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Akbar's DMCA Counter Notice to Schmalfeldt

Akbar's DMCA Counter Notice to Schmalfeldt

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Published by Breitbart Unmasked
Akbar's DMCA Counter Notice to Schmalfeldt
Akbar's DMCA Counter Notice to Schmalfeldt

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Published by: Breitbart Unmasked on Mar 07, 2014
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05/11/2015

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Director of Compliance Friday, July 26, 2013ZippyKid, Inc112 E. Pecan St, Suite 1100San Antonio, Texas 78205support@zippykid.comRESPONSE TO ERRONEOUS DMCA FILED WITH ZIPPYKID BY BILL SCHMALFELDT AGAINST PUNDITSYNDICATION’S THEOTHERMCCAIN.COMPundit Syndication LLC operates a number of blogs and news websites. As the Publisher, it is myresponsibility to from time to time defend rights guaranteed to our organization by the First Amendment tothe Constitution of the United States. I have a good faith belief that this material was removed or disabled inerror as a result of mistake or misidentification of the material.I also serve as President of the National Bloggers Club, Inc. We are an organization of over 600 bloggersaffiliated with more than 1000 blogs, representing tens of millions of pageviews a month. It is my duty toprotect bloggers of every size who blog about current events, political races, and policies that affect thepublic. Our non-profit enjoys relationships and standing on related legislative battles with more than 85Members of the United States Congress. Our events are sponsored by organizations such as Facebook andMicrosoft to notable officials such as the Speaker of the House of Representatives to House CommitteeChairmen and United States Senators. A free press is required to keep a free people free.From time to time this advocacy attracts cyberbullies and law violators. William “Bill” Schmalfeldt is one of these. His aliases include: “Liberal Grouch, Dead Breitbart, Patriot Ombudsman, Bill Matthews” and a slewof others. Because of his unlawful and unethical behavior he has been banned from popular websites suchas DailyKos.com and Examiner.com. He is currently under investigation and the subject of a peace order against another blogger, John Hoge of Hogewash.com. In fact, most recently, Schmalfeldt filed a falseDMCA petition with Automattic’s Wordpress.com to remove some of Hoge’s content.This spurious DMCA compliant appears to be a continuation of Mr. Schlamfeldt’s pattern of harassment thathas been the subject of legal complaints by many others. A Maryland Circuit Court judge has ruled againstMr. Schmalfeldt on the matter of his harassment of bloggers.In the past, he was even banned from Twitter for a death threat against me.Robert Stacy McCain is an award-winning journalist of over 26 years, a published author, and a former editor of the Washington Times. His blogging has paved the way for other bloggers who blog about conservativepolitics, thusly his peers have rewarded him. Most recently, he won “Best Investigative Piece for 2012”during Blog Bash 2013. He currently serves as the Editor-in-Chief of ViralRead.com and the lead columnistfor TheOtherMcCain.comBill Schmalfeldt has produced no record or copyright or purchase thereof. Images in his likeness, images of himself uploaded to social networks do not exclusively belong to him and are not covered by the DMCA.This is an attempt at Mr. Schmalfeldt’s regular lawfare scheme.Furthermore, if there was dispute about the copyright, ZippyKid has no liability as the image referenced inthe post is not, nor has it even been hosted on ZippyKid servers. You can find the image here. Without legalstanding by Mr. Schmalfeldt, ZippyKid has no grounds to recognize this illegitimate DMCA.
 
