The Oatmeal's lawyer responds to FunnyJunk | Hacker News Reader

The Oatmeal's lawyer responds to FunnyJunk

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This is an absolute domination. Not only is it far more thorough than Carreon's original statement and quite clearly dismantles every single point he makes, but it's a very reasonable and human-readable letter that contains a number of well informed possible outcomes and suggestions for courses of action that funnyjunk can take.

Honestly at this point the best think funnyjunk can do is publish an apology. This whole issue has been extremely public and has not only completely ruined funnyjunk's reputation (if they ever had one), but also made Carreon (who seemed previously to be a relatively respected lawyer) look like an absolute idiot and a scumbag for his frankly stupid and uninformed research and attempts to take down a charity initiative.

Sometimes you have to realize that you have been absolutely dominated and just drop your pride and give in before it gets any worse. This is one of those situations.

I've worked w/Venkat before. He's always this good... He's the kind of lawyer, like grellas and Douglas Choi at http://tangolaw.com that makes you excited about the artful practice of law. When done well, responses like this are like a perfect movie review - so well crafted that the review itself becomes art.

In that vein, you may also enjoy Blue Jeans Cable's response to Monster:

http://www.bluejeanscable.com/legal/mcp/index.htm

lol, its as if this came from some movie where a some new up and coming fighter unknowingly messes with a retried but still sharp ex-champion, and instantly gets his ass handed to him.

"He's always this good... ...When done well, responses like this are like a perfect movie review"

How is his win record or success with settling or preventing lawsuits? In the end isn't that the thing that matters? (I ask the question regardless of the outcome of this particular event).

i think of three skills of a good lawyer (at least the skills i value):

a) skill at writing clear, concise contracts.

b) skill at understanding acceptable tradeoffs - do we really need to spend extra legal time on X? what are the consequences if we do or don't?

c) skill at responding to and diffusing adversarial situations like this

That is, I suspect, a metric as useful as bugs fixed.

Good lawyers take tough cases you're more likely to lose. With that measure you're as likely to find someone's who cherry picks slam dunks as a genuinely good lawyer.

That is A thing that matters, but I think a lawyer that's committed to playing fair is important, even if the opposition doesn't think so.

In addition to an apology, I think FunnyJunk could turn this pr loss into a win by: making some face saving joke about the bear love thing, matching donations to charity, and explaining why they think user generated content on the web is important and the responsibility to police it isn't theirs.

I doubt that is worth $100k to FunnyJunk, though.

Almost $170k now: http://www.indiegogo.com/bearlovegood

Maybe we have different ideas of what legal brilliance is. I thought that letter was at least 4 pages too long and excessively pedantic for what it is trying to say. The letter also spends too much time reaching conclusions rather than actually applying the law. Overall, it was about the same quality (from a legal and linguistic viewpoint) as Mr. Carreon's initial letter.

Moreoever, as to Mr. Carreon: Mr. Carreon has managed to make himself look like an expert on internet law to millions of potential clients through multiple media appearances. Mr. Carreon does not work for techies; he works for people who still think computers are magical black boxes. He's almost certainly okay with techies thinking that he is an absolute idiot.

Not only that, but Mr. Carreon has managed to make his client look sympathetic in front of the same audience (i.e., any potential jurors if the case goes to trial). Techies will find the drawing of the mom seducing the bear harmless (in part because it is, relative to the stuff we see coming out of reddit and 4chan on a daily basis), but ordinary people will look at that drawing and be horribly offended.

As to the IndieGoGo interference: by raising that issue, Mr. Carreon has suggested that IndieGoGo's TOS is toothless. It places IGG in a bind: if the Oatmeal did violate the TOS, then IGG must take down the fundraiser or lose the ability to use its TOS as a sword/shield in future litigation.

Mr. Carreon's job is not to look good, it is to represent his client in potential litigation. From a litigation standpoint, he's definitely got the upper hand so far.

(I am not commenting on the merits of his client's case, because I simply do not care enough about either party based on what is currently known about them to put in the effort to analyze the current or potential claims and outcomes.)

