
The Oatmeal's lawyer responds to FunnyJunk - engtech
http://www.scribd.com/doc/96850920/FunnyJunk-The-Oatmeal-Response
======
jenius
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.

~~~
rubyrescue
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.

~~~
larrys
"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).

~~~
rubyrescue
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

------
snowwrestler
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.

~~~
babarock
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).

------
aseemk
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.

~~~
engtech
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.

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

~~~
RobAtticus
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.

~~~
armsteady
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.

------
marshray
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...](http://en.wikipedia.org/wiki/The_Oatmeal#FunnyJunk_legal_dispute) 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.

~~~
calciphus
* 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.

~~~
wizzard
> brilliant gorilla marketing tactic

Best homophone mistake ever.

------
Tyrannosaurs
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.

~~~
rprasad
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.

~~~
Tyrannosaurs
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.

------
dctoedt
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/>

------
acangiano
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).

~~~
irahul
> 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.

~~~
acangiano
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.

------
grabeh
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.

~~~
pdubs
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.

~~~
shabble
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.

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

------
dibarra
"... 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))

~~~
davidw
> notice of designation on file with the Copyright Office

What is that, exactly?

~~~
carbocation
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.

------
clebio
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.

~~~
grabeh
[https://www.dropbox.com/s/7lnsbd7363qkwdu/96850920-FunnyJunk...](https://www.dropbox.com/s/7lnsbd7363qkwdu/96850920-FunnyJunk-
The-Oatmeal-Response.pdf)

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

------
woodchuck64
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.

~~~
ido
And the lawyers!

------
espinchi
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>

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

~~~
masklinn
It is also as surprisingly readable as it is thorough.

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

------
vph
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.

------
willurd
"(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?!

------
lushn
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...](http://www.wickedfire.com/affiliate-
marketing/97419-250k-uniques-6-million-impressions-day-zero-revenue.html)

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."

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

------
dudurocha
Nice letter, and very well written.

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

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

------
mbreese
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?

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

~~~
tokenadult
_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-...](http://www.citmedialaw.org/legal-guide/proving-fault-actual-
malice-and-negligence)

"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-...](http://www.citmedialaw.org/legal-guide/proving-fault-actual-
malice-and-negligence)

------
woodchuck64
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.

------
zaroth
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.

------
programminggeek
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.

------
jtrdk
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.

------
alan_cx
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?

------
bstpierre
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.

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

My favourite line.

------
bherrmann7
Oatmeal shouldnt have said they mirrored his site.

------
nsomniact
Carreon just got lawyered

