I'm not sure I'm seeing any issue here. OK, so he was good at SEO. The fact is that he has always been very happy to have his comics republished, so long as they link back to the original site. Can't be fairer than that.
Funnyjunk didn't do that. However, he didn't take legal action. He wrote a blog, and exercized his right to free expression. Nothing about the blog was factually incorrect. The links are dead because the images have been taken down.
To be honest, he does come out looking flawless! If someone can point out what he's done wrong, I'm very curious. Certainly the letter he recieved from the lawyer is absurd... Starting from the top:
1. "FunnyJunk, LLC. ("FunnyJunk"), a competitor of TheOatmeal.com in the field of online humor". Where can you go with this? TheOatmeal isn't competing with them.
2. He took an old blog post from last year, then stated that the screenshot was "taken long ago". As is pointed out in the annotated letter, this means nothing.
3. Google cache shows that they had hundreds of images, many of them with the attribution removed.
Yeah Matt's a good guy. I've had coffee with him, worked with him very briefly, know friends of his, he's well liked in the Seattle community, etc. He's smart and talented. I'm watching this with interest because my lawyers have always told me to not fight a legal threat in the press (e.g. a trademark lawsuit I dealt with) because judges don't look kindly on it. But I'm not sure I agree with that so will be interesting to see how/if this unfolds.
His post was very clevery written to lead the reader to believe that Funnyjunk was stealing the images and that their statements that the users were uploading the images in question were a smokescreen. Could he defend this claim in court?
Sure. FunnyJunk, from what I can tell, has no designated agent to respond to DMCA takedown requests. Thus it cannot satisfy safe harbour provisions.
I would suggest that FunnyJunk get themselves some competent legal counsel, because right now it doesn't satisfy DMCA 512. According to 17 USC § 512(c)(2), safe harbor protections "apply to a service provider only if the service provider has designated an agent to receive notifications of claimed infringement".
FunnyJunk LLC. need to provide these details "by making available through its service, including on its website in a location accessible to the public". They need to provide at least "the name, address, phone number, and electronic mail address of the agent".
And I'm sorry, but the webform at http://www.funnyjunk.com/copyright/ doesn't do this. I can assure you, that there is absolutely no way to transmit a physical or electronic signature as they have stated on their page via their form.
Funnyjunk appears to be a comedy site with no sense of humour. Next thing you know someone might start a rolling TV news channel with no knowledge of current affairs, named after some kind of wild dog, and then where would we be? Although, to be fair, that could never happen, as nobody would be stupid enough to watch it.
> One is reminded of what Big Mama Thornton once said about Elvis Presley. Big Mama had created the song "Hound Dog" and earned $50, but Elvis got the hit and countless millions. Asked how she felt about that, Big Mama replied, "Honey, I'm still here to spend my fifty dollars!"
I wonder if you can complain to the bar. Seems like a number of lawyers have taken up the "shakedown" model and been penalized for it. You should be able to complain to. The bar that this lawyer reflects badly on the profession for not doing his research.
One thing which I remember seeing once was that Lawyer A had emailed site B with some threat of a lawsuit, and B's lawyer immediately filed in court for a declaration that A's threat was frivolous and harrassing, so that B should get some sort of automatic damages if A ever sends another communication on the same topic again.
I wasn't sure what legal principles were involved, or whether that declaration was granted, but the whole idea was pretty kickass; "this is so obviously something which you can't sue me for that I'm going to have a court shove that fact up your rear end."
I'd love to take that $20-40k and put it towards a company that does nothing but monitor websites like Funny Junk and issue takedown notices on the behalf of the content owners.
Companies like this probably exist, but I'm sure they don't come cheap and are used primarily by the big players (eg music labels, movie studios).
I think it is great that Matt is donating the money to charity. However, the idea of putting the money towards some kind of community focused content monitor struck me as an interesting alternative.
I also wonder to what degree something like this could be automated. I know sites like YouTube monitor their own content, but what if Matt could upload all his images, verify his ownership in a legally meaningful way, and then automatically monitor Funny Junk and issue takedown notices in real time.
I'm curious about this too. Use something like Tineye and check new Funnyjunk submissions against The Oatmeals image archive. Aside from the hardware it's a tiny amount of work for 1 human to monitor the results.