>that letter was at least 4 pages too long and excessively pedantic for what it is trying to say.

Agreed, but a great deal of the legal system is pedantry and redefining of common words to mean something else than what the dictionary says. That's how the game is played.

I know it's not in the fun tone of these particular proceedings, but consider that this exchange illustrates a problem that does exist on the Internet: the DMCA, as it exists today, seems to create asymmetric incentives for the infringement vs. protection of copyrighted content.

The collection of copyrighted content from around the web can be "outsourced" to the users of a site like FunnyJunk or (as the letter points out) YouTube. The content is then hosted and advertising run next to it, generating revenue for the hosting company.

This basically allows companies to leverage the fans of content against the creators of that content. People upload The Oatmeal comics to FunnyJunk because they like the comics! But by doing so they are enabling the redirection of financial gain from The Oatmeal to FunnyJunk.

To fix this redirection, the owner or controller of the copyright must then file DMCA requests for each individual instance of infringement at each individual website. It's an impossible task, as The Oatmeal has pointed out repeatedly. And I don't know of any way to crowdsource it--to incent The Oatmeal fans to do it for The Oatmeal.

We're all cheering for The Oatmeal now, but tell the same story with The Pirate Bay and Sony Music, or YouTube and Viacom, and would the comments below be of the same tenor? I would guess probably not. But the structural issue is exactly the same.

I'm not advocating for any particular solution, just trying to draw parallels.

It is too easy to characterize the issue as creators vs distributors. There is something oddly different about the case at hand.

Pirate Bay/Youtube vs Sony/Viacom have one thing in common: content creator doesn't understand new means of distributions, gets angry, sues the platform, pisses the internet off.

The Oatmeal acted differently. When he got angry at the new means of distributions, he didn't sue, he didn't even threaten to do it. He accepted the situation, made a funny/angry comment about it (where he didn't lie nor even exaggerate the situation), and went back to his comic drawing business. Is it unfair? probably. But his "moving-on" attitude draws respect.

We're all cheering for The Oatmeal because he didn't attack, he got attacked. The internet is generally favorable for artists who don't make a big deal out of freely copying their work. Once they get attacked, at least, the internet always got their back (and as the IndieGoGo campaign showed, those freeloaders are more than willing to spend the big bucks to protect their proteges).

Very well said - and you've pretty much nailed the heart of the problem.

The mistake as I see it is in ruling on individual cases as a matter of some matter of single process that in itself can be ruled fair and unfair - where this in turn is derived from some fundamental intuition. Currently the DCMA does this on the basis of 'stealing is wrong' and 'only the individuals who directly perpetrate the crime of stealing should be held accountable'

Following from this intuitive starting point leads to the dilemma that you point out - insofar as the end result accords with our sensibilities in some cases (like the oatmeal) but not others - like worrying about massive multinationals that rip their artists off continually and seek to monopolise distribution channels to create artificial scarcity.

But believing you can find a single rational system that can encompass all facets is just madness.

This is reason become its opposite - something I saw all the time when studying various ethics related subjects. Some philosopher would come up with some kind of intuitive starting point and then reason it out until the Nth fucking degree until it was obviously wrong. Then folks would say - that's not right - and try to draw it back to another intuitive starting point that handles the counter examples better... until that itself becomes another absurdity.

Moral intuitions transcend the rational reality upon which most of law tries to base itself. So STOP MAKING IT A MATTER OF LAW.... Let people self regulate - as they are doing most excellently here. We know what's right in this case. Funnyjunk is behaving like a turd. Do I have to reason this back to an intuitive absolute foundation that gets the right answer for how multnational comglomerates should be treated? No. Not being able to do that in a perfectly consistent rational way actually does not confer any degree of doubt on the pronouncement against funnyjunk in this case.

Shit like this is of course one of the main reasons I want smaller government... not because it's necessarily bad if they get all keynesyan every once and a while... or bail out some nasty bankers... because government - at all levels - is invested in the very roots and beings of how we relate to each other... it's bizarrely fascist and horrible...

