How Dare You! That's The Wrong Kind of Bullying!

Law, Law Practice

Note: our entire series of posts about the Oatmeal v. Funnyjunk situation is now complied under the Oatmeal v. Funnyjunk tag.

The most astonishing thing about Charles Carreon — the attorney whose ill-considered threat is at the heart of the Oatmeal/FunnyJunk debacle I wrote about yesterday — is that the man markets himself as an internet lawyer.

Yet Charles Carreon seems mystified by the most basic elements of internet culture that even the rawest YouTube-watching tyro could explain. For instance, he seems taken aback by the notion that sending a smug lawsuit threat to a professionally snarky and frequently cheerfully vulgar online cartoonist with a rabid following could lead to the public relations catastrophe he now faces. Carreon sounds notes of wounded innocence in his interview with MSNBC:

"I really did not expect that he would marshal an army of people who would besiege my website and send me a string of obscene emails," he says.

"I'm completely unfamiliar really with this style of responding to a legal threat — I've never really seen it before," Carreon explains. "I don't like seeing anyone referring to my mother as a sexual deviant," he added, referencing the drawing Inman posted.

If this were an 80-year-old probate lawyer, I could write this off as culture shock. But in a self-described "internet lawyer," this failure to anticipate the natural and probable consequences of such a legal threat in such a subculture was nothing less than incompetence — a grave departure below the standard of care. Regrettably it's all too common. Lawyers send threats to silence critics without any apparent consciousness of the Streisand Effect — without understanding, as any minimally competent attorney in this arena would, that such threats will naturally lead to several orders of magnitude more people hearing about the complained-about content, and also to a much more negative view of the client. The questions are clear: have these lawyers heard of the Streisand Effect? Do they counsel their clients about the likely impact of their legal threats? If not, how do their clients react later when they find out the hard way?

But Charles Carreon's sin is not merely one of willful ignorance. He's also guilty of wretched hypocrisy.

"It's an education in the power of mob psychology and the Internet," Carreon told me.

Charles Carreon likes and supports one type of bullying — the type that makes money for him, the type he is licensed by the State Bar to use — but hates and condemns another kind, the kind that doesn't make him money, the kind that any sort of rube who never went to law school can employ.

See, a legal threat like the one Charles Carreon sent — "shut up, delete your criticism of my client, give me $20,000, or I'll file a federal lawsuit against you" — is unquestionably a form of bullying. It's a form that's endorsed by our broken legal system. Charles Carreon doesn't have to speak the subtext, any more than the local lout has to tell the corner bodega-owner that "protection money" means "pay of we'll trash your shop." The message is plain to anyone who is at all familiar with the system, whether by experience or by cultural messages. What Charles Carreon's letter conveyed was this: "It doesn't matter if you're in the right. It doesn't matter if I'm in the wrong. It doesn't matter that my client makes money off of traffic generated from its troglodytic users scraping content, and looks the other way with a smirk. It just doesn't matter. Right often doesn't prevail in our legal system. When it does, it is often ruinously expensive and unpleasant to secure. And on the way I will humiliate you, delve into private irrelevancies, harass your business associates and family, disrupt your sleep, stomp on your peace of mind, and consume huge precious swaths of your life. And, because the system is so bad at redressing frivolous lawsuits, I'll get away with it even if I lose — which I won't for years. Yield — stand and deliver — or suffer."

Our system privileges Charles Carreon to issue that threat, rather than jailing or flogging him for it. And so Carreon supports bullying like that. He's got a license to do it. He knows that his licensed threats — coming, as they do, on the [slightly odd] letterhead of a lawyer — inspire far more fear and stress than the complaints of a mere citizen, and by God he plays it to the hilt.

By contrast, Charles Carreon doesn't like shows of force that you or I can muster. "I'm completely unfamiliar really with this style of responding to a legal threat," he sniffs. There's a whiff of Paul Christoforo of Ocean Marketing in there — the sentiment "how was I to know that I was picking on someone stronger than I am? Is that fair?" But what he means is "if the people I threaten don't have to dig into their pockets to go hire a lawyer, and spend unpleasant hours with that lawyer, and lay awake at night worrying, and rely on a lawyer who is part of my privileged culture, but can stand up for themselves . . . how can I intimidate them so easily?" Perhaps some rude Oatmeal followers did actually send true threats or abuse to Charles Carreon's office — which I condemn. That's morally wrong and not helpful to the cause of free speech; it's harmful. But I fail to see why Charles Carreon sending that threat letter is more legitimate, admirable, or proper than ten thousand Oatmeal fans sending back the message that Charles Carreon is a petulant, amoral, censorious douchebag. It doesn't take lawyers, it doesn't take law school, it doesn't take any special privilege conferred by the state — it only takes a robust right of free expression — sending it back by blogging it, tweeting it, posting it on Facebook, and posting it in comments on forums. Charles Carreon has power derived from an inadequate legal system and letters of marque from the State Bar; The Oatmeal has the power of goodwill and community respect earned by talent. There's no reason to exalt Carreon's power and condemn The Oatmeal's.

Not everyone agrees, and Charles Carreon's whine of "mob psychology" is a cri de coeur to the contrarians: the people who think the Streisand Effect is too mean, who sympathize with Joseph Rakofsky over the people he sued for criticizing him, the people who sympathize with Crystal Cox even when she attacks the children of her opponents. Let's not let these people — who would like us meekly to pick up our phones and call our lawyers and start dishing out money and submit to the law's delay — detain us. (Professional contrarians would probably find a way to criticize The Oatmeal for calling out Charles Carreon, whilst simultaneously excusing FunnyJunk for sending its flying monkeys to abuse The Oatmeal when its proprietor complained last year.)

I'm not saying the law has no value. It does. The rule of law is important — especially in resisting the powerful. And getting legal advice is a good thing. Those are reasons that I encourage lawyers to offer pro bono help to bloggers hit with bogus legal threats. But the internet can help shift the balance of power away from professional bullies like Charles Carreon to the people they bully. Let it be so. Don't threaten violence, and expel and condemn those who do. Don't engage in actual harassment — like abusive telephone calls — or endorse those who do. Do get legal advice when you can. But name and shame. Call out censorious thuggery. Stand up against FunnyJunk and Charles Carreon and their ilk by writing about them and spreading the word about them. And if they can dish it out but can't take it? Tough shit.

Edit to add: from commenter desconhecido, a hilarious and ironic blast from Carreon's past: "Please don’t take me for a copyright hawk, but this seems like a ruling that benefits a company that has made a habit of turning other people’s work into their payday, and is being encouraged to keep on doing it."

Second Edit: Randazza has a link to The Oatmeal's attorney's response letter, which is quite good.

Last 5 posts by Ken White

158 Comments

149 Comments

  1. Garrick  •  Jun 13, 2012 @5:01 am

    Well-said, Ken. Thanks for shining a light on this nasty little corner of the internets.

  2. John Kindley  •  Jun 13, 2012 @5:46 am

    As a contrarian, let me nevertheless say that I in general approve of the tactic you describe, of jumping on the bandwagon so to speak. But it is imperative on the jumper before he jumps to exercise some independent thought. It is not enough to simply say that the enemy of my friend is also my enemy. Sometimes our friends are wrong. In this post for example you say that Crystal Cox attacked the child of her enemy. In my opinion this isn't true. She registered the domain name containing the name of the child of her enemy. One can speculate that she intended to use the domain name to attack the child, but to my knowledge she has never done so. Registering that domain name was indeed a bad move on her part, because it allowed her enemies to portray her as a monster who goes after the children of her enemies. All of a sudden the events that led her to become so angry become irrelevant, because nothing justifies attacking the child of one's enemy, even though she had not attacked the child of her enemy.

  3. TomB  •  Jun 13, 2012 @5:55 am

    John, there is a simple, universal rule in this world. When in the middle (or beginning, or end) of a dispute, you never, ever, EVER involve children. Registering a domain name with a child's name and waving it in front of the parent is, by definition, involving a child in a dispute amongst adults.

    It. should. never. be. done.

  4. Ken  •  Jun 13, 2012 @6:15 am

    John, I think you can only adopt that interpretation of Crystal Cox's actions by willfully ignoring her past actions — like her written, proven extortion. And I can see no possible non-thuggish reason to register the domain name of an enemy's child. But if you prefer, I can re-open comments on the Cox post to discuss it.

  5. TJIC  •  Jun 13, 2012 @6:15 am

    > If this were an 80-year-old probate lawyer, I could write this off as culture shock.

    Been there, done that.

    http://www.daily-nonsense.com/Blog/copyright-confusion-escalates-hilarity-ensues

  6. Grandy  •  Jun 13, 2012 @6:15 am

    John, your grand show of saying nothing was almost as good as Prometheus'.

  7. TJIC  •  Jun 13, 2012 @6:16 am

    @JohnKindley:

    > One can speculate that she intended to use the domain name to attack the child, but to my knowledge she has never done so.

    If a woman pulled a pistol on my child, it's POSSIBLE that it's actually unloaded and she intend on using it to brush a bee that's just landed off the child.

    On the other hand, that's not how I'd interpret it.

  8. TJIC  •  Jun 13, 2012 @6:17 am

    @Grandy

    > John, your grand show of saying nothing was almost as good as Prometheus'.

    Prometheus' visuals were better.

    John's character motivations made more sense.

    It's a tie.

  9. Justin D. Jacobson  •  Jun 13, 2012 @6:21 am

    I agree with everything you've said, including this: "There's no reason to exalt Carreon's power and condemn The Oatmeal's."

    What I don't understand is, given your premise, why you think it is okay to exalt The Oatmeal's power and condemn Carreon's. We need to be careful about excusing conduct simply because we like the person doing it or find their comics humorous.

    "Bullying" shouldn't be condoned regardless of the form it takes or the person who does it.

  10. Ken  •  Jun 13, 2012 @6:26 am

    Justin: well, for one thing, Carreon's power represents the ability to use the force of the state against an individual for his speech, and take advantage of a system that does a poor job of protecting defendants from extortion and of separating merit from not-merit.

    By contrast, The Oatmeal's power involves only encouraging readers to express themselves. No state power is involved. The Oatmeal's readers' speech cannot force Carreon into a distant court, force him to surrender papers, force him to answer questions under oath, or force him to pay tens or hundreds of thousands of dollars in attorney fees.

  11. G Thompson  •  Jun 13, 2012 @6:28 am

    @John, I seem to remember a month or so that you stated unequivocally that you were going to stay neutral on this whole sordid affair about Crystal Cox so that you too don't get forced down the rabbit hole or something to that effect? Or was that my imagination? http://www.peoplevstate.com/?p=1989 – nope seems it was real

    Your intelligent, you understand about intent, you understand about maliciousness and threats that people like Crystal keep doing and how they try to socially engineer through subtlety acts of extortion and fraud whilst acting like they themselves are so altruistic so that some people who should know better and should know all about the psychology of con artists all of a sudden think that these malicious individuals (who are also bat shit crazy and slightly psychotic) are so hard done by just because they have taken the time to stroke the ego's of the fools they have now conned.

    As for the topic of this post, I suspect this lawyer is now understanding that maybe the law is beginning to evolve into it's original premise of "no fear nor favour" and what the owner of the Onion wrote back and did is up there, and might be even the US (or Internet at least) equivalant of that famous reply in Arkell v. Pressdram (1971) [unreported UK ] http://www.nasw.org/users/nbauman/arkell.htm

  12. TJIC  •  Jun 13, 2012 @6:41 am

    @Ken:

    > Carreon's power represents the ability to use the force of the state against an individual for his speech…The Oatmeal's power involves only encouraging readers to express themselves.

