Oh, well then- if Peter Ben Friedman says it’s OK…


Woop, woop, woop.

ezgif.com-crop

We have an explanation from Bill Schmalfeldt as to why he is not a plagiarist1.

explanation 800px

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.

Hoge Quote plagiarize

WhatDid 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-

Plagiarism define

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

plagiarizing

attorney Tranen’s work?  I don’t think that any reasonable person could disagree with the conclusion that

Bill

Schmalfeldt

is a

plagiarist.

Let’s go visit the

BiLLSHiT ZONE 600x602

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?

image

Yep.

David Edgren
_______________________________

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.

Right click tweet

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.

Heh.

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.

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34 Responses to Oh, well then- if Peter Ben Friedman says it’s OK…

  1. Joe Nobody says:

    And here I was thinking that he’d call your notice “extortion” and scream about filing charges… who knew he actually would NOT do the most self-destructive thing for once?

    Liked by 4 people

  2. Can I collect on the my prediction? Because I’d like to say I was damned close.

    Liked by 4 people

  3. one handle and stick to it says:

    And yet, a quick google-search shows various litigators getting sanctioned for plagiarizing in paperwork. Something about the obligation for a litigant not to commit “misrepresentation” (one form of which, natch, is PLAGIARISM).
    http://www.abajournal.com/news/article/cut-and-paste_brief_brings_sanction_for_lindsay_lohans_lawyer_in_tossed_sui/

    Liked by 4 people

  4. Does his plug-in tell him whether stuff was copied, or just opened up in another tab?

    The man has stolen a photo of mine, used it to try to make money for himself, he’s stolen someone else’s intellectual property and used it without even attribution in a legal filing, but God forbid anyone try to open one of his links in a new browser tab.

    I hope he has a bad day on Thursday.

    Liked by 8 people

    • This Other Latin F*cker says:

      The plug in is triggered when anyone right clicks. You don’t have to do anything else, just right click. Classic example of garbage in, garbage out. The plug in has no clue why you right clicked. Bill interpreting that as “attempted theft” is about as ignorant as you can get and still be breathing. But we’ve come to expect that level of stupidity from Bill “Stolen Valor” Schmalfeldt.

      Liked by 3 people

    • one handle and stick to it says:

      Typical sociopath Schmalfeldt: “Rules for THEE, but not for ME!”

      I have a feeling that Thursday will educate Billy on the folly of his socipathic habits.

      Liked by 2 people

  5. Paul Krendler says:

    Now, when you say “that would be wrong” above…it needs a little additional context, don’t you agree?

    Because there are varying degrees of “WRONG.”

    There’s “it’s only wrong if you get caught” which is a favorite of Bill Schmalfeldt.
    There’s “even if you get caught, it’s not wrong unless there are actual consequences” which is another favorite of Bill Schmalfeldt.
    There’s the top of Bill’s list, “It’s not wrong if I do it, but if you do it back to me, then it’s wrong.” Oddly enough, this definition of wrong is not only popular with Bill Schmalfeldt, but it is also very popular with children not yet out of diapers. But I repeat myself.
    Finally, there is “that is wrong, always and everywhere, and I should never do such a thing under any conceivable circumstance…unless my name is Bill Schmalfeldt.”

    So which “wrong” do you mean?

    Liked by 5 people

    • D. Edgren says:

      Umm… all of the above?

      Liked by 5 people

    • one handle and stick to it says:

      Well there’s FOUR of the Ten Commandments according to Bill Schmalfeldt. lol. I wonder what the other six would be? Here are three inspired by the lolsuit:
      5) “It’s wrong unless I can blame it on my Parkinson’s Disease for pity (though it’s wrong for you to quote my mentioning my Parkinson’s Disease–especially if it makes me look unhinged, incompetent, incontinent, demented, etc.)”
      6) “It’s only wrong if it fits the narrowest conceivable definition of “illegal” (though it’s wrong for you to notice I’m too dumb to parse legal definitions–because, hey, I’m just a lowly pro se!)”
      7) “It’s only wrong if I can’t flog the meanings of words enough to find loophole (though it’s wrong for you to point out that my meanings for words deviate from every dictionary–oh, and that they don’t remain consistent from day to day.)”

      Liked by 6 people

  6. crawford421 says:

    It would simplicity itself to write a program that simulates right-clicks his site. There are open-source tools that will do it.

    Not saying I’d do anything of the sort, just pointing it out.

    Liked by 3 people

    • MJ says:

      I foresee a “RIGHT CLICK ON BILL SCHMALFELDT’S PODCASTS DAY” happening.

      Liked by 3 people

    • one handle and stick to it says:

      That would be teh lulz. IF anyone did it, which I’m sure no one would.

      Liked by 1 person

      • Oopsie-poopsie! 😉

        Actually, most of those right-clicks are probably generated by legitimate webcrawlers, which are used by search engines (bing, Google, etc.) to get content to index.

