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Opposition to the Motion to Alter or Amend Judgment as to Count XII. Mr. Hoge
states as follows:
The Court properly found that the Settlement Agreement referenced in Count
XII of Mr. Hoges Complaint is a valid contract and that Schmalfeldt breached that
contract.
Mr. Hoges Motion to Amend does not ask the Court to enforce any provisions
of the federal Copyright Act. Rather, it asks the Court to amend its finding that
Mr. Hoge failed to plead damages in Count XII of his Complaint. Moreover,
Taylor v. NationsBank, 365 Md. 166, 776 A.2d 645, 651 (2001), citations omitted. In
fact, Mr. Hoge did plead that he was damaged by loss of control of his copyrighted
works as a result of Schmalfedts infringing publications (Complaint, 86), and as a
Christopher Phelps & Associates, LLC v. Galloway, 492 F.3d 532, 544 (4th Cir.
2007). Schmalfeldts admissions in his Answer prove that Mr. Hoge suffered actual
damages in the form of the irreparable harm resulting from infringement of his
copyrights.
Schmalfeldts Opposition fails to address the fact that Mr. Hoge did plead and
interpretation of Mr. Hoges Motion to have a straw man to attack, but none of the
case or statute law Schmalfeldt cites is apposite to this case. Further, none of the
facts he tries to introduce in his Opposition relate to whether Mr. Hoge was
damaged. Thus, Schmalfledt has offered no reason why the Courts should not grant
Given a finding that Mr. Hoge was damaged, the Court is faced with the
to Amend suggests that the Court look to the range of statutory damages set by
Congress in 17 U.S.C. 504 for guidance in the matter. Congress did not intend
compensating a copyright holder for his loss of control of his copyright. Mr. Hoge
has not asked the Court for an award of punitive damages against Schmalfeldt. He
has asked the Court to award compensation for the irreparable harm he has
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suffered in an amount that would be consistent with the recovery allowed under
federal law.
Agreement, it is clear that Mr. Hoge is entitled to compensationif not for breach of
contract, then for copyright infringement. This Court should award damages for
so that Mr. Hoge does not have to seek damages in a federal court.
Even after this Court found that the Settlement Agreement was a valid
contract and that Schmalfeldt had breached it, Schmalfeldt has continued to
publish infringing copies of Mr. Hoges copyrighted works, and Mr. Hoge continues
to suffer irreparable harm. Thus, the Court should grant the injunctive relief Mr.
Hoge seeks.
CONCLUSION
Mr. Hoge alleged, and the Court found, that the Settlement Agreement
referenced in Count XII was a valid contract and that Schmalfledt had breached its
terms. Because pro se pleadings should be liberally construed 1 and considering that
Mr. Hoge did allege damages in the form of loss of control of his copyrights, the
Court should reconsider and find that damages were properly pleaded as to Count
XII.
WHEREFORE, Mr. Hoge asks the Court to alter or amend its findings, verdict,
1 Simms v. State, 409 Md. 722, 976 A.2d 1012, 1018 (2009).
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i.) to find that Mr. Hoge properly pleaded and proved damages in
ii.) to award Mr. Hoge damages from Schmalfeldt of not less than
$200 per infringement for each act of infringement alleged in Count XII,
iv.) to grant such other relief as the Court may find just and proper.
CERTIFICATE OF SERVICE
I certify that on the 12th day of September, 2017, I served copies of the
foregoing on the following persons:
Brett Kimberlin by First Class U. S. Mail to 8100 Beech Tree Road, Bethesda,
Maryland 20817
Tetyana Kimberlin by First Class U. S. Mail to 8100 Beech Tree Road, Bethesda,
Maryland 20817
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AFFIDAVIT
I, William John Joseph Hoge, 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.