...until the company starts to monitor sites like Reddit and Imgur and suddenly, all the re-hosted stuff that lands on Reddit on a daily basis leads to the "good" Imgur being sued by the machine that formerly was used to combat the "evil" Funnyjunk.
Consider the offsetting financial incentives here.
Sites like FunnyJunk can be created by a small team, allow the upload of a ton of copyrighted content by users, and then run ads next to copyrighted content. Boom, instant money, and if they do well, maybe an acquisition (see: YouTube). All they have to do is keep up with DMCA takedowns, which are few and far between from small content producers like The Oatmeal.
Meanwhile, if you want to build a company to automate content protection, you have to go find deep-pocketed content creators from day one. I don't know of any way to run ads against the creation of DMCA takedowns.
So the financial incentives are totally asymmetric. It's way easier and more lucrative to create a platform for infringing content, than for protecting it. Until that changes, small creators like The Oatmeal will get victimized.
If this changes small creators like The Oatmeal won't stand a chance. He bootstrapped the success of his website in large part through Reddit, which is of course a commercial site based around user-submitted content that allows and profits from a ton of copyright infringement. Stopping people from infringing your copyright is no good if no-one ever finds out about your content.
Obviously this doesn't matter to The Oatmeal anymore - everyone's heard of The Oatmeal by now, and preventing competitors from becoming well-known is probably good for profits - but it's not great for the internet in general. Probably wouldn't be good for YCombinator either.
I'm not super familiar with Pinterest personally, but from what I've read, they drive significant amounts of traffic around the web, particularly to e-commerce. My understanding is that it is like Reddit, but with thumbnails. That seems (to me anyway) on the right side of the line.
Sites like FunnyJunk drive no traffic anywhere. They're built to suck in other people's content and keep all the traffic on the FunnyJunk servers.
There's always a chance, but if so they're very poor marketers. This is the modern world - there IS such a thing as bad publicity. They just got a mountain of it, and The Oatmeal came out smelling like roses.
I don't know. I've never heard of them before and I didn't click on them because of this (though I did read all the oatmeal blog posts). Doesn't sound like there's a reason to click on them if they just copy other sites for which Oatmeal has a link to the originators.
If 90% of everyone who hears about this story hates their guts and only 1% start using their service that's a big win for them. Being a small website is not like being a politician or national brand where you can't afford to alienate large numbers of people.
That's not how advertising works. You are certainly more aware of FunnyJunk now. For example, the next time you see a link that points there you will probably pay more attention than you would otherwise.
Obviously. For obscure brands, the first problem to solve is being unknown. It is much better to be hated than to be ignored.
For well-established brands, it may be less true: I guess Shell and Total would prefer no publicity related to oil spills.
But even then, bad publicity can have good outcome. I know from personal relations about a brand that has been under fire on Facebook and blogs: the amount of clients did actually increase during and after the hit.
They really didn't like it the last time that The Oatmeal talked about funnyjunk (and was highly linked to, commented about and other google-juice-accumulating indicators), or at least that's what the lawyer's letter indicates. Why should this time be any different?
The guy is a lawyer and seems to think that they do.
If you read his letter it's very specific, he's not saying that the material isn't there, he's taking issue with the suggestion that funnyjunk is willfully violating the Oatmeal's copyright (as opposed to just not responding fast enough in pulling it down). That's the complaint - the suggestion that it's intentional.
Just because you've been wronged, it doesn't give you carte blanc to say what you want about the person doing it. You're safest sticking to the absolute barest facts with no editorialising or commentary.
I have no problem in seeing that there might be a valid case here. I don't like it and it sucks, but in the eyes of the law there might be something.
(Obviously all this ignores the possibility that he's just rattling the cage and seeing if there's $20,000 of easy money there based on Inman running scared. It might be significant that neither the requests being made in terms of removing the material nor the amount (compared to potential legal fees in fighting the case) are that onerous).
FunnyJunk is apparently responding quietly on their site, as just searching for the word 'oatmeal' results in no search results (that wasn't the case when this blog post went up). According to people I know that use the site, you cannot add comments with the word 'oatmeal', either. They also deleted every single linked image he exhaustively listed.