    This.

    In my legal contretempts 18 months ago, I bore no ill will to customers who found my opinions objectionable and decided not to do business with me. Good for them! Spend your money where you will – that's freedom.

    On the other hand, I have nothing but seething rage for the armed statist bullies who threatened me, lied to me, implicitly held incarceration over my head, tried to trick me, tried to use bull crap laws against me, etc.

    The power of social disapproval and loss of commerce is just and good. It's part of society.

    The power of government intimidation is illegitimate, immoral, and evil.

  13. Mad Rocket Scientist  •  Jun 13, 2012 @6:50 am

    Bullying is about power. A bully has power, knows he has power, knows how much power he has, is secure in that power, & most importantly, is willing to exercise that power to his own ends.

    An attorney who knows how to use the power of the law and, due to the nature of our legal system, is secure in the knowledge that the law will most likely work for him whether he be right or wrong, can be a bully.

    An internet artist/comedian has only his talent & his pulpit/website. The power of The Oatmeal lies not in his knowledge of the law & how to manipulate the system, but rather in his wit, and the willingness of his fans to rally to him. Until now, that willingness has never been tested. His cause is (IMHO, righteous), and thus his fans rally in his defense. If he tried to rally his fans again for a different reason, one not so righteous, he may find himself bereft of power. The power of The Oatmeal is fickle & not secure.

  14. Mannie  •  Jun 13, 2012 @6:57 am

    There's a proverb that dates back to the Good Old Days(tm) (Oh, how I miss the Diptheria!) when these battles were fought out in the Letters to The Editor column.

    "Beware of getting into a letter writing battle with someone who buys ink by the barrel."

    We buy our pixels by the barrel. :-)

  15. W. J. J. Hoge  •  Jun 13, 2012 @7:03 am

    Lawyers might want to remember the motto on the masthead of my website: Never pick a fight with a man who buys pixels by the terabyte.

  16. Justin D. Jacobson  •  Jun 13, 2012 @7:19 am

    @Ken:

    First, you're engaging in some serious hyperbole. Carreon isn't Emperor Palpatine. He's an attorney. There are literally hundreds of thousands of attorneys, and anyone can hire them. He's not a member of some elite class afforded special powers reserved for only a few. I certainly understand that there can be imbalances of power when dealing powerful corporations and small individuals. But that's clearly not the case here. In fact, we know that The Oatmeal has had access to legal counsel during this specific situation.

    Second, you write: "By contrast, The Oatmeal's power involves only encouraging readers to express themselves. No state power is involved. The Oatmeal's readers' speech cannot force Carreon into a distant court, force him to surrender papers, force him to answer questions under oath, or force him to pay tens or hundreds of thousands of dollars in attorney fees."

    You seem to be suggesting that the response The Oatmeal elicited was unexpected and merely fortuitous. This flatly contradicts the whole premise of the post, i.e., that Carreon was an idiot for messing with the power of the Internet. True, The Oatmeal can't assert any force in the legal arena (though he could, of course, hire an attorney to do so on his behalf). However, he could disparage the man professionally, cause him to be inundated with hateful speech, and cripple his on-line presence.

    Ken says, "Perhaps some rude Oatmeal followers did actually send true threats or abuse to Charles Carreon's office — which I condemn." While it might be contemptible, it was not unexpected.

    Look, I like The Oatmeal. Ironically, I'd never heard of FunnyJunk before this nonsense. I understand that this response should have been obvious to Carreon. However, what would have happened had The Oatmeal merely responded with a private letter responding to Carreon's claims?

  17. JRM  •  Jun 13, 2012 @7:20 am

    But Mr. Carreon's feelings were hurted. The Oatmeal is some sort of Internet Thing, which doesn't have feelings and just acts hurtful. Words can hurt just as much as stepping on shattered glass. (FN1)

    Even if Oatsy didn't call for a direct attack of the clones, its words were hurtful enough. Self-esteem is very important to self-actualization, and injuring the self-esteem of Mr. Carreon – which he has so clearly tried to develop – is not good for society. He should, of course, sue Oatsville personally:

    Count 1: Intentional Infliction of Emotional Distress. It could not be more clear that Oatguy is deliberately feeling-hurting.

    Count 2: Libel. It's a deliberate lie to say someone isn't competent just because some of the legal or factual assertions they make don't completely match your precious objective reality.

    Count 3: Interference with Prospective Business Advantage. How will Mr. Carreon get paid from any of his employers if people think he's a marginal, whinging idiot? How is this fair?

    Count 4: Mendacity Corum Nobis. "Corum Nobis" is Latin, and you should always have one charge in Latin. I bet Oatmuffin doesn't even know Latin and he'll have to hire a lawyer and then at least poor Mr. Carreon won't have to deal with Oats4breakfast.

    Anyway, I hope this helps Mr. Carreon.

    FN1: In my actual experience, stepping on glass is much more painful, but my mother assured me it's words that are hurtful.

  18. JRM  •  Jun 13, 2012 @7:28 am

    Justin/7:19 a.m.:

    Carreon would have felt free to make more baseless allegations against less-savvy individuals and extort settlements. (Not Crystal-level extortion, but legal extortion.)

    I'm not against legal threats with some basis to them, but completely baseless legal threats deserve to be crushed. Sunlighting nonsense legal claims is a good thing.

    And Oatmeal didn't want people to personally pester Carreon, I don't think. I think he did want Carreon to be shamed. Getting hammered in the press is a legitimate result of this, and Oats' actions in getting that to happen serves as a solid deterrent to further nonsense by Carreon and others who would be him.

    (Or maybe Carreon should sue. See above for my true feelings. Or not.)

  19. Patrick  •  Jun 13, 2012 @7:38 am

    However, what would have happened had The Oatmeal merely responded with a private letter responding to Carreon's claims?

    He'd have gone to his client and asked, "Do you want to file suit at my hourly rate?"

    On Monday Carreon was credibly threatening litigation. Do you believe Carreon wants to sue The Oatmeal now that he's had a taste of this very bitter medicine?

    Do you believe that even an astronomic fee could convince him to file suit against The Oatmeal, today?

  20. Jordan  •  Jun 13, 2012 @7:38 am

    All the instances of FunnyJunk reproducing the Oatmeal's content are broken.

    I hope FunnyJunk's lawyer didn't instruct them to delete those links, as doing so could be instructing a client to destroy relevant evidence…

  21. Justin D. Jacobson  •  Jun 13, 2012 @7:51 am

    @JRM:

    There are two separate issues here: The tactics deployed by both parties, and the substantive legal issue. I've been avoiding the latter one like the plague. I note that Ken hasn't really addressed this either. But, I will say this: The allegations are not nonsense, and they are not patently false.

    If we set the Wayback Machine to 1984, we used to have something called the Betamax, which was among the earliest VCR's. Universal Studios sued Sony (the makers of the Betamax), alleging that the device was nothing more than a machine for infringing on copyright. The Supreme Court issued an opinion that rejected the argument under the idea that it could be used for the valid purpose of "time-shifting". This landmark decision has been called on recently to defend file-sharing sites such as YouTube, BitTorrent, and, yes, FunnyJunk. (I don't expect a lot of you take issue with BT; how many of you have used it?)

    The basic argument is this: FunnyJunk (and similar sites) do not post original content but merely provide a platform for others to do so. This has generally been found to be an acceptable method provided that the site takes down offending content when it is noted. Whether or not FunnyJunk is doing this or not, I don't know. However, they claim that they are. Ironically, they did take down everything with "Oatmeal" in it, which the Oatmeal complained of because it only left unattributed material. He then notified them of specific pages where his content remained. It appears that FunnyJunk has now removed those pages as well. Based just on these facts, FunnyJunk would appear to be acting properly. (Whether or not they did so in a timely manner, I don't know.)

    The primary issue complained of in Carreon's initial letter is that The Oatmeal made a false accusation of willful copyright infringement. If the allegations are true, it is indeed defamation. In my opinion The Oatmeal's statement that "[FunnyJunk has] practically stolen my entire website and mirrored it on FunnyJunk" does not rise to the level of defamation. But it would be wrong to say the claim is baseless, nonsense, or patently false.

  22. Xenocles  •  Jun 13, 2012 @7:53 am

    "He's an attorney. There are literally hundreds of thousands of attorneys, and anyone can hire them. He's not a member of some elite class afforded special powers reserved for only a few."

    Really? The license to practice law confers no privileges?

    As for the rest, the "I'm only representing my client" bit only works for defense attorneys. When a plaintiff's lawyer takes a case he has the moral duty to evaluate its merit and its effects on the defendant, just as mercenaries don't evade responsibility for murdering people because that's what the job was.

  23. Justin D. Jacobson  •  Jun 13, 2012 @8:00 am

    @Patrick:

    That proves the point. If the lawsuit were indeed credible or, let's say for sake of argument, even fully appropriate. The fact that he has been bullied into not pursuing it because of Internet pressure seems wrong to me.

    @Jordan:

    Now they're in trouble for taking down the offending material as The Oatmeal requested? In any case, it wouldn't be any kind of spoliation problem for taking down the pages provided they have preserved the material elsewhere.

  24. Justin D. Jacobson  •  Jun 13, 2012 @8:08 am

    @Xenocles:

    I was addressing Ken's hyperbole. Of course a license to practice law confers authority. But we're just attorneys–not super-villains.

    Yes, an attorney must act ethically even in the zealous representation of his client. But, "murdering people"? We're awfully close to Godwin's Law territory, people.

  25. Patrick  •  Jun 13, 2012 @8:10 am

    Justin, what precisely do you propose to be a remedy for inappropriate bullying of attorneys by the internet? Gag orders as prevail in the United Kingdom?

    Note that I don't share your assumption, for the sake of argument, that this claim was fully appropriate. I drew my own conclusions after reading Carreon's letter and The Oatmeal's response. The case has been tried in the court of public opinion, and Carreon and Funnyjunk have lost. This is fully appropriate.

  26. Ugh can not remember  •  Jun 13, 2012 @8:19 am

    TJIC • Jun 13, 2012 @6:15 am – unfortunately, the link you provide has lots of dead links on it, so it is difficult to follow the story. I read it when it happened, but I wish the links there still worked. I was a good read.

  27. Justin D. Jacobson  •  Jun 13, 2012 @8:19 am

    That's a great question, Patrick. I'm not proposing a remedy at all. I certainly do not propose gag orders or censorship. On the other hand, resorting to the court of public opinion is itself problematic. It's great when the court of public opinion is on your side. But the public is often on the "wrong" side. It ends up as merely a different sort of bullying.

    What I'm proposing is simple: civility–in both directions.

  28. Ken  •  Jun 13, 2012 @8:25 am

    He's an attorney. There are literally hundreds of thousands of attorneys, and anyone can hire them. He's not a member of some elite class afforded special powers reserved for only a few. I certainly understand that there can be imbalances of power when dealing powerful corporations and small individuals. But that's clearly not the case here. In fact, we know that The Oatmeal has had access to legal counsel during this specific situation.

    The existence of hundreds of thousands of attorneys does not ease the abusiveness of the legal system. It enhances it. It means that, because of the competition for legal work, it is easier to find an attorney to do something malicious, frivolous, meritless, or unethical.

