Woop, woop, woop.
We have an explanation from Bill Schmalfeldt as to why he is not a plagiarist1.
This is from a filing by Mr. Schmalfeldt that showed up on PACER today in his litigation with Sarah Palmer and Eric Johnson. It is entitled “Plaintiff’s Response to Defendants’ Joint Opposition to File a Supplement to the Motion to Disqualify Counsel.” It appears, as you can see, in a footnote at the bottom of page 3 of the filing. The main body text footnoted is this- an extended quote from John Hoge’s “Hogewash” blog.
What? Did I read that right? Again
…Mr. Walker should caution Mr. Hoge about throwing around phrases like “copyright theft” and plagiarism when discussing legal documents.
I’m going to leave “copyright theft” alone for now- we’ll certainly return to that issue in a future post- but plagiarism? Well-
Isn’t it self evident that plagiarism has occurred when someone takes an entire paragraph out of a copyrighted document and inserts it into a court filing without attribution or any signal whatsoever that the paragraph was written by another person? Does anyone reading this think that Mr. Schmalfeldt would have even provided this limp explanation if he thought that he had gotten away with
attorney Tranen’s work? I don’t think that any reasonable person could disagree with the conclusion that
Let’s go visit the
for a few moments while we take a look at his explanation.
Plaintiff acknowledges he forgot to cite Mr. Tranen’s essay.
OK… so what? How is this sentence an explanation of anything? Let’s put “I forgot” in, as Bill likes to say, context. He accuses someone of plagiarism- of stealing content- most every day lately2. Does anyone think that a guy with such a laser beam-like focus on other people’s alleged plagiarism would overlook a big whopping instance of it when it was done by himself? Not likely, right?
And don’t most real explanations of wrongdoing- even inadvertent wrongdoing as Mr. Schmalfeldt would like you to believe- come with an expression of regret? Something like “I acknowledge I forgot to cite Mr. Tranen’s work and regret the error.”? Shouldn’t he do something in his explanation to correct the impression that what was in fact attorney Tranen’s intellectual property somehow sprang fully-formed from Bill Schmalfeldt’s mighty mind3?
And a good explanation ought to indicate the steps that the malfeasor will take to correct the situation. Something like, “I am notifying the court that I am withdrawing the filing in order to correct my error and will resubmit it once that is done.” Or how about filing a notice of erratum with corrected replacement pages bearing the proper recognition of attorney Tranen’s work? But Bill’s explanation will have none of any of that. Five-year olds tell people “they forgot” and leave it at that. Adults, and especially adults who are attempting to play ball in the big leagues, do not. Prediction: Bill Schmalfeldt’s failure to address these things in his explanation is going to come back and bite him in his big dimply… well, you know where that’s headed.
Let’s see if the second sentence in the explanation makes things any better.
However, according to Peter Ben Friedman in “What is a Judicial Author”, “Lawyers and Judges routinely cut and paste without attribution.” (see 62 Mercer L. Rev. 519)
Oh, I see. So none of this is really an explanation at all. It’s just a big fuck you. I really have to wonder how attorney Tranen and Affinity will feel about hearing that.
Bill Schmalfeldt is not a lawyer. He is not a judge. And, whoever the hell “Peter Ben Friedman” is, I really didn’t ever run across any good lawyers over the course of 25 years of practice who took such a cavalier attitude. I know I didn’t do it. There are likely to be less than honest lawyers (and maybe even judges) out there who do such things, but that certainly doesn’t lend any validity to the practice. If Bill is saying, “Well, if some dirtball lawyer does it, I can do it too.”, what does that make him?
1 Of course, that explanation didn’t happen here and it wasn’t made within the timeframe we set. So that horse, Bill, is out of the barn, in that the letters to attorney Tranen and Affinity are sent. I do note that, even if you had posted what you said in the footnote here prior to the deadline the letters would have gone anyway for the reasons stated in the main post above.
2 Bill tweeted today that his “Digiprove Copyright Proof plugin” had captured numerous right-clickers in the act over at his website.
If I was a real bastard I’d use Bill’s “now I wouldn’t do this ever but what if someone…” little device and muse: What if lots and lots of people decided to go to Bill Schmalfeldt’s blog and spend a little time every day right-clicking on it? But I would never do such a terrible thing, of course, and wouldn’t in a million years encourage anyone else to, but what if people did that? No… that would be wrong.
3 Not that anyone familiar with Mr.Schmalfeldt’s batshit crazy screed style of legal writing would have believed that. As the person who first noticed the plagiarism of attorney Tranen’s work, I have to say that it stuck out in Bill’s filing like a lotus flower floating in a sewage lagoon.