Soz </end rant>

I'd have to disagree with you on citing a paralellism between this case and "Pirate Bay vs Sony etc". As there's quite a huge difference between hosting the copyrighted content yourself, and pointing to where one can find copyrighted content. This has been the torrent stand ever since: that pointing to content stolen or otherwise is no way violating any sane law.

And it's quite sad really how an insane US law, the DCMA, is being used to make link aggregators, search engines and the like bend over to media conglomerates.

"I'm not advocating for any particular solution, just trying to draw parallels."

However, the fundamental break here is that the oatmeal makes his content available on the internet largely for free, whereas it can be difficult or impossible to access paywalled, unreleased, or service-based content.

People generally seem okay with control over creative content when general access to the content is not what is at stake.

I'm upvoting you, but I think your parallel falls apart at a certain level.

The Oatmeal provides his content freely available, a la carte, at his own website. There is no fundamental difference from consuming his "product" at http://www.theoatmeal.com vs http://www.funnyjunk.com. This is part of the general outrage, as FunnyJunk has provided no extra value for consumers, yet is still profiting.

However TPB/Youtube (arguably) provides value where the content creators (Sony/Viacom) don't, specifically in ease of distribution in the format/timeline the market demands.

I'm not saying you're wrong prima facie, however it's important to note that TPB and YouTube provide much more value vs. the licensed offerings than FunnyJunk does vs The Oatmeal.

While true, there is no other way for protection of copyrighted content to work without restricting free speech. Fingerprinting to block repeat uploads doesn't always work, because the second uploader may be the copyright holder himself! I got the impression that The Oatmeal would have less/no a problem with FunnyJunk if the images were attributed and linked back to their site.

Also, don't forget that DMCA is not "Internet law", it's an US law.

I agree with you that the DMCA isn't powerful enough to protect copyright in certain circumstances. Unfortunately, the DMCA is also too powerful and is routinely used haphazardly and for censorship.

In other words, copyright law is incompatible with the Internet.

This is amazingly and impressively thorough. He cites relevant caselaw left and right; the two that particularly struck me were:

- "FunnyJunk also alleges The Oatmeal's statements constitute false advertising under the Lanham Act. However, the statements made by The Oatmeal do not constitute commercial advertising or promotion, and therefore section 1125(a)(1)(B) of the Lanham Act is inapplicable."

- "Even assuming that all of the content on FunnyJunk is uploaded by users and FunnyJunk otherwise qualifies for DMCA immunity, it’s possible that The Oatmeal may be able to satisfy the “red flag” exception for DMCA immunity. See Viacom Int’l, Inc. v. YouTube, Inc., 676 F.3d 19, 41 (2d Cir. 2012) (discussing “red flag” test and reversing grant of summary judgment in favor of YouTube). It is also possible that FunnyJunk hasn’t complied with the requirements of the DMCA and thus cannot take advantage of its protections. Among other things, the DMCA requires a service provider to designate an agent, provide contact information, and file a notice of designation with the Copyright Office. Without taking a position on the other issues, I’ll note simply that FunnyJunk does not appear to have a notice of designation on file with the Copyright Office. This alone would be enough to undermine anydefense of immunity to claims of infringement that The Oatmeal (or third parties) may assert."

Great lawyer.

Another interesting point is that the Oatmeal started a reddit-like site called http://bearfood.com 25 days ago.

I wonder if that could make him be considered a "competitor" to FunnyJunk in the eyes of the law.

They are competitors for entertainment eyeballs anyway. Usually, competition is defined by a market (i.e. what customers get from them), not by how they manufacture their product. Of course, each litigant will construe the situation that best suits their case. related: "B. Market Lies" in http://blakemasters.tumblr.com/post/21169325300/peter-thiels...

Meanwhile, it's pageviews for everyone.

I don't see the connection between defamation and competition. Would it change the nature of the lawsuit if he were a competitor?

It might make it easier to prove there is malicious intent. If I'm in a completely separate business and I make a remark about your business practices, one can see it as an outsider making a (negative) observation if the language is only mildly disparaging. If I'm in the same business as you, it might come off as more of an attempt at me undermining you or trying to gain some benefit.