    Also, the very problem with the legal system is that the freedom to hire a lawyer does not protect you from the defects in the system. Hiring a lawyer is important — often essential to protecting your rights — and I usually highly recommend it. However, it's a gigantic cost. A lawyer, in our system, means that you may eventually prevail — or that the amount of tribute you're forced to pay to bandits is moderated. But in a system that does a bad job at terminating meritless suits early, does a poor job at making plaintiffs and plaintiffs' lawyers pay the costs of meritless suits (thus offering little incentive not to file them), and a bad job at managing the costs of litigation as it is ongoing, getting the best lawyer in the world doesn't mean you won't get screwed, even if you win.

    You seem to be suggesting that the response The Oatmeal elicited was unexpected and merely fortuitous. This flatly contradicts the whole premise of the post, i.e., that Carreon was an idiot for messing with the power of the Internet. True, The Oatmeal can't assert any force in the legal arena (though he could, of course, hire an attorney to do so on his behalf). However, he could disparage the man professionally, cause him to be inundated with hateful speech, and cripple his on-line presence.

    No, nothing I said can be reasonably read to imply that the result The Oatmeal elicited was unexpected to him. Tell me — why should one not disparage someone professionally if they do something professionally disgusting?

    Ken says, "Perhaps some rude Oatmeal followers did actually send true threats or abuse to Charles Carreon's office — which I condemn." While it might be contemptible, it was not unexpected.

    Yes, if many people read you on the internet, and you point out somebody's bad behavior on the internet, some small percentage of them is going to act badly. (What percentage is open to dispute: I see no reason to take at face value the characterizations of the butthurt, like Carreon, and false flags are always an issue.) However, I see this truism increasingly deployed to suggest "you shouldn't call out bad behavior because some people will act badly when you do" — in other words, "shut up and take the bad behavior." I don't agree.

    However, what would have happened had The Oatmeal merely responded with a private letter responding to Carreon's claims?

    Carreon, seeing success, would have continued to threaten and bully. The Oatmeal, if he responded through an attorney, would have unfairly incurred not insignificant costs.

    But tell me — why do you ask that question? Why not ask "what would have happened if the attorney had taken a different approach?" Why not ask why the attorney didn't send a letter saying "my client has taken great strides to eliminate copyrighted material, and feels your cartoon is, based on those strides, harmful and unfair. Could we please discuss it?" rather than opening with a demand? Had he done that, and The Oatmeal published it and ridiculed it, I would have thought The Oatmeal was being a dick.

  29. Ken  •  Jun 13, 2012 @8:33 am

    Also, any discussion of The Oatmeal's year-old post that generated Carreon's legal threat is not complete without a reminder of how FunnyJunk responded to that post.

    I would summarize it thus:

    1. The Oatmeal makes post complaining about FunnyJunk being run on a profit-from-infringement model.
    2. FunnyJunk posts, to its flying monkeys, a "he wants to shut us down! contact him anyway [sic] you can!" post.
    3. A year later Carreon threatens to sue The Oatmeal for his post, demanding that he take down his content.
    4. The Oatmeal posts a public response.
    5. Now some are saying "that was wrong to call FunnyJunk and its lawyer out publicly!"

    You can see why I am unimpressed by #5.

  30. John Kindley  •  Jun 13, 2012 @8:35 am

    GThompson, I am the only blogger I'm aware of who appeared to "sympathize" with Crystal Cox (unless you count her own attorney, whom Ken recently rightly referred to as a First Amendment "demigod"), so I felt prompted to respond to the post's reference to her sympathizers.

    Grandy, You say my comment said nothing. I am on record as being skeptical of internet circle-jerking and "internet-mobbing." My comment was intended as something of a corrective to that. I generally approve of and applaud Ken's Popehat Signals and his rallying of the internet troops to worthy causes, with the stated caveats. It's effective. It can counter genuine bullying. If I hadn't been slacking off on blogging over the last month or so I would have or probably should have lended what little support my little blog could offer to these efforts. Sometimes mobbing is warranted and justified. (Circle-jerking, on the other hand, is usually never a good idea.)

    Ken, I have to take exception to the suggestion that I am "willfully ignoring" her past actions, although admittedly I haven't done an in-depth study of everything she's ever done. But if we're talking about the same two alleged instances of extortion, the letter to one attorney and the email to another attorney, I would find her "not guilty" of extortion if I was on a jury, based on that letter and that email. That means I have a reasonable doubt it was extortion. That's not willful ignorance. I understand that meeting that standard is not required in order to opine on the internet that something looks like extortion.

  31. Justin D. Jacobson  •  Jun 13, 2012 @8:37 am

    @Ken: You're not making any distinction between FunnyJunk and Carreon. The lawyer's C&D was not public. The Oatmeal escalated as to Carreon when he went public.

    This was my point from the outset: Why is 99% of the venom directed at Carreon and 1% at FunnyJunk?

  32. Grandy  •  Jun 13, 2012 @8:39 am

    Jordan, the following is mere speculation on my part, that said what I took from the response posted at TheOatmeal was that said links were live when it was posted (And it has since been updated to note that the links are now broken, strengthening my belief). I can't speak to the legal ramifications.

  33. Jordan  •  Jun 13, 2012 @8:42 am

    @Justin

    "Now they're in trouble for taking down the offending material as The Oatmeal requested? In any case, it wouldn't be any kind of spoliation problem for taking down the pages provided they have preserved the material elsewhere."

    FunnyJunk is threatening a lawsuit for defamation. Truth is a defense to defamation. If FunnyJunk in fact linked to the Oatmeal's content, wouldn't you agree that is relevant to a defamation suit…?

  34. Ken  •  Jun 13, 2012 @8:42 am

    Justin: again, I don't see why the recipient of a censorious threat letter has any obligation, moral, legal, or etiquette, to keep a threat private. Keeping it private enhances its effectiveness. By contrast, publicizing threat letters helps the public recognize that it not necessary to yield to them, eroding their general effectiveness and eroding attorney power to bully.

  35. Jordan  •  Jun 13, 2012 @8:43 am

    "You're not making any distinction between FunnyJunk and Carreon. The lawyer's C&D was not public. The Oatmeal escalated as to Carreon when he went public. This was my point from the outset: Why is 99% of the venom directed at Carreon and 1% at FunnyJunk?"

    1. Not public? When you write a letter, unless it's privileged, it's public.

    2. Because lawyers are supposed to counsel their clients and say "Gee, threatening a defamation suit where you linked to a bunch of their stuff is probably a stupid idea. It will get you into more trouble than it's worth, and you'll look silly."

    Kind of like what happened here…

  36. strech  •  Jun 13, 2012 @8:45 am

    The Oatmeal … could disparage the man professionally, cause him to be inundated with hateful speech, and cripple his on-line presence.

    Ken says, "Perhaps some rude Oatmeal followers did actually send true threats or abuse to Charles Carreon's office — which I condemn." While it might be contemptible, it was not unexpected.

    1) God forbid the Oatmeal "disparage the man professionally" … it's not an illegitimate exercise of power to criticize someone for sending you half-baked legal threats.

    2) The Oatmeal did not "cripple his on-line presence". He did. As Ken put it when talking about political correctness,

    But if you act like a jackhole and people call you on it, you are not a victim of political correctness. You are a victim of being a jackhole.

    What's crippling his online presence is people talking about his behavior.

    3) The behavior of asshats would not be unexpected, if it happened. That doesn't mean The Oatmeal would be responsible for it. He didn't send threats. He didn't call for threats. He didn't even ask people to contact Carreon or FunnyJunk.
    To hold him accountable for the predictable behavior of asshats would give asshats a bizarre reverse heckler's veto. (I'm talking in a moral sense here – you seem to be critical of the Oatmeal fighting back the way he did because of the actions of 3rd parties).

  37. Jordan  •  Jun 13, 2012 @8:52 am

    Delicious irony:

    FunnyJunk tried to pull this on the Oatmeal -

    http://theoatmeal.com/blog/funnyjunk2

  38. Grandy  •  Jun 13, 2012 @8:52 am

    Yes, John, I did accuse your post of lacking substance. Because while the words all mean something together they are less than the sum of the parts. Reading the registration of a child's domain name as innocuous or even somehow "neutral" is absurd and possibly disingenuous (I extend you the benefit of a doubt here and don't assume the latter). There is no getting around this. That particular comment is rhetorical nonsense.

  39. Dan Weber  •  Jun 13, 2012 @8:54 am

    I do worry about the power of the mob. Just because The Oatmeal wasn't using state power doesn't mean there's nothing to worry about.

    But I was impressed that Oatmeal blocked out the lawyer's personal information when he reposted the letter. (I saw it within about 45 minutes of the original posting so I assume I saw the original version.) If any schmuck wanted to track the lawyer down to harass him, Oatmeal at least made them work to do it.

  40. Ken  •  Jun 13, 2012 @8:57 am

    That proves the point. If the lawsuit were indeed credible or, let's say for sake of argument, even fully appropriate. The fact that he has been bullied into not pursuing it because of Internet pressure seems wrong to me.

    Why?

    He's only being "bullied" from filing in the sense that people are lambasting his threat, and any filing would be highly unpopular. Why should a client — or a lawyer — be free from social comment on their lawsuit?

    I remember a few years ago there was a couple — the husband a pastor — who encountered a little blind girl in public. The wife deliberately stood in front of the girl, who walked into the wife. The husband and wife sued, claiming negligence by the girl's parents, as I recall. The media picked it up, and the public reaction was swift and merciless. The couple withdrew the suit.

    Was that bad? Was that wrong?

    Sometimes the public's condemnation of a lawyer's behavior will be wrongheaded and evil. A good example is one I believe you brought up on twitter — the contemptible and un-American attacks on lawyers who represented Gitmo detainees pro bono. But the remedy for that is more speech. If people believe that Carreon's actions are actually praiseworthy, they can say so, and counter the speech of The Oatmeal's supporters. But that does not mean that the process of public comment on lawyer behavior is "wrong."

  41. joe schmoe  •  Jun 13, 2012 @8:58 am

    @ John Kindley

    "In this post for example you say that Crystal Cox attacked the child of her enemy. In my opinion this isn't true. She registered the domain name containing the name of the child of her enemy."

    You have obviously never been stalked before.

  42. Justin D. Jacobson  •  Jun 13, 2012 @9:06 am

    Oh boy. This is quickly spinning out wider than I can manage. Let me just reiterate my points in a more succinct manner:

    1) Oatmeal's fundamental complaint about FunnyJunk is perfectly valid. The site contained improperly posted material. He had a right to be upset about it and respond.

    2) The Oatmeal's initial response was reasonable. However, it contained language that would naturally be troubling to FunnyJunk, i.e., the accusation of theft on the part of FunnyJunk.

    3) FunnyJunk's response, i.e., to disparage The Oatmeal to its users, was improper and unnecessarily escalated the situation.

    4) Carreon's letter was generally reasonable and well within the norms for legal practice. However, it too was unnecessarily heavy-handed and escalated the situation. (In particular, I think the demand for money was a step too far.)

    5) The Oatmeal was understandably angered by Carreon's escalation. However, The Oatmeal's response further escalated the situation by personally attacking Carreon in an inflammatory way.

    6) The response to FunnyJunk, Carreon, and The Oatmeal is driven more by identity than by their respective actions.

    That's my take.

  43. Ken  •  Jun 13, 2012 @9:12 am

    John: I'm torn between wanting to respond and not wanting to derail further. Let me just ask this: when you elect to reserve judgment on whether or not Crystal Cox's registration of domains in the name of Randazza's wife and three-year-old daughter was part of an attack on Randazza through them, do you take into account the sorts of things she had previously written about Randazza's wife?

