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The Oatmeal's lawyer responds to FunnyJunk

275 points by engtech 14y ago

nicholassmith 14y ago
Nicely dismantles all the relevant points pretty easily, needs more bear fondling older ladies. B+.
- masklinn 14y ago
  It is also as surprisingly readable as it is thorough.
  - nicholassmith 14y ago
    Yeah I noticed that as well, it kept everything short without wandering into the usual legalbabble that seems permeate most legal letters.
deleted 14y ago
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aseemk 14y ago
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 14y ago
  Another interesting point is that the Oatmeal started a reddit-like site called http://bearfood.com 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 14y ago
    I don't see the connection between defamation and competition. Would it change the nature of the lawsuit if he were a competitor?
    - RobAtticus 14y ago
      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.
      - fusiongyro 14y ago
        Ah, that makes sense, thanks.
      - armsteady 14y ago
        It doesn't look like http://bearfood.com 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.
  - 6ren 14y ago
    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-cs183-startup-class-4-notes-essay http://blakemasters.tumblr.com/post/21169325300/peter-thiels... Meanwhile, it's pageviews for everyone.
Tyrannosaurs 14y ago
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 14y ago
  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 14y ago
    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.
  - erehweb 14y ago
    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.
  - lecodecivil 14y ago
    Dude, quit with the legal editing. It's a reply letter, not a legal brief. The point is not to win in court, it's to intimidate the other side. Your version might be clearer and more succinct, but my eyes still glazed over by the end. And calling each component part of a plain-language sentence superfluous, pedantic, and unprofessional is itself superfluous, pedantic, and unprofessional. Pot, meet kettle.
grabeh 14y ago
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.
- georgespencer 14y ago
  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?
  - grabeh 14y ago
    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.
    - gavreh 14y ago
      "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?
jenius 14y ago
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.
- voodoomagicman 14y ago
  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.
  - icebraining 14y ago
    I doubt that is worth $100k to FunnyJunk, though.
    - ido 14y ago
      Almost $170k now: http://www.indiegogo.com/bearlovegood http://www.indiegogo.com/bearlovegood
- rubyrescue 14y ago
  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 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.
dibarra 14y ago
"... 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 14y ago
  > notice of designation on file with the Copyright Office What is that, exactly?
  - icebraining 14y ago
    http://www.copyright.gov/onlinesp/ http://www.copyright.gov/onlinesp/
  - carbocation 14y ago
    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.
taylorbuley 14y ago
A successful defamation case in America requires proof that the offender had committed so called actual malice. This is very hard to do.
- tokenadult 14y ago
  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-malice-and-negligence 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-malice-and-negligence http://www.citmedialaw.org/legal-guide/proving-fault-actual-...
acangiano 14y ago
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 14y ago
  > 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.
  - icebraining 14y ago
    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.
  - timdiggerm 14y ago
    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.
  - bronson 14y ago
    > 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.
  - acangiano 14y ago
    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.
espinchi 14y ago
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 http://theoatmeal.com/blog/funnyjunk_letter
dudurocha 14y ago
Nice letter, and very well written. I never read anything written like this in portugues. The lawyers here abuse in use legalese.
- RyanMcGreal 14y ago
  Most English-speaking lawyers do the same. This letter was refreshingly clear in its use of language.
clebio 14y ago
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 14y ago
  https://www.dropbox.com/s/7lnsbd7363qkwdu/96850920-FunnyJunk-The-Oatmeal-Response.pdf https://www.dropbox.com/s/7lnsbd7363qkwdu/96850920-FunnyJunk...
  - wickedchicken 14y ago
    Thank you. Scribd is usually more trouble than it's worth.
deleted 14y ago
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dctoedt 14y ago
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 https://twitter.com/#!/VBalasubramani [2] http://blog.ericgoldman.org/ http://blog.ericgoldman.org/
woodchuck64 14y ago
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 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.
woodchuck64 14y ago
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 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 14y ago
  And the lawyers!
willurd 14y ago
"(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?!
porterhaney 14y ago
This is probably some of the best advertising Venkat can do for himself.
bherrmann7 14y ago
Oatmeal shouldnt have said they mirrored his site.
marshray 14y ago
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_dispute 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.
- tansey 14y ago
  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.
  - genwin 14y ago
    And no taxpayer money used. Yea!
- RaviSParikh 14y ago
  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.
nsomniact 14y ago
Carreon just got lawyered
alan_cx 14y ago
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?
lushn 14y ago
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-uniques-6-million-impressions-day-zero-revenue.html 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."
snowwrestler 14y ago
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.
- rplnt 14y ago
  Also, don't forget that DMCA is not "Internet law", it's an US law.
- deleted 14y ago
  [deleted]
- jreeve 14y ago
  "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.
- grovulent 14y ago
programminggeek 14y ago
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.
vph 14y ago
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.
zaroth 14y ago
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.
mbreese 14y ago
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 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?
jtrdk 14y ago
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.
bstpierre 14y ago
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 14y ago
"At the end of the day, a lawsuit against TheOatmeal in this situation is just a really bad idea" My favourite line.