Ultimately it probably doesn't make much difference, in that defamation is usually difficult to prove anyway, but the context could sway things a bit.

It doesn't look like http://bearfood.com has advertisements so he isn't looking to make money on it. That's not to say that ads won't show up at a later date though.

Ah, that makes sense, thanks.

Wouldn't that make it easier for the Oatmeal to claim damages?

So let's say Funnyjunk stops threatening and decides not to sue. What have they lost?

* Legal fees for sending a couple of threating letters.

What have they gained?

* A full-page spread in The Oatmeal advertising the fact to all readers of Slashdot, HN, and many other social media sites that Funnyjunk exists, carries user-submitted comics such as would be interesting to readers of The Oatmeal, and are friendlier to content submitters than they are to the DMCA.

* Massive SEO links. Four out of the first six search results for "the oatmeal" from DDG refer to Funnyjunk. Funnyjunk has an entire section on http://en.wikipedia.org/wiki/The_Oatmeal#FunnyJunk_legal_dis... and an entire article dedicated to the dispute.

Now most of us want to believe "But this is negative publicity and Funnyjunk couldn't possibly want that". But before you conclude that, consider how little people are going to remember about this incident in just a few weeks. For example, do you remember even today the name of the Funnyjunk CEO or of his lawyer? I don't, but I remember Funnyjunk whereas I had never heard of it at all before. I've even been to their site several times now (following up on links posted at The Oatmeal).

I hate to say it, but this was brilliant and The Oatmeal fell for it.

* FJ is a site that's been around for years and has had a steady falloff of users and who's popularity has been waning since 2006. This looks to me like an act of desperation, not a brilliant gorilla marketing tactic.

* Threatening a lawsuit against The Oatmeal, who in turn responds with charity and humor does not make FJ seem cool.

* DDG is obviously returning some pretty bad relevance, considering a search for "the oatmeal" on Google doesn't return a single reference to FJ except in the News section talking about what huge dicks they are. This is not positive SEO. Also, when I search DDG in an empty session, I only get 2/6, not 4/6, so either they've already fixed this oversight or you're getting some unique results because of your history.

* FJ does not get DMCA protections. As pointed out in the above letter, they don't have a DMCA agent on file, which means that even though Inman isn't going to go after them, as a result of this bogus legal threat against him, they've just painted a big bullseye on themselves. Anyone who feels like they want to pile on and get some free money out of FJ can now point to their works being online and sue. Someone less courteous could extract up to $150,000 per infringement, especially since there is clearly commercial intent behind this "unauthorized sharing".

I hate to say it, but you've completely read this situation wrong, and if anything, The Oatmeal has come out with vastly more positive press from this than FJ ever will.

> brilliant gorilla marketing tactic

Best homophone mistake ever.

> Anyone who feels like they want to pile on and get some free money out of FJ can now point to their works being online and sue

Probably they didn't expect TO to draw attention to it, but didn't they have this exact same exposure before?

Wait a minute, wasn't Megaupload talking about filing some kind of lawsuits against content owners right before they were raided?

> The Oatmeal has come out with vastly more positive press

Oh absolutely. I didn't say anything about press TO might have received or that FJ had received anything but tons of negative press for it.

But FJ needed press and they got it. The question is in what ways is FJ actually worse off for having it been negative press which they received?

> FJ is a site that's been around for years and has had a steady falloff of users and who's popularity has been waning since 2006. This looks to me like an act of desperation, not a brilliant gorilla marketing tactic.

What's that based on? Their traffic has almost tripled in the last year. They publish their traffic statistics, as you can see here: http://funnyjunk.com/stat/

Yesterday they had 23,282,449 page views. 1 year ago today they had 9,978,711 page views.

I'm not so sure. FunnyJunk does need attention to be successful, but more than that, it needs participation. There has been considerable dissent in the FJ community and if that mounts, it could easily kill the necessary critical mass you need to keep a "user submitted content" site alive.

