WILLIAM JOHN JOSEPH HOGE, Plaintiff,
v.
WILLIAM M. SCHMALFELDT, Defendant.
Civil Action No. ELH-14-1683
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
Date: July 1, 2014
On May 27, 2014, William John Joseph Hoge, plaintiff, filed suit against William M. Schmalfeldt, defendant, under the Copyright Act, 17 U.S.C. § 101 et seq., and the Digital Millennium Copyright Act ("DMCA"), 17 U.S.C. § 512. ECF 1. Both plaintiff and defendant are self-represented. Plaintiff has filed a motion for a preliminary injunction (the "Motion," ECF 13), dated June 12, 2014. On June 26, 2014, the Court held a hearing in open court on plaintiff's Motion. See ECF 26.1 As reflected in the parties' submissions and arguments presented at the hearing, this suit is only the latest chapter in a nasty, ongoing feud between the parties, largely waged on the Internet, but which has found its way into federal court.
In response to plaintiff's original Complaint, ECF 1, defendant filed an answer, along with counterclaims against plaintiff and what defendant characterized as counterclaims against two other individuals: Chris Heather and an individual identified by the pseudonym "Paul
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Krendler." ECF 5.2 Defendant subsequently amended his counterclaims and dismissed his counterclaim against Heather. ECF 8 (amended answer and counterclaims) at 7. The amended counterclaims allege "Malicious Prosecution and Abuse of Process"; "Defamation and Libel"; and "Harassment and Intentional Infliction of Emotional Distress." See ECF 8 at 5-13. Plaintiff has moved to dismiss defendant's counterclaims, for lack of jurisdiction and for failure to state a claim upon which relief may be granted. ECF 10.
On June 11, 2014, plaintiff filed an Amended Complaint ("Am. Compl.," ECF 9), containing 37 counts. Defendant has moved to dismiss the Amended Complaint. ECF 15. But, he also filed an answer to the Amended Complaint. ECF 18.
Although several motions are pending, this Memorandum Opinion will only address plaintiff's motion for a preliminary injunction. The Motion is supported by four exhibits. Defendant has filed an opposition ("Opposition" or "Opp.," ECF 19), with exhibits marked A through Z. Plaintiff has replied ("Reply," ECF 24), attaching one exhibit. And, at the hearing held on June 26, 2014, both parties introduced exhibits in support of their contentions. See ECF 27 (list of plaintiff's hearing exhibits) and ECF 28 (list of defendant's hearing exhibits).3 For the reasons that follow, I will deny plaintiff's Motion.
Plaintiff, a "semi-retired engineer," alleges that he is the publisher of Hogewash!, an Internet website. Am. Compl. ¶ 7. Defendant is identified in the Amended Complaint as a
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"retired writer who has published several different Internet websites and several books," id. ¶ 8, which consist in part of electronic-format "ebooks." One of defendant's websites is found at patriot-ombudsman.com. Id. ¶ 31.
The Hogewash! website is a blog, described by plaintiff as "the Internet equivalent of a newspaper column," in which he provides "a running commentary on subjects of interest to him." Am. Compl. ¶ 9. See, e.g., United States v. Cassidy, 814 F. Supp. 2d 574, 576 (D. Md. 2011) ("A 'Blog' is a shorthand term for a 'web log,' i.e. a log or web page maintained on the World Wide Web. A Blog is like a bulletin board and contains whatever material its sponsor decides to post."). Readers of Hogewash! may submit comments that are posted on plaintiff's website. Am. Compl. ¶ 10. However, plaintiff "screen[s] all comments for suitability," and thus only a portion of the comments submitted by his readers appear on Hogewash!. Id. Plaintiff alleges: "While the ownership of each comment remains with its author, the Hogewash! Terms of Service require that commenters grant Mr. Hoge a royalty-free license for the use of their comments as a part of his copyrighted work." Id. The Hogewash! Terms of Service state, in part, Pla. Hrg. Exh. 8 at 1:
Any comment posted to the site remains the property of the originator of the comment who is solely responsible for the content of his comment. Posting or attempting to post a comment to the site grants a royalty-free license to Hogewash! and its owner to reproduce the comment or any portion of it in any medium without limitation to the place or time of use or publication . . . .
Hoge also alleges that on April 30, 2014, he purchased from a pseudonymous writer, identified as "Paul Krendler," "the world book and ebook rights" to a particular blog post that had been published at the website thinkingmanszombie.wordpress.com. Am. Compl. ¶ 11 (footnote omitted).