    I can see an advocate for Crystal Cox, seeking to defend her, constructing an argument about how it requires speculation to determine why Cox registered those domains, and that we shouldn't speculate. But I find it very difficult to understand how anyone not acting as her advocate can reach that detached conclusion, given her past actions.

  44. Justin D. Jacobson  •  Jun 13, 2012 @9:13 am

    @Ken

    Short version: A lawsuit should be judged on its merits by an impartial arbiter–not based on the the popularity of the parties. I'm wary of considering summaries of cases for which I do not know the facts, but Carreon's response in this instance is not equivalent to the woman suing the blind girl's parents.

    Let me put this another way: Do you think The Oatmeal did anything wrong in this situation?

  45. Ken  •  Jun 13, 2012 @9:19 am

    Short version: A lawsuit should be judged on its merits by an impartial arbiter–not based on the the popularity of the parties.

    But it will be — if he files suit. It will be "judged" — in the sense of "adjudicated" — by a (purportedly) neutral party, the judge and jury. You seem to be implying that there is a public obligation not to form opinions of cases. I think that sometimes the public judges badly, and that critique of the public's judgments are to be encouraged, but I don't believe anyone has an obligation not to speak their mind on the merits of a case.

    Let me put this another way: Do you think The Oatmeal did anything wrong in this situation?

    In the sense of morally or ethically wrong or non-frivololously legally actionable? No. Not that I have seen so far.

  46. perlhaqr  •  Jun 13, 2012 @9:24 am

    "You're a jerk, Carreon. A complete kneebiter."

  47. Grandy  •  Jun 13, 2012 @9:28 am

    Dan Weber, yes I agree it's an issue. Ken has touched on the issue many times here as you well know. Here's the thing, I'm not really interested in just saying "beware the mob" and making the evil eye every time a situation like this comes up (I don't think you are doing this, mind).

    I can't speak to all the particulars here but TheOatmeal can and should encourage people not to be douche bags (he may know his audience well enough that he doesn't feel it's necessary; I might argue that since there is always the lunatic fringe, it's a good idea to do it anyway). That said, Camereon deserves public ridicule. We can deal with the "pro Oatmeal" (or Anti Cameron, as it were) lunatics as they come up. And we can do all of these things at the same time and should.

  48. Justin D. Jacobson  •  Jun 13, 2012 @9:30 am

    I feel like this is winding down. I wanted to thank everyone for the high level of discourse. You guys have given me lots to think about, and I've modified my position based on it. I hope I've done the same. See, it is possible to argue civilly on the Internet!

  49. joe  •  Jun 13, 2012 @9:31 am

    Sorry Justin – not buying it.

    In large part because I cannot see how FunkyJunk was actually harmed by The Oatmeal’s statement that FunkyJunk “practically stole his website” To ask for $20,000 in damages assumes there are actual damages. Where are those damages enumerated? I saw nothing in Carreons letter describing any specific or provable loss of advertising revenues or other damage to FunkyJunks business. The former was never provided and later would have to assume the 12 year old boys and other monkeys that participate on FunkyJunks site actually understand copyright infringement or that if they did that they actually give a damn – clearly they don’t and didn’t. Seems to me no provable damages no lawsuit.

    Furthermore, to send out such a letter, which was liberally sprinkled with other false accusations – such as SEO manipulation, etc. was clearly designed to do nothing more than create fear that The Oatmeal was in serious trouble and that he should cave in (I mean allow himself to be extorted) out of $20,000. Such action by any lawyer deserves to be publicly called out and ridiculed in hopes they will actually learn not to do it again.

  50. joe  •  Jun 13, 2012 @9:32 am

    Cool – I hit the post button on my last comment before your post – so don't take it the wrong way please.

  51. Ken  •  Jun 13, 2012 @9:37 am

    Justin: thank you for your willingness to argue an unpopular position politely.

    And let me modify my last answer to you just slightly. I would have been happier if The Oatmeal had added an explicit "don't go be asses like FunnyJunk asked its crew to do" at the end. Nice, though not required.

  52. alexa-blue  •  Jun 13, 2012 @9:38 am

    @ Justin: "Escalation" is pretty vague. Everyone on the internet seems pretty willing to escalate by calling someone a "fag" or "son of a bearlover" (obviously some have more panache than others). Whining, mocking, gnashing of teeth is mundane and if that's all this had been it would been quickly forgotten and ignored by pretty much everyone.

    Heavy-handed, censorious demands for $20,000 cash or face lawsuit probably deserve a different verb.

  53. Xenocles  •  Jun 13, 2012 @9:43 am

    "But, "murdering people"? We're awfully close to Godwin's Law territory, people."

    You can use any act in their continuum of force if you're squeamish. Except by degree, how does it differ from Carreon's demand that The Oatmeal stop complaining and pay $20K or face a potentially ruinous lawsuit? There's no such thing as absolution by way of job description, as you seem to recognize.

  54. Justin D. Jacobson  •  Jun 13, 2012 @9:53 am

    Not at all, Joe.

    Let's be super practical for a minute here. Obviously, I don't know with certainty, but I can all but guarantee Carreon's thinking was along these lines: He sends the letter, The Oatmeal takes down the bit about theft, and the two parties never talk to each other again. Everyone goes on their merry way. I'm sure Carreon had no expectation of actually filing a lawsuit. I'm sure he had no expectation of actually getting paid.

    Yes, that's the way this stuff usually goes. No, it's not a great way of handling things. I do have some sympathy for Carreon, as he got a shitstorm he clearly was not expecting–even though he brought it on himself with his heavy-handedness.

    As a separate, technical matter. Defamation is an intentional tort. Even if a plaintiff cannot demonstrate actual damages, they could be awarded nominal damages and punitive damages. And the real issue of actual damages would not be with the users anyway; it could be as simple as loss of advertising revenue.

    (NOTE: I am not asserting that FunnyJunk's case was a winner or that they would be able to sustain any such claim for damages. I'm only discussing in the hypothetical here.)

  55. Xenocles  •  Jun 13, 2012 @10:01 am

    But here's the thing, Justin: if I hold a gun to your head it doesn't matter if I know it's not loaded. When you issue a threat it's entirely reasonable for the target and any observers to take it at face value. Arguably the threat is intended to be taken at face value – if not, what purpose does it serve? I mean, you don't go all in and immediately turn over your 2-7.

  56. mojo  •  Jun 13, 2012 @10:09 am

    The Normal curve applies to lawyers too. And I'd say we're into "low-end tail" territory here.

  57. Justin D. Jacobson  •  Jun 13, 2012 @10:13 am

    @Xenocles:

    It's not like a gun to the head. It's just not. In the same way it's not like merely threatening to take away a child's toy. It's somewhere in between best described by what it actually is: A threat to file a lawsuit.

    The Oatmeal could have responded directly to the lawyer along these lines: I disagree with your letter. Nevertheless, I have modified the language in my post to make clear that I am not accusing FunnyJunk of willful trademark infringement. However, I do not believe your client has adequately addressed my concerns as outlined in my initial post. Please take down the following improperly posted material.

    No, it wouldn't have been as funny. That's why I'm a lawyer and not a web comedian.

  58. Xenocles  •  Jun 13, 2012 @10:24 am

    Some people respond to threats with full compliance. Some try to negotiate a compromise. Some will spit in your face. If Carreon truly didn't think that third path could happen then he's a fool.

    You seem to be uncomfortable with my hyperbolic analogies, and I can understand that. But I don't know what kind of lawyer you are if you don't understand that even defeated litigation can ruin a defendant. It's the very reason why settlements are so popular. Then again, some people are willing to look past the Pyrrhic part of a victory, and it seems like The Oatmeal is one of them (for now!).

  59. Ken  •  Jun 13, 2012 @10:31 am

    This discussion reminds me of a quote from an email I received from a defamation-threatener who was outraged that I wrote about his threat:

    You are supposed to shut down your articles out of respect and protocol. Then we discuss. I did my part as far as giving you proper notice.

    I'll let people guess who that was.

  60. Grifter  •  Jun 13, 2012 @10:36 am

    If I recollect, Justin, the Oatmeal gave them a list of links to examples of unattributed the Oatmeal comics, which they ignored and left up. They deleted only ones that attributed the Oatmeal, and have since had anything tagged "the Oatmeal" changed to "the fag", in addition to originally making false claims about the Oatmeal wanting to sue them. That seems as though it makes the Oatmeal's claims legit and non-defamatory?

  61. Justin D. Jacobson  •  Jun 13, 2012 @10:41 am

    @Grifter

    The issue, as I understand it, is that there would be no way for them to feasibly identify the offending, non-attributed posts. The Oatmeal did post a list of non-attributed links remaining, and those too have now been removed. There is a "copyright removal request" link on their site.

    I certainly agree that FunnyJunk's response was improper. However, it would not make any potential defamatory claims non-defamatory. (Again, not that I think The Oatmeal's comments were, in fact, defamatory.)

  62. Ken  •  Jun 13, 2012 @10:43 am

    Imagine, for a moment, the amount of time The Oatmeal would have to spend — or pay someone else to spend — to police FunnyJunk for misappropriated content, which is driving their traffic, which is making them money.

    It's not feasible. Which is their business model.

  63. Grifter  •  Jun 13, 2012 @10:44 am

    "have now been removed". But they weren't removed from the initial request, they were removed much later. During the time between the links were provided and they were still up, it was a fair comment to make.

  64. Justin D. Jacobson  •  Jun 13, 2012 @10:45 am

    @Xenocles:

    Maybe Carreon is a fool. I'm not ready to make that judgment, but that's not what I'm arguing in any case.

    Yes, litigation can be ruinous. But those are outliers into which movies are made. See, A Civil Action. By and large, it is not ruinous. Inconvenient, yes. Expensive, sometimes. But, in this particular instance, would not have been ruinous to The Oatmeal. He acknowledged his access to quality, free legal services.

  65. Justin D. Jacobson  •  Jun 13, 2012 @10:47 am

    @Ken:

    I get that. But the Betamax case says that's okay. I'm not sure what the point of that argument is. Do you think FunnyJunk should be shut down? If so, you'll have to shut down YouTube first. Of course, we love videos of piano-playing cats, so that's awkward.

  66. Justin D. Jacobson  •  Jun 13, 2012 @10:51 am

    @Grifter:

    I haven't been able to deduce the timeline between The Oatmeal's listing of the specific offending posts and their removal. Certainly, any unreasonable delay on FunnyJunk's part would warrant a response.

    Again, this goes back to the conflation of Carreon with his client. An attorney should never be tarred by the independent actions of their client.

  67. Linus  •  Jun 13, 2012 @10:56 am

    If you threaten me "privately", and I believe the threat is merit-less and assholy, and then I say so publicly, I'm guilty of "escalation"? What ethical duty, what moral duty do I have to not comment publicly on it? All I can hear in my head is "ooh, bad form Jack." The idea that unless you lie back and think of England you are exhibiting poor manners and "escalating" is mewling silliness.

  68. Justin D. Jacobson  •  Jun 13, 2012 @11:03 am

    @Linus:

    It's objectively escalation. I'm not saying it's always wrong to "go public", but it is an escalation. I'm not saying it's bad manners. I'm saying it makes the situation bigger and less likely to be resolved, which is bad. That can be outweighed by benefits, as others have pointed out, such as discouraging bad behavior in the future. The problem, which is a potential issue in this case, is that the public assessment can be driven by the identity of the parties not by the merit of their respective positions. I.e., Carreon is a douchebag attorney, and The Oatmeal is hilarious.