Perhaps their Supreme Leader felt that having an external enemy might quell dissention amongst the ranks.

I don't think The Oatmeal "fell" for anything. They got even more publicity than FJ-- and it was all positive. Seems more like a classic "pick a fight and everyone wins" situation.

And no taxpayer money used. Yea!

This is an interesting argument but I'm not sure I completely buy it. For a similar example, the Gizmodo/iPhone 4 fiasco definitely led to increased awareness and pageviews for the site. However subsequently their reputation took a hit and they no longer had a good relationship with Apple which hurt their ability to cover future product releases. I don't have any data to really back this up but I imagine in the long term it reduced readership for the site. Funnyjunk is way less known than Gizmodo (I had never heard of it until this recent story), so maybe the increased traffic will have a positive effect in the long term. However I don't think that's a smart or sustainable way to build an audience for any website.

"their reputation took a hit and they no longer had a good relationship with Apple which hurt their ability to cover future product releases."

That's a little different. That is more like "keep your enemies closer" type situation. Different strategy it's like a news outlet pissing off the White House in order to have a sensational story and then having access cut off.

Agree with you.

As I've said before things like this are like wd-40. The carrier wears off and the active ingredient remains to provide the benefit.

"consider how little people are going to remember about this incident in just a few weeks."

Exactly. One of the reasons people pick fights with market leaders. It gets them exposure. Even if they loose the fight.

I love the summary:

"At the end of the day, a lawsuit against The Oatmeal in this situation is just a really bad idea"

Never has a lawyer summarised a situation so clearly and succinctly.

Clearer, and more succint: A lawsuit based on these claims would have no merit.

Problems with the summation statement quoted: "At the end of the day" is superfluous and pedantic. "In this situation" is ambiguous and suggests that the statement only applies in the limited context of the facts raised in the letter, i.e., ignoring other potential facts which were not raised in the letter. "just" is superfluous, pedantic, and unprofessional. "a really bad idea" is superfluous, pedantic, and unprofessional. It is a really bad idea to use "a really bad idea" in a legal letter written to another lawyer.

It's bigger than having no merit as a lawsuit.

The reason I like the phrase is that it encapsulates the fact that this is wrong legally, from a PR perspective, morally and that there's much to lose and little to gain.

Agree, but the letter is not just written to the other lawyer, but to the Internet community at large, including potential clients. That audience will react better to the more colloquial statement.

The Oatmeal's lawyer, Venkat Balasubramani [1], is a regular contributor to Santa Clara law professor Eric Goldman's Technology & Marketing Law blog [2].

[1] https://twitter.com/#!/VBalasubramani

[2] http://blog.ericgoldman.org/

Smart people have at times succumbed to the foolishness of representing themselves in court. This reply should be a testament to the invaluable help a great lawyer can be in making one's case (if it weren't obvious already).

> Smart people have at times succumbed to the foolishness of representing themselves in court.

Ermmm. TheOatmeal isn't representing himself.

> This reply should be a testament to the invaluable help a great lawyer can be in making one's case (if it weren't obvious already).

How is this reply a testament to anything? You talk like TheOatmeal has lost the court case.

On the contrary, I'm saying that The Oatmeal was smart in deciding to hire a great lawyer. My comment was however more general than the specific case. As a smart person who is very competent in a given field, it's easy to fall prey of a cognitive bias which leads one to believe that you "know better" even within fields in which you lack the proper training and expertise. This is a testament, not because The Oatmeal made a foolish choice (he made a great choice), but rather because anyone reading the letter can appreciate the value and expertise brought in by such a competent lawyer.

> Ermmm. TheOatmeal isn't representing himself.

Did you read the second sentence of the post you're replying to?

> How is this reply a testament to anything? You talk like TheOatmeal has lost the court case.

Seriously, you need to read that second sentence. He talks like he just really appreciates a good lawyer.

He's pointing out that The Oatmeal has chosen not to represent himself, and that others have failed to make that choice correctly in the past. He's also using the linked letter from The Oatmeal's lawer as evidence of how good a decision this was.