Lastly, screenshots of YouTube videos are covered under Google’s YouTube.com’s Terms of Service for allusers, but especially for news gathering organizations (Sections 5.A, 6.C., 6.D., 6.E). This constitutes “fair use” under the law. Fair use is an applicable objection according to the DMCA.With a bit of twisted irony, Mr. Schmalfeldt references an image in a blog in his DMCA petition that is andcannot be the subject of his request to ZippyKid, calling it an “abomination.” This is an attempt to appear normal. The man is the furtherest thing from it with images and videos he has produced including, butcertainly not limited to, Sarah Palin with a bullet in her head -- blood coming out, my face photoshopped onhalf a dozen pornonogic images (this being the most tame of them), and a video wherein he created animage and voiceover fantasizing about my brutal murder. The man is ill and suffers from spouts of mentalinstability. Retired and living off of government assistance, this is his hobby not his work; to sadisticlycyberbully people’s opinions he disagrees with edging for internet fame only to discover rejection.The image that Mr. Schmalfeldt claims was taken by his wife and is “dishonestly cropped” is yet another lie.But the substance is of no matter, the image is not and has never been hosted on ZippyKid’s servers. Mr.McCain’s journalism requires the embedding and sourcing of material that is not always his own. This is allproperly cited and acquired. Courts in the United States have now unanimously ruled that a digital proprietor cannot be held responsible for content it does not produce (ie. comments, embeds, et al). And even if Mr.Schmalfeldt had standing, he fails the “fair use” and Terms of Service tests -- again. This image wasuploaded and widely distributed on Twitter.com. Twitter’s Terms of Services (Sections 4 and 5) allowsanyone, but especially news organizations to capture and cite material uploaded by its users. Once more,even if all of this wasn’t the case, Mr. Schmalfeldt cannot produce a copyright to the work he references.Pursuant to 17 U.S.C. Section 512, I’m listing the webpages Mr. Schmalfeldt listed as having images thatviolated his copyright:http://theothermccain.com/2013/07/22/epic-new-failure-dailykos-re-banishes-deranged-cyberstalker-http://theothermccain.com/2013/07/19/deranged-cyberstalker-bill-schmalfeldt-continues-his-obsessihttp://theothermccain.com/2013/07/12/deranged-cyberstalker-bill-schmalfeldt-inspires-epic-downfalhttp://theothermccain.com/2013/06/16/imaginary-rights-you-dont-have-you-sad-and-disgusting-troll-http://theothermccain.com/2013/06/14/peace-order-against-bill-schmalfeldt-a-defeat-for-the-troll-http://theothermccain.com/2013/04/07/harassment-is-not-journalism/http://theothermccain.com/2013/03/09/you-stay-classy-bill-schmalfeldt/http://theothermccain.com/2013/02/21/and-now-helpless-victim-bill-schmalfeldt-heroically-suffers-glo
 
rious-martyrdom/http://theothermccain.com/2013/02/20/dishonest-bill-schmalfeldt-got-banned-from-daily-kos-for-anal-rape-humor/http://theothermccain.com/2013/02/19/beware-the-ides-of-march-bill-schmalfeldt-threatens-lee-stranahan/http://theothermccain.com/2013/02/14/deranged-cyberstalker-bill-schmalfeldt-charged-with-deranged-cyberstalking/http://theothermccain.com/2013/02/01/news-flash-crazy-people-are-dangerous/http://theothermccain.com/2012/11/24/pray-for-ten-thousand-angels/On several levels, this is a disgusting act by someone who claims to be a public figure to suppress theillegal and unethical extents to which he has gone to make miserable the lives of dozens of bloggers andtheir families.Mr. Schmalfeldt having no standing (not to even mention copyright) and ZippyKid having never hosted thedisputed material, there should be no reasons for interruption in service. We have submitted this letter ingood faith, though it may be hard to call it a “counter notice” because Mr. Schmalfeldt petitioned an entitywhich is not serving the file to the digital world.Beyond being Publisher of Pundit Syndication LLC, I will use my perch at the National Bloggers Club, toexpose cyberbullies and their enablers. I am confident ZippyKid will recognize that an illegitimate DMCAwas received and consider future attempts by Mr. Schmalfeldt and his allies as dead-on-arrival.I apologize for any inconvenience this drama may have caused your company. We’re happy with you as ahost and your pricing model! God-willing, Mr. Schmalfeldt will take me to court where he can answer for hisabuse of the DMCA and now perjury.I, Ali A. Akbar, submit this document in good faith, under penalty of perjury, believing that the petitioner (Mr.Schmalfeldt) is falsely asserting copyright over material to which he he cannot bar news agencies fromusing and to an entity that has no jurisdiction on the matter as it is not hosted on its servers. Furthermore,unless it is legally required of you, as your customer I am asking you to cease all contact with Mr.Schmalfeldt and to not share with him any details or contents that are not deemed absolutely necessary.I also consent to service of process by the person providing notification under Section 512(c)(1)(C) or thatperson’s agent. However, by this letter, I do not waive any other rights, including the ability to pursue anaction for the removal or disabling of access to this material, if wrongful.I thank ZippyKid for the time allotted to research and file a proper response. Note that we’re complying withSection 512(g)(3), even when it is our assertion that it doesn’t apply to this false DMCA notice filed. A copyhas been mailed to you for your records. If you have any questions about this letter, please do not hesitateto contact me. I know that ZippyKid will continue to be a place safe for bloggers, citizen-journalists, and journalists alike.

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