  69. John Kindley  •  Jun 13, 2012 @11:07 am

    Ken: Here's where we get to the "rabbit hole" in this conflict, down which I hesitated and hesitate to go further, and therefore declared my "neutrality." If this post by Cox was "beyond the pale," earlier actions by Randazza, which preceded and prompted this post, were arguably also beyond the pale. I interpret the post you linked to as an attack on Randazza, and on his decision to describe the event described in it, and about how that related to his "defense" of Limbaugh, rather than an attack on his wife. The way CC looked at it, according to her, Randazza had already put this story out there. CC obviously put a different spin on it, to make a rhetorical point related to Randazza's defense of Limbaugh. I personally think that rhetorical point is tenuous and strained. Honestly I don't see the harm done to Randazza's wife by that post, other than CC using a derogatory word to describe conduct already described by Randazza. It's not even clear from the post that CC herself believed that word should be used to describe that conduct. As far as the registration of the child's name, this was without a doubt intended as a giant Fuck You to Randazza, as in you were too damn dumb to register this name, as she has described her intent multiple times. But I seriously doubt that CC would ever have taken it a step further and used that domain name to talk about what she talked about in the post you linked to. After all, that post, as ugly as it was, didn't name the child.

    I don't relish "defending" either that post or CC's decision to register the domain name of the child, both of which I recognize were misguided and distasteful. But if we look at that post and that decision fairly and as not so beyond the pale as precluding any consideration of what went before, we can consider what went before. As CC saw it, her former potential counsel was cooperating with opposing counsel and trying to get her thrown in jail. That's pretty damn serious, and likely to really piss off even the sanest among us. But I don't know the details and the correctness of CC's perceptions on that score. This is why I described this situation as a rabbit hole, and a situation I'd rather not weigh in on. Honestly I'm not taking sides. I think there's two sides to this story. This wasn't going to be a bandwagon I was going to jump on. If that makes me a "sympathizer" of Cox, so be it.

  70. EH  •  Jun 13, 2012 @11:15 am

    Justin: A threat to file a lawsuit…unless they receive money. Why isn't that barratry?

    4) Carreon's letter was generally reasonable and well within the norms for legal practice. However, it too was unnecessarily heavy-handed and escalated the situation. (In particular, I think the demand for money was a step too far.)

    Do explain how these two statements are consistent. I can't think of any way in which "uneccessarily heavy-handed" and "generally reasonable" coexist, and in fact the (weasel) words used would seem to introduce a bit of the mutual exclusive thing.

    John Kindley:
    I am on record as being skeptical of internet circle-jerking and "internet-mobbing." My comment was intended as something of a corrective to that. I generally approve of and applaud Ken's Popehat Signals and his rallying of the internet troops to worthy causes, with the stated caveats.

    The stated caveat(s) being self-serving in that you have to not see it as circle-jerking?

  71. Ken  •  Jun 13, 2012 @11:16 am

    John: we're going to have to agree to disagree.

  72. CTrees  •  Jun 13, 2012 @11:50 am

    Interestingly, if you search FJ for "oatmeal," you get no results. However, if you search for, say, "bearodactyl," you get TONS of results which blatantly infringe on The Oatmeal's intellectual property.

    At least searches for "the oatmeal" no longer redirect to searching for "the fag," as FJ previously implimented.

  73. strech  •  Jun 13, 2012 @11:58 am

    Threatening a lawsuit is far greater escalation than anything the Oatmeal has done. That it's in a letter containing numerous transparently stupid statements clearly intended to intimidate while holding no legal force doesn't help this.

    Also, how would making it public make it "less likely to be resolved", given FunnyJunk's clear disinterest in doing anything about it without public pressure. And since your preferred solution includes "The Oatmeal takes down the bit about theft", it's explicitly worse, given that it's a historical comment that's pretty clearly accurate about FunnyJunk's business model.

    the public assessment can be driven by the identity of the parties not by the merit of their respective positions

    "can be"? Can you provide any evidence this actually occurring? And strictly on the merits –

    The Oatmeal has made several statements about FunnyJunk, all of which are pretty clearly accurate, started a charity fundraiser, and made a tasteless joke about bear sex.

    FunnyJunk has (a) lied about the Oatmeal's intentions and told its users to contact him, (b) had Carreon file an inane legal threat which deserves every bit of scorn it's gotten. Additional, Carreon has tried to interfere with said charity fundraiser.

    The merits isn't exactly a hard call here, in regards to any of them.

    Additionally, "I.e., Carreon is a douchebag attorney" – you know, I've never heard of Carreon before, and likely very few other people had either, apart from vague comments about sex.com that said nothing about him. If he's ended up as "douchebag attorney", it's because of his actions in this case.

  74. fredzeppelin  •  Jun 13, 2012 @12:10 pm

    Justin D. Jacobson wrote:

    "The Oatmeal could have responded directly to the lawyer along these lines: I disagree with your letter. Nevertheless, I have modified the language in my post to make clear that I am not accusing FunnyJunk of willful trademark infringement. However, I do not believe your client has adequately addressed my concerns as outlined in my initial post. Please take down the following improperly posted material."

    I'm curious if this would typically be the proper or advised course of action. How does spending time and energy and money modifying old posts and writing letters further the cause of The Oatmeal? Does mollifying a bully make them go away or come back for more later?

    I think this gets to the heart of bullying (which is how I view sending someone a baseless letter from a lawyer demanding $20k up front or else a lawsuit) and how people feel about it.

    "I disagree with you wanting to take my lunch money and trapper keeper. Nevertheless, I have given you half of my lunch money. However, I would still like to be repaid for the lunch money and sweet mechanical pencil you took from me last week."

    F#ck that. If the bully picks on someone who punches well above their weight, and gets a black eye for their trouble they deserve every bit of it.

  75. Justin D. Jacobson  •  Jun 13, 2012 @12:21 pm

    @EH: It has to be frivolous and for the purpose of profit to be barratry (or SLAPP). That presumes Carreon's allegations in the C&D were baseless. There's enough meat on that bone, I don't think it qualifies.

    I don't think my comments are contradictory. By "generally reasonable", I was implying a sort of spectrum of conduct for attorneys in this situation. It ranges from Carreon's heavy-handedness to, "Pretty please, take down the bad stuff you sent about us". Carreon was on the end of the spectrum but within the outer bounds. He would have been better served–clearly!–by a less heavy-handed approach, but that doesn't mean the conduct wasn't within that spectrum of appropriate conduct.

    @Strech:

    I feel like a broken record on this point, but you are conflating Carreon with his client. I believe that many people are being unduly harsh on Carreon because he is an attorney and because they like The Oatmeal. I'm not sure what evidence I could marshal other than my general experience with human nature. Generally, attorneys are held in lower regard than popular Internet comedians.

    I also continue to take issue with referring to it merely as a "charity fundraiser", what with the mother-bearlove vector involved.

  76. strech  •  Jun 13, 2012 @12:35 pm

    @Justin:
    I don't think I'm conflating Carreon with his client; maybe I'm holding him more responsible for the letter because I think the appropriate response a lawyer should give to a client requesting a legal threat over someone saying something they don't like is usually going to be "no", unless you're certain you can reach the high standard of malicious libel. And any chance Carreon had of being the "my idiot client made me do this" is belied by the actual content of the letter.

    The law is not some sort of higher way of saying "Pretty please"; it is much much closer to the gun analogy. Threatening lawsuits to make a point instead of actually making the case is one reason no-one likes lawyers.

    Also, re: lawyers. Ken seems pretty well liked, apart from all the crazy people he has to deal with.

  77. Robert  •  Jun 13, 2012 @12:38 pm

    "I really did not expect that he would marshal an army of people who would besiege my website and send me a string of obscene emails," he says.

    This is HILARIOUS! Has he ever actually USED the Internet?

  78. Scott Jacobs  •  Jun 13, 2012 @12:44 pm

    At least searches for "the oatmeal" no longer redirect to searching for "the fag," as FJ previously implimented.

    Tell me you have screenshots of it doing that…

  79. Justin D. Jacobson  •  Jun 13, 2012 @12:44 pm

    The complaints about FunnyJunk's conduct are distinct from Carreon's. When you string them together, it muddies the point as to both. That FunnyJunk relabeled The Oatmeal's content with "fag" has not bearing on whether or not Carreon acted improperly.

    As a technical matter, The Oatmeal accused FunnyJunk of theft. If false, it constitutes libel per se, and malice need not be proven.

  80. desconhecido  •  Jun 13, 2012 @12:47 pm

    After reading a bit about this controversy yesterday I cruised on over to the subject lawyer's website and found this. Compare what Carreon says about Youtube with what Oatmeal said about Funny Junk. The differences is are in tone and directness, not substance.

    This is very rich irony.

  81. Justin D. Jacobson  •  Jun 13, 2012 @12:51 pm

    @Strech

    "Threatening lawsuits to make a point instead of actually making the case is one reason no-one likes lawyers."

    1) Carreon made his case. Parts of it were apparently specious, but there core of it is facially valid. See my post at 7:51 am.

    2) Kinda proves my point. The vast majority of lawyers do not do what you suggest.

  82. SPQR  •  Jun 13, 2012 @12:51 pm

    Jacobson, I don't agree that labeling FunnyJunk's business model as "theft" is libel per se. I think its protected opinion as most people would realize that the word "theft" is being used in a general sense rather than that of a specific criminal offense.

  83. Justin D. Jacobson  •  Jun 13, 2012 @12:55 pm

    @SPQR:

    I agree and said so earlier. But it's not nothing. It's a colorable claim even if it might ultimately not hold water.

  84. desconhecido  •  Jun 13, 2012 @12:59 pm

    "As a technical matter, The Oatmeal accused FunnyJunk of theft. If false, it constitutes libel per se, and malice need not be proven."

    Of course it's false. Everybody knows it's false. It's hyperbole and metaphor and insult, not an actual accusation of criminal conduct. For a statement to be defamatory doesn't there have to be the possibility that someone being exposed to it might reasonably believe it?

  85. Justin D. Jacobson  •  Jun 13, 2012 @1:02 pm

    Alright, I've avoided today's workload long enough. I've got to check out. Thanks again, everyone.

  86. SPQR  •  Jun 13, 2012 @1:05 pm

    In the mid '90's, in the early days of the WWW, I was working for a large, national law firm in their entertainment law / IP group. The firm had large toy and entertainment conglomerates as clients. At a meeting discussing some heavy handed cease and desist threats being proposed against various supposed "infringers" like fan sites, I pointed out the dangers of inciting mass backlash responses.

    I remember the incredulous looks I got from the senior attorneys in that group, both incredulous that there was any chance of people being able to muster such support and incredulous that anyone would "dare" to publish a C&D letter. I was scolded for my silly notions. About a year later, after one hilariously panic'd client responding to what would today be seen as a tiny backlash, the group learned to write C&D letters that would be published …

  87. strech  •  Jun 13, 2012 @1:55 pm

    @Justin:
    I find it hard to read the Oatmeal's part there as saying anything other than "FunnyJunk's business model involves making advertising off of other people's stolen material by letting users upload it and claiming ignorance". I don't find a legal claim on this particularly plausible; I guess a lawsuit on the Oatmeal's words is legally colorable, but I don't think it's enough to threaten a lawsuit. I suppose that's different standards on what kind of situations justify involving lawyers.