I think you have misread parent; acangiano is not criticizing TheOatmeal, but the people who unlike Matthew Inman have decided to represent themselves, and contrasting them with him.

Personally speaking, I don't think it's necessary to send a letter of this length to rebut what is a spurious claim by FJ. The Oatmeal's lawyer has analysed the case well and is aware of its flawed nature, but this didn't need to be stated in the letter, as it would have sufficed to relay his analysis to OM.

I am fairly confident FJ's lawyer is aware of the flaws in his case and although an easy target, he is likely to be aware of relevant case law.

The point is that FJ's lawyer's letter was more akin to a shakedown used to obtain leverage, rather than a legitimate letter before claim detailing the full extent of the accusations present.

I would have responded in a blunt fashion denying their claims and asking them to prove loss to the value of $20,000.

Free* advertising and publicity for The Oatmeal. I found the letter quite entertaining, further embedding The Oatmeal in my mind since even his lawyer appears to have a sense of humor.

*I know lawyers aren't free, but he'd be paying a lawyer regardless of the letter's style.

It's possible (although I have no idea how plausible) that Mr Balasubramani could have written that letter pro bono, which would be excellent advertising given the coverage this is getting, and since he's on the Good Team, it's probably more valuable publicity than that of the other fellow.

I speculate (at the risk of demonstrating my ignorance) that this letter, at 1 page of background and ~4 pages of analysis, may not actually have taken all that long to prepare, especially for someone with intimate knowledge of DMCA and libel/defamation case-law.

Of course, it's a lot more complicated if he has arranged representation rather than just letter-writing, and the contact telephone at the end perhaps suggests he has, so it's quite possible I'm wrong.

Since Mr. Balasubramani has some background in writing (as mentioned above), it might just be a unique bonus to the service he offers.

The informal language and entertainment value of the letter seems to me to be a direct nod to the value of the Streisand effect in matters like this. The Oatmeal manages to make them look even worse in the most easily digestible format possible.

Although you are right, there would be a substantial difference between the cost for a letter of that length versus a brief rebuttal (although of course the underlying legal analysis would have still been undertaken, committing that legal analysis to paper would have taken additional time).

I do take your point that it is good publicity and on a related note, it is an interesting tactic to publicly disclose the legal response. It obviously will feed into the public support that the Oatmeal is receiving.

I'm not taking anything away from the letter itself - it was a good read - it's just that I don't think FJ's letter warranted or indeed deserved such an in-depth response.

You think FJ's lawyer is aware of the flaws in his case? I really didn't get that. I read his letter and ended up thinking "this guy is a total gristlehead". It scanned like a letter from a ten year old who knew a tiny amount of legalese.

Edit: I get that he's a high-profile lawyer and was respected for the work he did with sex.com, but the letter didn't seem like it was all that great. "Punch it into Google" was a phrase he used. Seriously?

Play the psychological game. Your attack can't seem tentative; if it does, you're telling your target how to defend themselves. Minimizing effort maximizes gain.

I think the letter was brief and to the point. Lawyers are criticised for excessive legalese and impenetrable prose. Contrary to this, the phrase you mention is easily understood by the reader and serves its purpose.

In terms of his awareness of the flaws, I would say that they would be apparent to most people with an awareness of the basic facts of the case. Obviously in reality, I have no idea of his awareness but I would be surprised if he wasn't.

"Punch it into Google" does not illustrate the complexities of Google Search. Was he logged in and thus subjected to local and personal results? Was his IP tagged as being from a certain country and thus served results based on that regional information?

I understood that the initial criticism was that the phrase 'Punch into Google' was not sufficiently clear or at least was too informal for legal correspondence.

Even if this was restated in formal terms the same deficiency you describe would still be applicable.

If the original criticism was that the phrase did not disclose sufficient information to identify the particular circumstances surrounding the search results, then the reality is that even if this information was supplied, it would not assist.

The appearance of a post in search results is not the actionable matter, but rather the underlying cause of such appearance (for example a defamatory post referring to x, which then appears in search result for x).