I have a hard time resolving litigation like this with the fact that the truth can change in minutes, as Web sites are fairly easy to edit. It's just scary.
Interesting question - you could take automated screenshots, save them in a lawyer-friendly format (e.g. PDF) and then add a certifying signature with a secure timestamp (perhaps adding the raw pages and images from the site as attachments to the PDF as well).
If the target market was lawyers you could probably charge a chunk-o-money for it as well...
NB I have no idea whether such a service already exists.
The alleged libel is based, in part, upon Funnyjunk's claim that they are acting legally within the safe harbor provisions of the DMCA by only hosting UGC and taking it down upon notice of infringement.
The Oatmeal's response to the claim included a list of content infringing his copyright. Funnyjunk is going to want to remove that content to retain its safe harbor from liability for the infringement. It may or may not be a properly worded notice under the DMCA, but a lot of notices UGC hosts get aren't, and they still take down the content -- because the intent of the parties and whether they acted in good faith matters when it's time to face a judge.
That the pages are no longer accessible does not mean the evidence has been destroyed, either. The DMCA requires only that you "block access to" the content, not physically remove it from a server.
I'm no lawyer but couldn't this theoretically be used in court by Inman since FunnyJunk apparently makes it extra hard for content creators like Inman, the Cyanide & Happiness guys et cetera to find their content and issue takedown requests?
Thinking a bit further: by filtering search they are implicitly saying that they know they are hosting content by Inman aren't they? In that case they shouldn't be able to hide behind the DMCA safe harbor provisions since one of the requirements of the DMCA is that the Online Service Provider has no knowledge about any infringing material on their servers (Section 512(c) http://www.law.cornell.edu/uscode/text/17/512)
comedy protip: strong/hard consonants are funny. 'kodiak' is an awesome comedic word. Any punchline involving a bear could almost certainly be improved by inserting 'kodiak'. Just like you should use 'buick' when you need an arbitrary car, and 'tuesday' when you need an arbitrary day. This also explains why a well-placed 'fuck' is funny.
I guess everyone's sense of humor is different. Personally, I found the "literally" comic confronting, but I was rolling on the floor laughing at the gay-roller image... IMO, the guy is a comic genius :-)
Of course not everyone would agree with me that it is banal, but I have read a number of them I've seen linked here and there, including the above. I didn't find any of them particularly amusing. Nor did I like the artwork.
Besides the "komedy k's" that was already mentioned, a kodiak bear is a very specific type of bear. More specificity is generally considered funny when you're describing a story in the form of a joke. Not only does it add tension by drawing out the conclusion, it implies the comedian has actually put some significant thought into the situation they're describing.
Not just a bear. Not a polar bear. Not a brown bear. A kodiak bear. The only thing funnier would be "a 8' tall, ill-tempered, honey-hating, monkey-fighting kodiak bear. Named Maurice."
While this is a great story likely to go down in Internet history, it seems a risky strategy. Sure he raised $20k but seems like this will just fuel the fire of the FunnyJunk lawyers. There have been more trivial legal cases than this one - that could go on for a long time.
That kind of money isn't consistent, though - raising that much money from one case where people clearly want to side with him, even if he wasn't donating the money to two charities, is much easier than doing it every week to pay off legal expenses.
Yes, I was a little surprised when I reached the charity step: 'well, what do you plan to do if they actually do sue you? Go ask your fans for another 40k to pay for your defense & appeal and/or damages?'
Why prolong the conflict? The Oatmeal wants to move past all this. Emailing FJ is just going to cause them to be agitated and therefore continue to pursue their action, prolonging the headache. It might even be counterproductive if they can use the mass of emails as "proof" that their reputation has been damaged.
Let's not take a funny/clever retort by TheOatmeal and ruin it by being jackasses.
Um. Seriously? A unique individual with one of the most brilliant, funny, audacious and original voices on the Internet and you'd like to see him sued out of existence? Because uh ... the Internet's not big enough or what? Wow. Just wow.
So in your world; wanting someone to be sued to the point that they go completely out of business and can never open again is one side and "I really enjoy the product" is the complete opposite side of the spectrum?