    I probably would have shrugged off Carreon's involvement as distasteful but unimportant if the letter had more or less stopped and summed up at the "In addition to the above quoted false statement …" sentence, but here that would ignore:
    a) The rest of Carreon's letter, which is inexcusable;
    and (b) the evidence that the Oatmeal is accurately describing his business model.

  88. Via  •  Jun 13, 2012 @1:57 pm

    @Justin
    Ok I know this argument has died down but I wanted to point something out.
    "Let's be super practical for a minute here. Obviously, I don't know with certainty, but I can all but guarantee Carreon's thinking was along these lines: He sends the letter, The Oatmeal takes down the bit about theft, and the two parties never talk to each other again. Everyone goes on their merry way. I'm sure Carreon had no expectation of actually filing a lawsuit. I'm sure he had no expectation of actually getting paid."
    In the letter Carrion sent The Oatmeal he doesnt just ask for the comic against funny junk to be taken down, he asks for that AND twenty thousand dollars. There was no "or"

  89. Ken  •  Jun 13, 2012 @2:05 pm

    As a technical matter, The Oatmeal accused FunnyJunk of theft. If false, it constitutes libel per se, and malice need not be proven.

    This is a bit misleading. Libel per se means that, when calculating damages, the plaintiff need not prove specific damages, because harm is presumed. It does not free the plaintiff from burdens of proof imposed by the First Amendment with respect to liability — including, in some cases, actual malice.

  90. Charles  •  Jun 13, 2012 @2:06 pm

    @ Justin D. Jacobson • Jun 13, 2012 @12:51 pm

    @Strech

    "Threatening lawsuits to make a point instead of actually making the case is one reason no-one likes lawyers."

    2) Kinda proves my point. The vast majority of lawyers do not do what you suggest.
    Yes, but neither will the vast majority of lawyers stand up and voice disapproval of such bad behavior by their supposed peers (Ken here is a refreshing change of pace). There is either telling silence or a notable circling of the wagons from the legal community. This is quite noticeable and does nothing for the outside observer but give the impression that such behavior is tolerated (as you clearly tolerate Carreon's actions, by your statements here) if not approved of.

    Lawyers as a class have a bad reputation in our society specifically not because so many of them are genuinely bad actors, but because genuinely bad actors must go to absurd extremes before they face any real professional repercussions.

    I must ask this: if anyone other than an attorney had sent a letter stating, in effect, "hand over $20,000 or I will devote my time and energy to making your life difficult", would you be defending that writer? How does saying that Carreon's actions fall within the "spectrum of conduct for attorneys in this situation" make such a stance acceptable? It is a naked threat, not an attempt to resolve a dispute peaceably.

  91. Ken  •  Jun 13, 2012 @2:07 pm

    desconhecido, that's a wonderful find. Amending the post.

  92. Justin D. Jacobson  •  Jun 13, 2012 @2:25 pm

    @Ken:

    You're correct, I was mixing up my issues. The libel per se obviates the need to prove actual damages. As I said elsewhere, it alone would support an award of nominal damages and, as an intentional tort, punitive damages.

    The issue of malice is a separate one. Under NYT v. Sullivan, to make a case for defamation the plaintiff must show actual malice if they are a public figure.

    My apologies for the confusion.

  93. jetaz  •  Jun 13, 2012 @2:55 pm

    Perhaps I am confused, but why is Carreon's conduct not extortion? The essence of his letter is "pay me twenty grand or I will sue you."

    Am I the only one who feels like the subtext of this letter is "If you don't pay, it will cost you more to fight it, even if you win. And if I win, I get to use the guns held by the state to force you to pay me. So you should just yield; cause it is gonna cost you either way." Or is that just my layman mind thinking?

  94. Ken  •  Jun 13, 2012 @2:59 pm

    jetaz, I'd answer, but the response would be either (a) so generic as to be useless, or (b) highly tl;dr.

    Get a flavor here.

  95. jetaz  •  Jun 13, 2012 @3:57 pm

    Ken, I think I am even more confused. Perhaps I miss understood that ruling, but it seemed like the court said, "You can't prevail in an anti-SLAPP motion if the conduct you are being sued for was illegal. And in this particular case, Mauro did commit extortion, which is illegal, so we are going to agree with the lower court and dismiss Mauro's anti-SLAPP motion."

    But how does that relate to whether or not Carreon's conduct was extortion?

    Extortion has been defined by the Washington Legislature as "knowingly to obtain or attempt to obtain by threat property or services of the owner, and specifically includes sexual favors." (RCW 9A.56.110)

    Threat has been defined by the Washington Legislature in RCW 9A.04.110(28), specifically relevant is paragraph (j) "To do any other act which is intended to harm substantially the person threatened or another with respect to his or her health, safety, business, financial condition, or personal relationships;"

    Carreon is attempting to obtain Matthew Inman's property, specifically $20,000 of it, by threatening to file a frivolous lawsuit which is going to harm Mr. Inman with respect to his business, financial condition, and probably his personal relationships. How is that not extortion? I am not trying to be difficult or internet lawyer-y, but I am honestly confused.

  96. Ken  •  Jun 13, 2012 @4:18 pm

    jetaz, that cite was my quick reference for the proposition "the line between legitimate negotiation and extortion is not perfectly clear or bright." Ignore the SLAPP elements and focus on Sections B2 and B3, which discuss whether the methods there were extortion and why.

  97. Edward Green  •  Jun 13, 2012 @6:52 pm

    Justin, you said:

    "It's objectively escalation. I'm not saying it's always wrong to "go public", but it is an escalation. I'm not saying it's bad manners. I'm saying it makes the situation bigger and less likely to be resolved, which is bad."

    If I get a C&D Letter with a demand for 20k, and I hire a lawyer, isn't that an escalation as well?

    Or are you suggesting that as a non-lawyer, I should enter into a private discussion with someone who's trained in the law? That sounds rather foolish to me.

    The only way for it not to be an escalation is to pull the comments and cut a check.

  98. T. J. Brumfield  •  Jun 13, 2012 @9:14 pm

    Ken, I've really enjoyed these posts. They're both enlightening and enjoyable. IANAL, and I imagine it is fair to say that the light between legitimate negotiation and extortion isn't always clear, but isn't the flip side of that statement that sometimes it is?

    Isn't "give me money or I will do bad things to you" the very definition of extortion?

  99. T. J. Brumfield  •  Jun 13, 2012 @9:22 pm

    And not only should an "internet lawyer" be familiar with internet bullying (and the Streisand Effect), but he should be aware his client leveraged the same tactic last year when FunnyJunk emailed all their members asking them to harass Inman.

  100. Justin D. Jacobson  •  Jun 14, 2012 @5:53 am

    @T.J.:

    "[T]he light between legitimate negotiation and extortion isn't always clear, but isn't the flip side of that statement that sometimes it is."

    You've stated the fundamental issue far more clearly and succinctly than I did. That is absolutely true. In my opinion, while a close call, Carreon's conduct is in that acceptable range. That's pretty much what I've been taking about 120,000 words to say.

  101. Justin D. Jacobson  •  Jun 14, 2012 @6:01 am

    To clarify: It's not extortion to try to settle a claim prior to bringing a lawsuit.

    If your response is that the threatened lawsuit in this instance was frivolous, I would say: (a) it's not extortion to try to settle a frivolous claim prior to bringing a lawsuit, and (b) the claim in this case was not frivolous.

    There is clearly a disconnect between the lay use of the term "frivolous" and its use in the legal context. In the legal context, there is a much higher standard. You might decry that, but the alternative would give rise to a serious chilling effect in bringing lawsuits generally, particularly against well-funded defendants, which seems to be precisely the sort of thing you are actually concerned about.

    I would also point you to the McDonald's coffee case, of which there is a great summary here.

  102. Patrick  •  Jun 14, 2012 @6:41 am

    In my opinion, while a close call, Carreon's conduct is in that acceptable range.

    The lawyers I admire (and I've been doing this for close to 20 years) don't skate onto thin ice. There's a vast gulf between the ethical practice of law and avoiding Rule 11 sanctions.

    If it seems to be a close call, it isn't. It's wrong.

  103. Scott Jacobs  •  Jun 14, 2012 @6:43 am

    But Justin, it is extortion to do so when your claim is absolutely without merit.

    He knows it is, because prior to this letter, he is on record claiming that conduct such as funnyjunk's is not valid (see quote by another commentator).

    He sent a bullshit letter where he threatened painful, lengthy, expensive litigation unless he got paid off.

    He then cried about having th3 mob sent after him when a) the Oatmeal didn't send people after them, he just asked for donations b) his client had ACTUALLY sent a mob of mouth-breathers after the Oatmeal after the first run-in, and did so by lying about the issue c) and then his client, clearly knowing Oatmeal content remained, redirected all searches for the Oatmeal's stuff to "the fag".

    How the unholy monkeyfuck is HIS conduct the stuff you are OK with?

    The only possible explination I can think of (and I have tried to come up with others) is that you are either associated with the lawyer, or with Funnyjunk.

  104. Justin D. Jacobson  •  Jun 14, 2012 @7:11 am

    @Patrick:

    I agree with you in principle. However, as a logical necessity, there must be some conduct that is close to the line but acceptable. Otherwise, the area of acceptable conduct ultimately shrinks to nothing. I maintain that the conduct here was acceptable. We can disagree about that. Do you think it is obviously improper or patently frivolous as others have said? Do you think FunnyJunk's claim of defamation for The Oatmeal's comment that they were committing theft is "absolutely without merit"? (See below.)

    @Scott:

    I've addressed what you've said in your post elsewhere on a couple of occasions. The claim is not absolutely without merit. It was not a bullshit letter. He did not demand a "pay off", which implies something nefarious. The independent acts of his client should have no bearing on how we judge his conduct.

    And, no, I am not associated with Carreon or FunnyJunk. As I've said previously–did you read my prior posts?–I'd never heard of either of them prior to this situation.

  105. Justin D. Jacobson  •  Jun 14, 2012 @7:14 am

    I'd like some lawyers to weigh in on this fundamental issue:

    I understand you might not like FunnyJunk's business model, but do you believe that FunnyJunk is acting illegally in the operation of their website?

    If the answer to that is "no", then I don't see how you can say that Carreon's claim of defamation per se is patently frivolous. I don't think it would ultimately hold up in court, but it's not patently frivolous.

  106. T. J. Brumfield  •  Jun 14, 2012 @7:16 am

    On the whole I do see that a lawyer needs the ability to try and negotiate a settlement out of court. Asking for money to avoid a suit isn't inherently wrong in my opinion (I'll avoid the terms legal and illegal). I think I get where Justin is coming from.

    But I agree with both Patrick and Scott's counter-points. Carreon has a track record of comments that suggest he knows this potential lawsuit has no merit. He isn't negotiating in good faith. He's shaking Inman down for money.

  107. Justin D. Jacobson  •  Jun 14, 2012 @7:20 am

    That's certainly possible. I don't know Carreon at all. I am unaware of hsi prior dealings in these sorts of situations. I was merely addressing the facts of this situation objectively.

    Even that's not possible. To be honest, what really triggered my response was a sense of sympathy for an attorney acting in the scope of their representation and getting hammered for it. I'm a debt collection attorney, so there is a greater than zero chance I'm overly sensitive to this sort of thing.

  108. JRM  •  Jun 14, 2012 @7:25 am

    Scott:

    I think your thinking powers lack range on this subject. I think Justin's wrong on this thread, but he's engaged his audience and articulated a position in a way that shills historically don't do. (Clues: Apparent real name of poster, willingness to change view, politeness, failure to call opponents names.) This is not behavior consistent the swarm of locusts FJ tried to send out the first time.