275 points by engtech 14y ago

nicholassmith 14y ago

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

masklinn 14y ago
It is also as surprisingly readable as it is thorough.
- nicholassmith 14y ago
  Yeah I noticed that as well, it kept everything short without wandering into the usual legalbabble that seems permeate most legal letters.

deleted 14y ago

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aseemk 14y ago

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 14y ago
Another interesting point is that the Oatmeal started a reddit-like site called http://bearfood.com 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 14y ago
  I don't see the connection between defamation and competition. Would it change the nature of the lawsuit if he were a competitor?
  - RobAtticus 14y ago
    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.
    - fusiongyro 14y ago
      Ah, that makes sense, thanks.
    - armsteady 14y ago
      It doesn't look like http://bearfood.com 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.
- 6ren 14y ago
  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-cs183-startup-class-4-notes-essay http://blakemasters.tumblr.com/post/21169325300/peter-thiels... Meanwhile, it's pageviews for everyone.

Tyrannosaurs 14y ago

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 14y ago
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 14y ago
  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.
- erehweb 14y ago
  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.
- lecodecivil 14y ago
  Dude, quit with the legal editing. It's a reply letter, not a legal brief. The point is not to win in court, it's to intimidate the other side. Your version might be clearer and more succinct, but my eyes still glazed over by the end. And calling each component part of a plain-language sentence superfluous, pedantic, and unprofessional is itself superfluous, pedantic, and unprofessional. Pot, meet kettle.

grabeh 14y ago

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.

georgespencer 14y ago
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?
- grabeh 14y ago
  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.
  - gavreh 14y ago
    "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?

jenius 14y ago

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.

voodoomagicman 14y ago
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.
- icebraining 14y ago
  I doubt that is worth $100k to FunnyJunk, though.
  - ido 14y ago
    Almost $170k now: http://www.indiegogo.com/bearlovegood http://www.indiegogo.com/bearlovegood
rubyrescue 14y ago
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 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.

dibarra 14y ago

"... 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 14y ago
> notice of designation on file with the Copyright Office What is that, exactly?
- icebraining 14y ago
  http://www.copyright.gov/onlinesp/ http://www.copyright.gov/onlinesp/
- carbocation 14y ago
  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.

taylorbuley 14y ago

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

tokenadult 14y ago
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-malice-and-negligence 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-malice-and-negligence http://www.citmedialaw.org/legal-guide/proving-fault-actual-...

acangiano 14y ago

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 14y ago
> 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.
- icebraining 14y ago
  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.
- timdiggerm 14y ago
  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.
- bronson 14y ago
  > 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.
- acangiano 14y ago
  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.

espinchi 14y ago

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 http://theoatmeal.com/blog/funnyjunk_letter

dudurocha 14y ago

Nice letter, and very well written. I never read anything written like this in portugues. The lawyers here abuse in use legalese.

RyanMcGreal 14y ago
Most English-speaking lawyers do the same. This letter was refreshingly clear in its use of language.

clebio 14y ago

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 14y ago
https://www.dropbox.com/s/7lnsbd7363qkwdu/96850920-FunnyJunk-The-Oatmeal-Response.pdf https://www.dropbox.com/s/7lnsbd7363qkwdu/96850920-FunnyJunk...
- wickedchicken 14y ago
  Thank you. Scribd is usually more trouble than it's worth.

deleted 14y ago

[deleted]

dctoedt 14y ago

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 https://twitter.com/#!/VBalasubramani [2] http://blog.ericgoldman.org/ http://blog.ericgoldman.org/

woodchuck64 14y ago

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 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.

woodchuck64 14y ago

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 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 14y ago
And the lawyers!

willurd 14y ago

"(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?!

porterhaney 14y ago

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

bherrmann7 14y ago

Oatmeal shouldnt have said they mirrored his site.

marshray 14y ago

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_dispute 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.

tansey 14y ago
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.
- genwin 14y ago
  And no taxpayer money used. Yea!
RaviSParikh 14y ago
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.

nsomniact 14y ago

Carreon just got lawyered

alan_cx 14y ago

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?

lushn 14y ago

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-uniques-6-million-impressions-day-zero-revenue.html 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."

snowwrestler 14y ago

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.

rplnt 14y ago
Also, don't forget that DMCA is not "Internet law", it's an US law.
deleted 14y ago
[deleted]
jreeve 14y ago
"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.
grovulent 14y ago

programminggeek 14y ago

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.

vph 14y ago

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.

zaroth 14y ago

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.

mbreese 14y ago

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 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?

jtrdk 14y ago

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.

bstpierre 14y ago

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 14y ago

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