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According to plaintiff, "[a]pplications for certificates of registration have been submitted to the Copyright Office by Mr. Hoge and 'Paul Krendler' for all works covered by the instant lawsuit in conformance with this Court's precedent." Am. Compl. ¶ 12. At the hearing on the Motion, plaintiff offered an exhibit, introduced without objection, in support of his claim that he submitted copyright applications in June 2014 covering material posted on Hogewash! during March, April, and May of 2014, as well as the blog post that plaintiff purchased from "Krendler." See Pla. Hrg. Exh. 1.
Plaintiff's central allegation is that defendant has infringed plaintiff's copyrights because he "has repeatedly taken all or essentially all of complete blog posts written by Mr. Hoge and republished them without permission." Am. Compl. ¶ 13. Publication has allegedly occurred "via books and ebooks, via various Internet websites operated by Defendant, and via the social media service Twitter." Id.
Count I of the Amended Complaint pertains to an ebook published by defendant on or about April 18, 2014, titled My Slow, Journalistic Death. Am. Compl. ¶ 19. Plaintiff alleges that Chapter 13 of that ebook contains a blog post that appeared on plaintiff's Hogewash! website on April 14, 2014. Id. ¶¶ 18-19. According to plaintiff, both the Amazon and Smashwords websites, where defendant allegedly sold My Slow, Journalistic Death, promptly removed the ebook from their catalogs at plaintiff's request. Id. ¶ 20. Specifically, Amazon removed the ebook on April 21, 2014, one day after receiving plaintiff's complaint; Smashwords removed the ebook on April 22, 2014, one day after plaintiff had advised it of the allegedly infringing content. Id.
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A copy of the ebook My Slow, Journalistic Death, which plaintiff appears to have printed for purposes of the hearing, was introduced as an exhibit. Pla. Hrg. Exh. 3. The exhibit indicates that Chapter 13 begins with approximately a dozen introductory lines, written by defendant. Id. at 2. The next portion is a brief post from Hogewash!, written by plaintiff, titled "Are You Pondering What I'm Pondering?," and which reads: "Troz! Brain . . . how do you have a useful conversation with someone who's written more books than he's read?" Id. Defendant then inserts three more sentences of his own commentary. The subsequent portion consists of dozens of comments, also taken from Hogewash!, but which were written by various readers, in response to Hoge's "Are You Pondering What I'm Pondering?" posting. See id. at 3-24. Notably, several comments appear to quote brief Twitter messages written by defendant. See, e.g., id. at 7, 15, 16, 17, 18. The end of Chapter 13 contains approximately two dozen lines of further commentary from defendant. Id. at 24-25. See also Pla. Hrg. Exh. 2 (copy of original "Are You Pondering What I'm Pondering?" posting from Hogewash!).
In Count II, plaintiff alleges that, on or about April 22, 2014, through Lulu, a print-to-order service, defendant sold a book titled "Brain Dead," which contained the same blog post referenced in Count I. Am. Compl. ¶ 23. Plaintiff asserts that, "[o]n information and belief," a third party made a complaint to Lulu on or about April 22, 2014, "concerning infringing material in Brain Dead." Id. ¶ 24. Upon receiving that complaint, Lulu removed Brain Dead from its catalog on April 22, 2014. Id.
At the hearing, plaintiff displayed a hard copy of Brain Dead that he had purchased. Plaintiff also introduced a photocopy of several pages from Chapter 13. See Pla. Hrg. Exh. 4. Like My Slow, Journalistic Death, Chapter 13 contains an introduction written by defendant,
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followed by plaintiff's brief blog post and comments written by plaintiff's readers that were included on Hogewash!. See id.
Count III relates to Intentional Infliction, a book that defendant allegedly made available online, on or about April 23, 2014, through Amazon's CreateSpace publishing service. Am. Compl. ¶ 27. The "bulk of the first chapter" of Intentional Infliction allegedly contains "a reproduction of approximately 80 percent of [a] blog post" for which plaintiff had purchased the "world book and ebook" rights" from the pseudonymous author, "Paul Krendler." See Am. Compl. ¶ 11 (footnote omitted), ¶ 27. After purchasing the rights from "Krendler" on April 30, 2014, plaintiff informed CreateSpace of the alleged copyright infringement that same day, and Intentional Infliction was removed from CreateSpace's catalog. See Am. Compl. ¶¶ 11, 28.
Plaintiff's remaining claims fall into two groupings. The first group, containing Counts IV...