Here, the alleged issue was the reference to FJ on The Oatmeal's site which was in fact completely legitimate.

Disclosing the specific circumstances surrounding the search would only have served to dilute the point of the letter, which as has been mentioned was intended more as a shakedown (albeit a completely flawed attempt at a shakedown).

That's the point: I don't think he's very aware. I don't think he knew how popular The Oatmeal was. I don't think he knew anything its fans (of which I am not one, incidentally).

I also don't think he fully appreciates the complexity of how the web works. I'm sure through his sex.com case he's pretty familiar with how domain names work and the legal recourse for dealing with those, but he just seems totally out of his depth discussing libel.

As for the "punch it into Google", it's hilariously colloquial at best and ignorant of the way which Google works at worst.

Heh, perhaps I do give the guy too much credit.

On the language point, considering the nature of the language I use in my letters and agreements I draft, I found his letter to be quite refreshing (at least in terms of the language used rather than its intention!).

"... I'll note simply that FunnyJunk does not appear to have a notice ofdesignation on file with the Copyright Office."

If true, that's pretty bad- that means that FunnyJunk's safe harbor status can be challenged (17 U.S.C. § 512(c)(2))

> notice of designation on file with the Copyright Office

What is that, exactly?

You basically have to have on file with the copyright office an agent designated to handle takedown claims, if you want to qualify for safe harbor provisions.

http://www.copyright.gov/onlinesp/

Can someone post the text of this outside of Scribd? Their site always breaks in my browsers and I can't log in right now to download the PDF.

https://www.dropbox.com/s/7lnsbd7363qkwdu/96850920-FunnyJunk...

Thank you. Scribd is usually more trouble than it's worth.

The Oatmeal's donation campaign to the Wildlife fund and Cancer Society (and 2 other charities) is up to $168,000! http://www.indiegogo.com/bearlovegood?a=700062

The only winners in this legal brouhaha are the charities, how's that for turning the world up-side-down.

And the lawyers!

Carreon has certainly been owned by The Oatmeal's lawyer.

For those that didn't read it, I believe the answer from The Oatmeal in his blog is absolutely hilarious: http://theoatmeal.com/blog/funnyjunk_letter

Nicely dismantles all the relevant points pretty easily, needs more bear fondling older ladies. B+.

It is also as surprisingly readable as it is thorough.

Yeah I noticed that as well, it kept everything short without wandering into the usual legalbabble that seems permeate most legal letters.

This article estimated the time of the "Blog Post" by saying the first comment was about "10 months ago", so the posted time must be before that.

This actually points out a very annoying thing that many bloggers do: They don't date the blog posts. For some reason, they think that the posts are timeless. This is especially annoying for technical articles, where the knowledge of time of publication is crucial.

My suggestion is: date your articles.

"(Interestingly, the subsequent blog post contains a screenshot of a statement by FunnyJunk that, under FunnyJunk’s own logic, would constitute defamation: "[t]he Oatmeal wants to sue funnyjunk andshut it down!" The Oatmeal never threatened to sue FunnyJunk, nor did he ever indicate thathe wanted to shut down FunnyJunk’s website.)"

Damn. You need some ice for that burn?!

From two years ago and perhaps the site has a different owner now, but a revealing look at FunnyJunk:

http://www.wickedfire.com/affiliate-marketing/97419-250k-uni...

You need to register to see the thread, but the main part:

Posted: 07-23-2010, 04:28 PM

"My site, Funnyjunk.com has about 6 million page views a day and 250k uniques a day. It currently has no ad networks.

Valueclick, Adsense, and Casale kicked me off for adult content.

What adult content you ask? Nothing worse than you would see on youtube. The porn gets flagged and such."

This is probably some of the best advertising Venkat can do for himself.

Nice letter, and very well written.

I never read anything written like this in portugues. The lawyers here abuse in use legalese.

Most English-speaking lawyers do the same. This letter was refreshingly clear in its use of language.

So, one question that I had initially was addressed in the response, namely: does FunnyJunk actually qualify for DMCA fair harbor status?

