William John Joseph Hoge, IN THE

Plaintiff, CIRCUIT COURT FOR CARROLL COUNTY

MARYLAND
v.
Case No. 06-C-16-070789
Brett Kimberlin, et al.,
Defendants.

PLAINTIFFS MOTION TO ALTER OR AMEND JUDGMENT AS TO COUNT XII

COMES NOW William John Joseph Hoge and files this Motion to Alter or

Amend Judgment as to the Courts findings, verdict, and judgment as to Count XII

pursuant to Rule 2-534. Mr. Hoge states as follows:

The Court stated while delivering its verdict that Mr. Hoge had failed to

allege damages as to Count XII. It expressed concern that awarding money

damages based on the Copyright Act would be punitive in nature. It also did not

grant injunctive relief because it found that Mr. Hoge has failed to allege damages.

Mr. Hoge did allege damages. A copyright holder suffers irreparable harm as

a result of the very nature of unauthorized publication of copyrighted material

because it deprive[s] the copyright holder of intangible exclusive rights,1 and the

Complaint states: Mr. Hoge suffered damages in loss of control of his copyrighted

works. Complaint, 86. Further, there was evidence before the Court that

Schmalfeldt did infringe Mr. Hoges copyrights by publishing without permission.

1Christopher Phelps & Associates, LLC v. Galloway, 492 F.3d 532, 544 (4th Cir.
2007).
Therefore, Mr. Hoge suffered damage in the form of irreparable harm from

Schmalfeldts unauthorized use of his copyrighted works.

The Court should not view an award of money damages based on the

amounts prescribed in the Copyright Act as punitive. Respectfully, the Court has

misapprehended the law. The damages available under 17. U.S.C. 504(c) are not

punitive damages but are more akin to liquidated damages set by statute. As in

other situations in which liquidated damages are appropriate, it is often the case

that damages resulting from the loss of control of ones copyrighted work can be

difficult to quantify. The statutory damages allowed under 504

are a statutorily-created alternative to the recovery of actual

damages. Because it can be difficult for a copyright holder to
quantify the harm done to him by the act of copying, Congress allows
plaintiffs to elect between receiving actual damages (including profits
earned by the infringer) or statutory damages. 17 U.S.C. 504.

Sparaco v. Lawler, Matusky, Skelly Engineers LLP, 313 F.Supp.2d 247, 253

(S.D.N.Y., 2004), footnote omitted. Indeed, in Sparaco the damages provided under

504 were considered to be so similar to actual contract damages that the plaintiff

was not allowed recovery under 504 because he had previously received

compensation under a contract theory and further recovery would have amounted to

double recovery for the same harm. Therefore, Mr. Hoge asks for money damages

as would be allowed under 17 U.S.C 504(c). Such damages may range from a

minimum of $200 to a maximum of $150,000 per infringement depending on a

courts discretion and whether the infringement was willful. Such an award would

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not be punitive but should be seen as liquidated damages in for the irreparable

harm Mr. Hoge has suffered.

Finally, The Court should also grant the injunctive relief Mr. Hoge seeks

because further breaches of the contract will expose Mr. Hoge to further irreparable

harm. Permanent injunctive relief requiring William Schmalfeldt to obey the terms

of the Settlement Agreement is just and proper as a matter of equity and should be

granted even if money damages are not awarded.

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 2 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,

and judgment as to Count XII and

i.) to find that Mr. Hoge properly pleaded damages in his Count XII

by pleading of loss of control of his copyrights,

ii.) to award Mr. Hoge damages from Schmalfeldt of not less than

$200 per infringement for each act of infringement alleged in Count XII,

2 Simms v. State, 409 Md. 722, 976 A.2d 1012, 1018 (2009).

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 iii.) to enjoin Schmalfeldt from further publication of Mr. Hoges

copyrighted works without prior written permission, and

iv.) to grant such other relief as the Court may find just and proper.

Date: 28 August, 2017 Respectfully submitted,

William John Joseph Hoge, pro se

20 Ridge Road
Westminster, Maryland 21157
(410) 596-2854
himself@wjjhoge.com

CERTIFICATE OF SERVICE

I certify that on the 28th day of August, 2017, I served copies of the foregoing
on the following persons:

William M. Schmalfeldt by First Class U. S. Mail to 220 Whitty Drive, Myrtle

Beach, South Carolina 29579

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

William John Joseph Hoge