, 321 Md. 126, 133, 581 A.2d 1275 (1990).

This Court will recall that Plaintiff, during his final summation, stated that his damages were

so miniscule that he would be satisfied with an award of nominal damages for each tweet alleged

in Count XII. Indeed, Plaintiff readily admitted that he would even be satisfied with a simple

declaratory judgment requiring Defendant Schmalfeldt to comply with the settlement agreement.

Despite these positions at trial, Plaintiff is now asking this Court to overturn its judgment

because Plaintiff really did allege more damages, and he wants this Court to use the federal

Copyright Act to determine those damages up to $150,000 per tweet. Plaintiff bases this

argument on a strained interpretation of liquidated damages, asserting that he was damaged by

his loss of copyrighted material. Unfortunately for Plaintiff, this is simply a circular copyright

infringement argument dressed up as a breach of contract argument.

In order to be entitled to compensatory damages, the Court would have to determine the

commercial worth of the words Plaintiff alleges were stolen from him. This would not include

any of the words in Schmalfeldts Twitter entries contained in the blog posts Plaintiff claims

Schmalfeldt stole from him, as Schmalfeldts ownership of his own words did not transfer to

Plaintiff when he posted them on his blog. Plaintiff bears the burden of proof in assessing the

damages done to the income he received due to the loss of control of his copyright.

However, Plaintiff has not done this.

Under Maryland law, the non-breaching party in a breach of contract claim may be

entitled to Compensatory Damages or Statutory Damages. According to Md. COMMERCIAL

LAW Code Ann. 22-807(b)(1)(2):

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 (b) Consequential damages; speculative damages. -- A party may not recover:

(1) Consequential damages for losses resulting from the content of published
informational content unless the agreement expressly so provides; or

(2) Damages that are speculative.

The Settlement Agreement Plaintiff alleges was breached by Defendant Schmalfeldt

makes no provision for recovery of damages by the non-breaching party. It only says, in

Paragraph 6, In the event that either of the Parties breach this Agreement, this Agreement does

not restrict the rights of the non-breaching party to take the appropriate legal actions in the

appropriate legal forum to seek relief for the breach of contract. Since Punitive Damages are not

allowed in breach of contract cases in Maryland, there are no Statutory Damages for Breach of

Contract under Maryland law. Moreover, 22-807 bars damages for losses resulting from the

content of published informational content unless the agreement expressly so provides (which

the Agreement does not), and the value of a blog post by Plaintiff has not been established.

Therefore, Plaintiffs alleged compensatory damages are speculative, which bars Plaintiff from

receiving monetary damages.

As far as injunctive relief, the language of Paragraph 5 of the Settlement agreement is too

vague to be enforced. It states, The Parties agree they will not post or republish any work by the

other without receiving written permission, in advance, from the other party, unless the terms of

service permit republication without permission. The agreement does not specify which

websites terms of service apply. If a third party copies and posts Plaintiffs content to a third

party website, such as http://archive.is or http://archive.org, is Defendant forbidden to copy the

content from that third-person website? As Defendant noted in his trial statement to the Court, to

which Plaintiff did not object, Plaintiff frequently copies and pastes complete Tweets from

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Defendants Twitter account in a manner forbidden by Twitter TOS, and has been doing so for

nearly a year before the first allegation made against Defendant.

Plaintiff alleges 11 violations of the agreement in Count XII. However, the Plaintiff has

not verified that the URLs from the below-listed paragraph from his complaint were not taken

from the third-party sources shown below. Moreover, he has not even authenticated any of these

tweets as required by Maryland Rules.

75. https://web.archive.org/web/20150421153624/http://hogewash.com/2012/09/03/more-
lawfare-threats-from-team-kimberlin/

76. https://web.archive.org/web/20160110050017/http://hogewash.com/2015/12/24/bonus-
legal-lulz-du-jour-2/

77. https://web.archive.org/web/20151230050734/http://hogewash.com/2015/12/26/legal-
lulz-du-jour-5

78.
https://web.archive.org/web/20160311221308/http://hogewash.com:80/2016/01/02/android-
logins/

79. https://web.archive.org/web/20160123065836/http://hogewash.com/2016/01/15/an-email/

80. https://web.archive.org/web/20160123064103/http://hogewash.com/2016/01/16/legal-
lulz-du-jour-9/

81. https://web.archive.org/web/20160131043612/http://hogewash.com/2016/01/19/team-
kimberlin-post-of-the-day-1045/

82, https://web.archive.org/save/_embed/https://hogewash.com/2016/02/12/team-kimberlin-
post-of-the-day-1069/

83. https://web.archive.org/web/20160228185640/http://hogewash.com/2016/02/15/bonus-
legal-lulz-du-jour-3/

84. https://web.archive.org/web/20160304033734/http://hogewash.com/2016/02/23/logins-
47/

85. https://web.archive.org/web/20160306115353/http://hogewash.com/2016/02/28/team-
kimberlin-post-of-the-day-1085/

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 All of the posts Plaintiff claims were stolen from his website could very well have been

copied and pasted from the above-listed websites, all of which link to the Internet Archives.