    As to affiliation with Carreon, it doesn't make a lot of sense for some of the same reasons (and their geographic lack of proximity and lack of other apparent ties).

    In short, I think this is a cheap shot of the "everyone who disagrees with me must be corrupt because I am so obviously right all the time," variety. Bad call, friend.

    –JRM

  109. ShelbyC  •  Jun 14, 2012 @7:27 am

    Dear Charles Carreon,

    On an interview with MSNBC, you claimed that the Oatmeal "marshal[led] an army of people who would besiege my website and send me a string of obscene emails," he says. This claim is clearly false and defamatory, and done with actual malice. To avoid a lawsuit, please send a check for $20,000 and a drawing of your mom attempting to seduce a Kodiak bear, to the American Cancer Society and the World Wildlife Federation.

  110. JRM  •  Jun 14, 2012 @7:27 am

    Ah, during composition of this lots of other posts here. Anyway, my point still stands about the cheap shot.

  111. ShelbyC  •  Jun 14, 2012 @7:57 am

    @Justin, "I understand you might not like FunnyJunk's business model, but do you believe that FunnyJunk is acting illegally in the operation of their website?

    If the answer to that is "no", then I don't see how you can say that Carreon's claim of defamation per se is patently frivolous."

    Not a lawyer, but I don't get it. Did Carreon claim that the oatmeal said that funnyjunk's business model was illegal? The statement Carreon claims is false is a perfectly accurate description of at least a portion of funnyjunk's business, which, as you say, we may not like, no?

  112. Justin D. Jacobson  •  Jun 14, 2012 @8:24 am

    Sometimes defamation claims are obvious: "John stole my iPhone." (assuming he did not actually steal it.

    A lot of times, they are not. Ultimately the trier of fact must look at the totality of the communication for context. That Mauro case, cited earlier, is a good example. You'll note that the court stresses that it's finding is based on the specific facts of the case. They always are.

    In this instance, The Oatmeal's comment that FJ "practically stole my entire site" combined with the rest of the post could reasonably be read as a stating that they intentionally violated his trademark. If false (and I think it is based on Betamax), it establishes a non-frivolous claim of defamation.

  113. Scott Jacobs  •  Jun 14, 2012 @8:33 am

    And while you would be correct were the claims false, the links provided by the Oatmeal easy suggest they they are not, on their face, false. If you go there now, you will still find Oatmeal comics.

    The Oatmeal makes no money from them posting his content, while funnyjunk does.

    Sounds like theft to me.

    Please, besides the bullshit of "he called us mean names make him stop", what in the letter the Oatmeal received was either accurate or actionable?

  114. Scott Jacobs  •  Jun 14, 2012 @8:35 am

    And to address another point – yesthere are areas near the unethical line. Means to an end that are questionable, but not actionable.

    What Patrick meant, I believe, is that the lawyers he respects – the ones the should be respected – never have to go that far. Their actions are always clearly ethical, no "close" about it.

  115. perlhaqr  •  Jun 14, 2012 @8:38 am

    Justin: I think everyone here is sort of arguing at cross-purposes. I get the impression your point is mostly that Carreon didn't deserve to be mocked (and receive 10k+ emails calling his mother a bearlover) for "doing his job", as it were.

    That because Carreon is a lawyer, and not an internet humorist, he deserved to have his legal instrument addressed by another legal instrument, and not merely subjected to public ridicule.

    The problem with this theory (if it is actually how you feel) is that a lot of people think lawyers who send outrageous C&D letters are jerks. And sending an outrageous C&D letter to someone who is not a lawyer, but rather an internet humorist, is likely to elicit a response of the form the person receiving it is most comfortable with. Not being a lawyer, The Oatmeal didn't respond with a legal instrument, he responded with, well, internet humor. And other people, having read both the original C&D, and The Oatmeal's response to that C&D, decided that the original C&D was outrageous, and that this makes Carreon a jerk, and then decided on their very own to let Carreon know how they felt.

    Think of it as the egalitarian tendency of the internet; ain't none of us safe from being called a jerk if we act like a jerk in public. From the lowest SEO marketroid to the very President of the United States, if you kick a puppy and people find out about it, it's going to get you called all sorts of very exciting and probably misspelled names on the internet.

  116. ShelbyC  •  Jun 14, 2012 @8:44 am

    @Justin: "In this instance, The Oatmeal's comment that FJ "practically stole my entire site" combined with the rest of the post could reasonably be read as a stating that they intentionally violated his trademark."

    I'm not sure how. Isn't it perfectly clear, in context, that the "stole" refers to other users uploading the oatmeal's content, and funnyjunk claiming ignorance? It appears, in context, two lines after a numbered list describing such activity.

  117. Justin D. Jacobson  •  Jun 14, 2012 @8:51 am

    @ShelbyC, you need only look at Scott's post three up to see that's not the case. Scott thinks that FunnyJunk is committing theft because user's are posting Oatmeal content on their site and they are making money. It seems clear that he thinks this because of The Oatmeal's post.

    He's wrong. It's objectively not theft. (Seriously, Scott, look at the Betamax case.) But it demonstrates with remarkable clarity the basis for Carreon's defamation claim.

  118. perlhaqr  •  Jun 14, 2012 @8:52 am

    ShelbyC: In addition to that, on Carreon's website, at http://www.charlescarreon.com/temporarily-unavailable/ (referring to his contact page) Carreon states: "Due to security attacks instigated by Matt Inman, this function has been temporarily disabled."

    Now, I don't know if there's a legal definition for "instigate", but my basic knowledge of the English language suggests this means that Inman actually told people to attack Carreon.

    Since Inman has, to the best of my knowledge, said no such thing, would this also count as defamation? An implication that Inman engaged in illegal behaviour to rile the crowd to harass Carreon? (In my very limited understanding of legal details, I believe it to be the case that there's no First Amendment protection for inciting a riot or inciting a lynch mob.)

  119. Victor  •  Jun 14, 2012 @8:58 am

    Statute of Limitations for defamation in the state of Washington is 1 year. Should this actually make it to trial this will most likely get thrown out of court since the post by Inman in question if my facts are right was made on May 2011. Carreon feeder serves a demand letter to Inman on June 2012.

    Man so many strikes against Funnyjunk, why they wait so long to make this demand? Did the Admin wake up one morning and said oh shit I need more money, let's see if I can pick on this guy who complained about me almost a year ago? Disgraceful.

  120. desconhecido  •  Jun 14, 2012 @8:59 am

    Two points:

    1. In a rather interesting, and in my opinion, well written and reasoned, article posted on his website, Carreon discusses the Google/YouTube business model in essentially the same way that Oatmeal discusses FunnyJunk's business model. No, Carreon is not insulting or comically crude, but as I noted before, the differences between Carreon 's comments about Google and Oatmeal's comments about FunnyJunk are in style, tone, and directness, not substance. This is a pretty good indication that Carreon understands that what Oatmeal posted about FunnyJunk is reasonable and fair comment.

    2. It is common to refer to those who willfully violate copyright law, and those who profit from that violation, as thieves and to refer to improperly used material as stolen. Of course, it's not theft and the material has not been stolen and everybody understands that. The references to property crimes are metaphorical and are used to express the opinion that those who violate copyright laws, and those who profit, are reprehensible; morally no higher than common thieves. It's sort of like referring to Bill Clinton as Chelsea's pimp. Nobody would think that an accusation that they are engaged in prostitution.

    So, Carreon understands all this. He understands criticism of the business models of entities like YouTube and FunnyJunk — he's engaged in it himself. He's a self-proclaimed internet lawyer so he should be expected to have some understanding of the use of metaphorical and insulting expressions of opinion with respect to copyright violators and those who profit from those violations.

    Finally, would casual reference to a lawyer as an "ambulance chaser" be considered an accusation of the crime of barratry or would it be protected opinion that the lawyer in question is reprehensible?

  121. ShelbyC  •  Jun 14, 2012 @9:00 am

    "@ShelbyC, you need only look at Scott's post three up to see that's not the case. Scott thinks that FunnyJunk is committing theft because user's are posting Oatmeal content on their site and they are making money. It seems clear that he thinks this because of The Oatmeal's post."

    You're suggesting that, had Oatmeal not said that funnyjunk "practically stole" his website, Scott would not believe that the activity described in the Oatmeal's post was theft? I don't see any support for that at all. I think people believe it's theft because making money off other people's content without payment or attribution sounds alot like theft, not because of any particular statements Oatmeal made,

  122. Scott Jacobs  •  Jun 14, 2012 @9:03 am

    The betamax case is a BS counter. The Oatmeal owns his own stuff. It is taken, without just compensation, and posted elsewhere. This elsewhere makes money off of advertising, which means posting popular things makes them more money.

    How, on this or any planet, is the taking of one's property – without ANY just compensation, I would remind you – not theft?

    And I have thought Funny Junk has been stealing content – property – from many artists without compensating them for some time. Yes, I first became aware through the original Oatmeal post, but regardless, posting of the content of another is theft. Period.

  123. perlhaqr  •  Jun 14, 2012 @9:08 am
  124. Justin D. Jacobson  •  Jun 14, 2012 @9:11 am

    @ShelbyC:

    You're correct. I didn't mean to imply that his opinion was based solely on The Oatmeal's post. That would be silly. Scott's assessment is that FJ is committing theft because user's are posting Oatmeal content on their site and they are making money. That's essentially the same as the content of The Oatmeal's original post.

  125. Scott Jacobs  •  Jun 14, 2012 @9:13 am

    @desconhecido – dude would be right, if those two didn't take down copyrighted material when made aware of it, reacted like posted the copyrighted material was actually a FAVOR to the creator, and then made searches for that creator's stuff still there despite knowing it was stolen resolve to "the fag".

    Google might be tools, but they at least try, sometimes, to not be fucking thieves.

  126. Justin D. Jacobson  •  Jun 14, 2012 @9:21 am

    @Scott, you're just simply wrong on this. What the Betamax case held was that a technology that has significant non-infringing uses is valid. FJ is not appropriating or uploading the content; their users are. You might not like the implications of that, and indeed the Betamax case is being re-examined in light of file-sharing sites like FJ. However, under the law as it is now, it's not theft.

    Is YouTube committing theft?

  127. Scott Jacobs  •  Jun 14, 2012 @9:24 am

    Sure Charles is an internet lawyer…

    But does he wwebsite as on the internet?

  128. Justin D. Jacobson  •  Jun 14, 2012 @9:25 am

    My third and final thanks for a great and civil conversation. I'm checking out for good. (This thread, that is. I'm not like dying or anything.)

  129. SPQR  •  Jun 14, 2012 @9:48 am

    Justin, first of all I don't think that the interpretation of the word "theft" by Inman is going to turn on a copyright case. But if it did, Betamax is very far from the applicable case when you have cases like Grokster out there.

  130. Justin D. Jacobson  •  Jun 14, 2012 @9:56 am

    It's like the Godfather: Every time I think I'm out, they pull me back in.

    On the contrary, they're both applicable. SCOTUS had the opportunity to recede from Betamax (actually, "Sony"), but they didn't. What they did was establish a test by which a person might be excluded from the protection of Sony. Among other things, the Grokster Court said that the mere absence of affirmative steps to prevent copyright infringement was not sufficient to avoid Sony and establish liability.

    I haven't seen anyone–including The Oatmeal's original post–suggest that FJ intended to promote copyright infringement.

  131. desconhecido  •  Jun 14, 2012 @10:05 am

    "Is YouTube committing theft?"