From what I've read, it's a pretty simple and strict guideline - register an agent with the US Copyright Office so that you can receive notices of infringement. If you do that, you're protected from user-uploaded content.

In the response, Venkat alludes to the lack of a registered agent, so I went and looked it up (http://www.copyright.gov/onlinesp/list/f_agents.html). I can't see Funny Junk listed anywhere. If this is the case, they should consider themselves very lucky that they aren't getting counter-sued into oblivion.

Am I correct in the need for an agent? Am I looking in the right place?

A successful defamation case in America requires proof that the offender had committed so called actual malice. This is very hard to do.

A successful defamation case in America requires proof that the offender had committed so called actual malice.

Only a subset of plaintiffs in defamation cases are required to prove "actual malice" (a specialized legal term defined below). The general law in the United States is

"Depending on the circumstances, the plaintiff will either need to prove that the defendant acted negligently, if the plaintiff is a private figure, or with actual malice, if the plaintiff is a public figure or official."

http://www.citmedialaw.org/legal-guide/proving-fault-actual-...

"The First Amendment requires that a defamation plaintiff prove actual malice or reckless disregard of the truth when the plaintiff is a public official or public figure. New York Times v. Sullivan, 376 U.S. 254 (1964). This is a much higher burden of proof for a public figure plaintiff. Instead of showing objectively that a "reasonable person" knew or should have known the defamatory statement was false, a public figure plaintiff must prove the intent of the defendant was malicious, or that they acted with reckless disregard for the truth. This allows the defendant to prove its good faith intent and efforts as a defense."

It's a debatable question in this case whether or not FunnyJunk's role in this litigation triggers the requirement to allege "actual malice" (it is certainly not a public official), so maybe FunnyJunk doesn't need to allege "actual malice."

"Actual Malice

"In a legal sense, 'actual malice' has nothing to do with ill will or disliking someone and wishing him harm. Rather, courts have defined 'actual malice' in the defamation context as publishing a statement while either

"knowing that it is false; or

"acting with reckless disregard for the statement's truth or falsity.

"It should be noted that the actual malice standard focuses on the defendant's actual state of mind at the time of publication. Unlike the negligence standard discussed later in this section, the actual malice standard is not measured by what a reasonable person would have published or investigated prior to publication. Instead, the plaintiff must produce clear and convincing evidence that the defendant actually knew the information was false or entertained serious doubts as to the truth of his publication. In making this determination, a court will look for evidence of the defendant's state of mind at the time of publication and will likely examine the steps he took in researching, editing, and fact checking his work. It is generally not sufficient, however, for a plaintiff to merely show that the defendant didn't like her, failed to contact her for comment, knew she had denied the information, relied on a single biased source, or failed to correct the statement after publication."

http://www.citmedialaw.org/legal-guide/proving-fault-actual-...

The Oatmeal's donation campaign to the Wildlife fund and Cancer Society (and 2 other charities) is up $168,000! http://www.indiegogo.com/bearlovegood?a=700062

The only winners in a legal brouhaha are the charities, how's that for turning the world up-side-down.

The only sad thing about reading this, is the incredible expense of creating such a response. In my experience, response letters such as these littered with appropriate references can easily cost several thousand dollars. I guess just the 'cost of doing business' on the internet.

This back and forth public argument feels a lot like the hype up for a professional wrestling, boxing, or mma match. Both sides talking themselves up while the audience picks sides and eats it up.

I'm sure this wasn't intended but it's fascinating to say the least.

This letter is surprisingly readable to non-lawyers. I wonder if this is sometimes done intentionally if the lawyer writing it knows it may/will end up publicly available like this.

From a layman's POV, this just looks like abusing law for profit. There is no potential justice here, just profit. Call me a simpleton, but how is that not a crime in its self?

It's been a big week for the Streisand Effect. Between The Oatmeal and Never Seconds, nearly a quarter million dollars has been raised for charities.

"At the end of the day, a lawsuit against TheOatmeal in this situation is just a really bad idea"

My favourite line.

Oatmeal shouldnt have said they mirrored his site.

Carreon just got lawyered

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