There is nothing in the archive.org Terms of Service forbidding fair use, non-infringing copying.

In fact, the TOS reads in relevant part:

You agree to abide by all applicable laws and regulations, including intellectual
property laws, in connection with your use of the Archive. In particular, you certify
that your use of any part of the Archive's Collections will be limited to
noninfringing or fair use under copyright law. (https://archive.org/about/terms.php)

Such copying from the Internet Archives would NOT be a violation of Plaintiffs

websites TOS, which permits anyone to copy whatever they like, with the following specific

exceptions:

To the maximum extent allowed by law, permission to reproduce copyrighted

material from Hogewash! in any form whatsoever is hereby denied to the following
individuals, organizations, or persons associated with those organizations. This ban
includes use by any of these persons while using a pseudonym. (Emphasis added)

William M. Schmalfeldt (aka Bill Schmalfeldt)

Brett Coleman Kimberlin
Matt Osborne
OsborneInk (osborneink.com)
Breitbart Unmasked (breitbartunmasked.com)
Neal Rauhauser
Karoli Kuns
Crooks & Liars (crooksandliars.com)
Justice Through Music Project
Velvet Revolution US
The user(s) of Twitter account @WhoIsNumberNone
William Ferguson (the user of Twitter account @wilsb8)

It would be Plaintiffs burden to prove the alleged copying was directly from his website

and not from a third party website, such as http://archive.org. He has not done so in this case.

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III. THIS COURT DOES NOT HAVE JURISDICTION OVER ANY COPYRIGHT

INFRINGEMENT MATTERS

According to 28 U.S. Code 1338:

(a) The district courts shall have original jurisdiction of any civil action arising
under any Act of Congress relating to patents, plant variety protection, copyrights
and trademarks. No State court shall have jurisdiction over any claim for relief
arising under any Act of Congress relating to patents, plant variety protection, or
copyrights. For purposes of this subsection, the term State includes any State of
the United States, the District of Columbia, the Commonwealth of Puerto Rico, the
United States Virgin Islands, American Samoa, Guam, and the Northern Mariana
Islands.

(b) The district courts shall have original jurisdiction of any civil action asserting a
claim of unfair competition when joined with a substantial and related claim under
the copyright, patent, plant variety protection or trademark laws.
(c) Subsections (a) and (b) apply to exclusive rights in mask works under chapter 9
of title 17, and to exclusive rights in designs under chapter 13 of title 17, to the same
extent as such subsections apply to copyrights.

Clearly, Plaintiff cannot ask this Court to alter or amend its verdict in order to assess

damages according to US Copyright Law.

IV. CONCLUSION

THEREFORE, since Plaintiff is seeking damages for breach of contract, his motion to

alter or amend the Courts judgment should be DENIED as there are no monetary damages

available to him under Maryland Law, and his suggested injunction should be DENIED since

there is no verified evidence that Defendant violated the Settlement Agreement.

MOREOVER, since Plaintiff really seeks damages for alleged infringement of his

copyrights, his motion should be DENIED as the State Courts do not have jurisdiction over

federal copyright law.

V. PRAYER FOR RELIEF

1. Defendant Schmalfeldt asks that the Motion be DENIED for the reasons stated above.

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Respectfully submitted

Dated this 5th Day of September, 2017 __________________________________

William M. Schmalfeldt, Sr.

2600 S. Ocean Blvd
Myrtle Beach, SC 29577
(843) 429-0581
truthatory@outlook.com

CERTIFICATE OF SERVICE

I Certify that on the 5th day of September, 2017, I served copies of the above on the

following persons. William John Joseph Hoge by FIRST CLASS MAIL and/or hand-delivered,

Brett and Tetyana Kimberlin, by e-mail.

_____________________________
William M. Schmalfeldt, Sr., Pro Se

AFFIDAVIT

I, William M. Schmalfeldt, Sr., solemnly affirm under the penalties of perjury that the

contents of the foregoing paper are true to the best of my knowledge, information, and belief.

Date: Sept. 5, 2017 __________________________

William M. Schmalfeldt, Sr. Pro Se

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September 5, 2017

Clerk of Courts
Carroll County Circuit Court
55 N. Court St.
Westminster. MD 21157

RE: Case No. 06-C-16-070789

Please be advised that my address has changed to 2600 S. Ocean Blvd., #105, Myrtle Beach. SC
29577. Thank you.

William M. Schmalfeldt, Sr.

cc: WJJ Hoge

Brett and Tetyana Kimberlin