    Literally or legally, no. Metaphorically, yes. They are like thieves, they are like receivers of stolen property. Read Carreon's piece about Google for interesting comment on the Google/YouTube business model.

    Of course, everyone is probably thinking about the famous "shocked!" scene in Casablanca.

  132. ShelbyC  •  Jun 14, 2012 @10:09 am

    @Justin: "Scott's assessment is that FJ is committing theft because user's are posting Oatmeal content on their site and they are making money. That's essentially the same as the content of The Oatmeal's original post."

    Still not seeing the colorable claim. Scott and Oatmeal are free to characterized FJ's model as "theft" or stealing if they wish. In context, such a characterization may or may not imply that FJ is breaking the law. In context, I just don't see how Oatmeal's use of "stole" can reasonably be interpreted to suggest that FJ is willfully infringing on Oatmeal's copyright or trademark. Oatmeal is very clear about what conduct FJ is engaging in that he is characterizing as stealing, and he is indeed entitled to a legal remedy for such conduct, that is, a DCMA takedown.

  133. desconhecido  •  Jun 14, 2012 @10:11 am

    "I haven't seen anyone–including The Oatmeal's original post–suggest that FJ intended to promote copyright infringement."

    Ohmygod. That is the substance of Carreon's letter. Oatmeal describes FJ's business model in unflattering terms and Carreon states:

    "this is a false accusation of willful copyright infringement." So, if Oatmeal didn't intend to accuse FJ of copyright infringement, what is the basis for the defamation suit?

  134. Ken  •  Jun 14, 2012 @10:12 am

    Today Randazza links to The Oatmeal's response-via-lawyer, as opposed to its response-via-internet.

    That letter cites relevant defamation precedents helping to explain some (though not all) of the reasons that I strongly disagree with Justin.

    Some of the familiar doctrines in play, grossly oversimplified: (1) when a statement is capable of a defamatory and a non-defamatory meaning, the courts treat it as having the non-defamatory meaning, (2) defamation is determined not by the literal, precise truth of the statement, but by the "gist" or "sting" of the statement (so, for example, if Justin said "Ken was disbarred for molesting squirrels," and I was actually just suspended for abusing chipmunks, that would likely not be defamatory), and so on.

  135. Ken  •  Jun 14, 2012 @10:19 am

    In the same vein, Carreon's whine that Inman "instigated" attacks on Carreon's web site is almost certainly not defamatory, even though it's perfectly clear that Inman did not say "go attack his web site."

  136. SPQR  •  Jun 14, 2012 @10:37 am

    OK, its not a bad letter … ;-)

    And I think it illustrates well why Carreon's claim is simply frivolous and not colorable.

  137. Justin D. Jacobson  •  Jun 14, 2012 @10:42 am

    That is indeed a great response. Thanks for sharing, Ken.

    We don't disagree about everything. I said from the outset that I thought FJ's claim was ultimately insufficient. I just don't think it's frivolous.

  138. Grifter  •  Jun 14, 2012 @11:12 am

    While we may agree that Carreon's comments were not defamatory for the same reason the Oatmeal's weren't, it's pretty hypocritical of someone who claims to think that the Oatmel's were, isn't it?

  139. Sarahw  •  Jun 14, 2012 @1:38 pm

    Ken, it's very annoying nonetheless and rather a big fib. Inman instigated laughter and charity donations. Maybe that might lead to more bear attacks and hacked oncogenes but really, way to puff, Carreon.

  140. Chris  •  Jun 14, 2012 @5:45 pm

    I have had an email exchange with Charles Carreon. Until today I thought he may be misguided but an okay fellow. However after accusing Matthew Inman of instigating attacks against him I find him disingenuous. Privately he has said he enjoyed the attention and made fun of advice I gave him that the internet could get weird on him really quickly. He doesn't seem concerned at all. Publicly of course he and his wife are acting very differently. She accused Inman of being a Killer Clown Psychopath from outer space, or something of the sort. Here is a quote from Mr. Carreon from an email:

    "Ironically, I am sufficiently well-positioned that what might seem like a debacle and force others into hiding has quite the reverse effect on me. I have plans and plans, and I love talking to the media. "

  141. Ken  •  Jun 14, 2012 @6:47 pm

    Trying to investigate whether the various comments posted online in the name of Mr. Carreon's wife are genuine or not.

  142. Chris  •  Jun 14, 2012 @6:50 pm

    @Ken

    I asked Charles in email (a long one with numerous subjects) and he did not reply to that specific point.

  143. Sarahw  •  Jun 15, 2012 @6:03 am

    I'm not usually one to make personal remarks but I hope Carreon plans to get a better hat.

  144. Justin D. Jacobson  •  Jun 15, 2012 @6:25 am

    In light of recent events, I feel like I need to come back to state clearly: While I maintain my position regarding Carreon's initial demand letter, I don't in any way condone his subsequent conduct, which I find to be unprofessional and reprehensible.

  145. V  •  Jun 15, 2012 @10:58 am

    There's another interview with Charles Carreon on Forbes.

    I get the feeling he's walking right up to a line, in one of the quotes, pretending he's losing his balance and in danger of falling over the line and then recovering with a smile;

    So someone takes one of my letters and takes it apart. [...] and douchebaggery,

    'Someone' could be anyone right, it's not like he's actually saying he means Inman.

  146. Ken  •  Jun 15, 2012 @11:02 am

    Working on a new post about that now, V.

  147. AlphaCentauri  •  Jun 15, 2012 @4:54 pm

    I don't think the Betamax case applies, because once the cassette recorders and cassettes left the factory, Sony had no control over how they were used. It's not like they were hosting an online marketplace of pirated videos.

    Funnyjunk has direct control over content. They have given users the ability to upload it without pre-approval, and no one is saying that should stop. But if a content owner contacts you and shows that your users violating his copyright, and not only that but his content is so popular that large numbers of your users are violating his copyright, you don't mock him. You talk to him about how to remove his content quickly with the least inconvenience to both of you, or better, you talk about how you can mirror his content with attribution and both get in on additional revenue.

    Funnyjunk has put themselves in a position where they have to respect the rights of copyright holders while allowing the most freedom to their users, and showing such a lack of maturity raises questions about whether they're up to the task.

  148. TexasSwede  •  Jun 16, 2012 @7:17 am

    Interesting enough, Charles Carreon have taken down his blog (or at least the entry when he accuse Youtube of doing exactly what his cleint FunnyJunk is doing).

    Google still have it cached at http://webcache.googleusercontent.com/search?q=cache:z9UHSdTm6D4J:www.charlescarreon.com/notable-cyber-law-cases/caveat-creator-dmca-google/2010/06/23/

    Here is the text, as copied from Google cache:

    —————————————————–

    All Google Needed Was An Effective Takedown System to Reach the Safe Harbor

    In granting summary judgment against Viacom on the grounds that Google was a legitimate Online Service Provider with an effective takedown system, and therefore entitled to receive the benefit of the DMCA “Safe Harbor” under 17 USC 512(c), the District Court cites copious amounts of legislative history establishing that without the safe harbor, the Internet might not grow robustly. (Download PDF) Google’s general knowledge that there was a whole lot of infringement happening on YouTube didn’t mean that it was obligated to start screening for infringing content or hunting it down once it was posted, because their job is just to have an effective takedown system to remove content once the creator tells them it’s infringing. The burden of discovering infringing content never shifts to the Online Service Provider, and it’s always the copyright holder’s job to find it and identify it by URL. The court said:

    Mere knowledge of prevalence of such activity in general is not enough. That is consistent with an area of the law devoted to protection of distinctive individual works, not of libraries. To let knowledge of a generalized practice of infringement in the industry, or of a proclivity of users to post infringing materials, impose responsibility on service providers to discover which of their users’ postings infringe a copyright would contravene the structure and operation of the DMCA.

    YouTube Is DMCA-Friendly, Napster Was Not

    The court also held that even though YouTube technology made it easy to infringe, that didn’t make it like Grokster or Napster, because those were systems that were designed to foment piracy. This is an interesting distinction, because creating a video bazaar where everyone knows you can find stolen content doesn’t seem that different from creating a file sharing system where everyone knows you can create stolen content, but it’s different in one important way — Napster and Grokster never went around deleting content, and had no mechanism that would allow a copyright holder to locate where the content was and send a takedown notice. This really means that some technology is DMCA-friendly (YouTube-style video communities) and some is not.

    Ad Revenue From Tainted Traffic Is Pure

    The court rejected the argument that Google should lose the DMCA safe harbor because it was generating ad traffic by having a site that in general, contains a lot of infringing content. This part of the opinion isn’t very satisfying. The court seems to be finessing the issue when it says:

    The safe harbor requires that the service provider “not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity ” § 512(c) (1) (B). The “right and ability to control” the activity requires knowledge of it, which must be item-specific.There may be arguments whether revenues from advertising, applied equally to space regardless of whether its contents are or are not infringing, are “directly attributable to” infringements, but in any event the provider must know of the particular case before he can control it.

    That’s a distorted reading of “right and ability to control.” Google has the right and ability to delete every single video on the whole site, or to just turn it off altogether. Google has the right and ability to delete every single video on the whole site, or to just turn it off altogether. To say they have no “ability to control” infringing videos until they know that they are infringing is like saying I can’t control my appetite until I know the caloric content of my food. If I were Viacom, not that I want to be Viacom, I would tell my lawyers to appeal on the grounds that the district judge distorted the meaning of the statute here. After all, the court admitted that Google was working the system:

    From plaintiffs’ submissions on the motions, a jury could find that the defendants not only were generally aware of, but welcomed, copyright-infringing material being placed on their website. Such material was attractive to users, whose increased usage enhanced defendants’ income from advertisements displayed on certain pages of the website, with no discrimination between infringing and non-infringing content.

    Let The Creator Beware

    If Google can generate ad revenue by taking in every kind of content without distinction, and make money on the infringing attractions, then Google can “work the float,” and always have enough infringing content to keep its blood pressure up at the expense of copyright holders. The only way that content owners can act proactively is by implementing digital “fingerinting technology” through the “Claim Your Content” system that Google uses as its only screening mechanism. Fingerprinting your content is not, however, cheap. So what this opinion seems to announce is a doctrine of “Caveat Creator,” let the creator beware.

    Will The Real Free Speech Provider Please Stand Up?

    Please don’t take me for a copyright hawk, but this seems like a ruling that benefits a company that has made a habit of turning other people’s work into their payday, and is being encouraged to keep on doing it. Meanwhile, real free, nonprofit libraries that have no advertising revenue, are discouraged from putting the works in their archives on the Internet where scholars and researchers can use it for fair use purposes, because publishers do not respect the fair use protections of 17 USC 107 (the Library Exemption from copyright infringement liability). I am currently defending the American Buddha Online Library against a suit from Penguin, and although I won on jurisdictional grounds in New York District Court, Penguin appealed, and the Second Circuit court of appeals is now asking the New York State Appeals Court to take a look at the issues and see if something better can be worked out for Penguin by tweaking New York state law. I am doing this case pro bono, because I’ve been well acquainted with the director for many years, but few libraries have a handy intellectual property lawyer to handle their cases. So true freedom of speech on the Internet is getting suppressed by copyright lawsuits while Google gets to keep minting money by working the DMCA like a money pump. Nice work if you can get it.

  149. AlphaCentauri  •  Jun 16, 2012 @7:26 pm

    "I am doing this case pro bono, because I’ve been well acquainted with the director for many years"

    I will refrain from making jokes about working "pro boner."

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