        This is also commonly used by malicious webcrawlers, looking for exploitable pages.

        And, of course, by people, for many other reasons than “stealing content!”

        Heh.

        Liked by 1 person

  7. Rick Buchanan says:

    “I forgot”.

    Liked by 3 people

  8. Pablo says:

    “Officer, I simply forgot to pay for the footlongs you found stuffed down my pants.”

    Liked by 5 people

    • Sharky says:

      “Is that the only place they were stuffed, officer?”

      “No your Honor, but (tee hee!) there are children present. Most notably the defendant.”

      Like

  9. This Other Latin F*cker says:

    The paper that Bill links to does not contain the quote that he says it does. Oopsie Poopsie! http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1538633

    Do a search for the phrase he quotes and it comes up empty. (To be fair I searched for the entire quote, and the individual words “lawyer” “Judge” “routinely” “paste” and “attribution”.)

    If you actually READ the paper it deals with how lawyers writing briefs will use other briefs filed before courts in their own to reinforce their argument. Also that judges will uses briefs filed in teh case and opinions of other courts in crafting their rulings. (I believe Aaron has said he is complimented when a judge uses his arguments in a favorable opinion).

    It does NOT mention a DUMBFUCK lifting an article and plopping it down in his own brief and calling it his own. I would hope that it would be pointed out that Bill has perjured himself in his lame ass explanation on why he stole someone elses work product.

    Liked by 7 people

    • D. Edgren says:

      TOLF: Great points.

      This does not mean what Bill thinks that it means:

      However, it is not simply the collaborative nature of the writing process in legal practice that makes it difficult to identify the author of a legal brief. There is no effective legal claim to the rights of a traditional author in the writing set forth in a brief, and legal practice reflects as much. Lawyers writing briefs borrow wholesale from previously produced legal writing. Lawyers literally cut and paste from other lawyers’ briefs without any attribution to the authors of those briefs. It is, of course, in the interest of lawyers in the same firm to share writing in this way, but the sources of wholesale borrowing are not limited to the writing of allies. Briefs are public documents, n26 and no [*529] one has ever successfully claimed copyright infringement for unacknowledged use of someone else’s legal argument in a writing submitted to or written by a court.

      That’s from the bottom of page five and the top of page six of the published article. The author is clearly talking about argument and points made in other legal briefs filed with the courts as being the source material. Attorney Tranen’s article, which is expressly copyrighted, is not such a document. It is, rather, more akin to what my legal writing teacher in law school would have called a “learned treatise.” Bill’s lack of understanding of these points point out all the more why lay people don’t usually do a good job trying to “practice” law. All he has done here is dig himself in a bit deeper.

      I doubt that he was aware of the Friedman article, either, until he had to frantically search for something that appeared to justify what he had done. Oh Bill, you big old plagiarist you! Nice try. No cigar.

      Liked by 6 people

    • one handle and stick to it says:

      LOL at Billy being able to understand anything with semantic content beyond a spank mag.

      Liked by 4 people

  10. Gustavo Fring says:

    sure, but did he right-click on Tranen’s article at any point? that’s far worse than plagiarism.

    Liked by 8 people

  11. D. Edgren says:

    I really don’t care how Bill Schmalfeldt spends his money, whether on DigiProve or on ten dollar hookers, but it seems to me that, since each operation to the best of my knowledge is entirely client-side, a press of the [prt sc] key on a PC or the taking of an iPad or iPhone screen print while his blog is up isn’t going to get captured. Again, mind, not encouraging anyone to test this out in practice- just academic interest on my part.

    Liked by 2 people

    • Russ says:

      Ten dollars…? That’s a bit “high rent” for him, isn’t it?

      Surely there must be $5 trannies out there somewhere?

      Liked by 2 people

    • There are better ways, albeit not simpler, to capture a page and leave no trace…

      Clarke’s Third Law:

      “Any sufficiently advanced technology is indistinguishable from magic.”

      Which, of course, is all relative to the observer’s level of sophistication.

      Cousin Bill is not at all sophisticated, and uses the available technology without understanding, which leaves him open to all sorts of tricksy pranks by zombies and lickspittles…

      Liked by 3 people

  12. agiledog says:

    Meh. Just another example of Bill Schmalfeldt’s “Okay for me, but not for thee.” rules. He was particularly upset with me when I, in a court filing, used a photo that he claimed he had copyrighted. And yet here he is, using an article that is copyrighted, in a court filing.

    Bill has the strongest, most stringent double standards of anyone I have ever encountered.

    Liked by 4 people

  13. one handle and stick to it says:

    UPDATE @ Right-Click Dept.: http://archive.is/68gm9
    Oh, my! Who would do such a thing! How terrible! *chortle*

    Liked by 1 person

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