Tagged: Oatmeal v. FunnyJunk

An Open Letter To Charles Carreon

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Dear Mr. Carreon,

I've written some harsh things about you here in the course of covering the dispute that erupted when you sent a cease-and-desist letter to Matt Inman of The Oatmeal. You, in turn, have had some strong language about me at various locations including your site "Rapeutation.com." You accuse me of a "reign of terror" on this blog against people I criticize. You also assert that there should be a tort of "Distributed Internet Reputational Attack" allowing plaintiffs to sue when they experience a sustained online attack on their reputation.

I propose an online public debate on these topics.

May I suggest the following:

1. We will each pick one nominee, and those two nominees will agree on a moderator.

2. The moderator will choose where online to post our respective input in the debate.

3. Once a week, for six weeks, one of us will pose a question to the other, or make an assertion. The other will then have a set time to respond — shall we say four days? — and then the initiator of that cycle may reply within two days.

4. We will trade off on initiating questions or assertions. You may go first if you want.

5. We will email our input to the moderator, who will post it and have sole control over it, so that neither of us might fear a biased forum.

6. We can allow comments, or not, at your option.

7. The moderator can be empowered to delete personal attacks, or not, at your option.

8. We will agree not to pose questions that would require the other to breach attorney-client confidences or otherwise interfere with professional duties. So, for instance, I would not ask you to reveal communications between you and your client, FunnyJunk, nor would I seek your evaluation of a ruling against you in a pending case.

9. We will agree that the topics will relate to the intersection of free speech, reputation, online culture, and the role and duties of an attorney. If you agree, the permitted subjects may also include the statements we have made about this public dispute.

10. I will offer two examples. The first is this: "Submitted: the tort of Distributed Internet Reputational Attack, as proposed by Mr. Carreon, cannot be reconciled with the First Amendment as interpreted by modern courts, nor with the value of freedom of expression." The second is this: "Mr. Carreon: on your web site Rapeutation.com, you list 'David Blade,' Craig Brittain, and Chance Trahan as 'victims' of my 'reign of terror.' Can you explain in what sense they are 'victims,' and in what sense my writing about them is a 'reign of terror?'

Mr. Carreon, I would be happy to entertain proposals from you for amendments to this debate procedure.

Very truly yours,

Ken White
www.popehat.com

In Which I Offer Apologies

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It has been brought to my attention by Charles Carreon — the attorney of Oatmeal v. Funnjunk fame — that I have victimized the following persons and entities in a reign of terror:

Thomas Menino, Mayor of the City of Boston
The Legislatures of Arizona and Connecticut
Michael Meehan, Chief of Police of the City of Berkeley
Meghan McCain
The Federal Trade Commission
Imaginary Lawyer David Blade

. . . . and many others.

In these depredations I have been aided by persons and entities identified by Mr. Carreon as "rapers," including but not limited to PZ Myers, Marc Randazza, the American Civil Liberties Union, and the University of Reading Atheist, Humanist & Secularist Society.

This is because of Plato.

I would like to apologize sincerely to everyone I have tyrannized1

Charles Carreon Encounters Actual Legal Consequences

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All of my coverage of the saga of Charles Carreon, his threats against Matthew Inman of The Oatmeal, and his dispute with a satirical blogger are collected here.

When I write about prolonged bad behavior in the legal system, I often get angry comments from people who say "when will the system impose consequences on people who act this way?" Take heart, I respond. The wheels grind slowly, but they grind. "Bullshit," comes the response. "Prove it."

Very well. How about an order requiring Charles Carreon to pay $46,100.25 in attorney fees?

Charles Carreon became infamous when he rashly threatened Matthew Inman of The Oatmeal, leading to infamy and spectacle. Later he made very foolish and extravagant threats against a satirical blogger, leading to a declaratory relief action against him. He evaded service for a while, then capitulated in that case, but has been fighting over whether he should have to pay attorney fees.

Today a federal judge in the Northern District of California granted the motion for fees by the satirical blogger, granting $46,100.25 in fees to the blogger's attorneys, Paul Alan Levy of Public Citizen and attorney and blogger Cathy Gellis. They had been seeking a total of $77,765.25.

Judge United States District Judge Richard Seeborg's order awarding fees is devastating to Carreon. Judge Seeborg rejects Carreon's arguments one by one, and finds Carreon's litigation conduct rendered the case exceptional, justifying a partial award of fees under the Lanham Act:

While defendant’s threatened claims were not “exceptional” at the outset of this case, defendant’s actions throughout the litigation certainly transformed this case into an “exceptional” matter, deserving of an award of attorney fees. The Ninth Circuit has stated that “bad faith or other malicious conduct satisfies the exceptional circumstances requirement.” Boney, 127 F.3d at 827. Evidence supports a finding of malicious conduct during the course of this case. Defendant first went to great lengths, imposing unnecessary costs on plaintiff, to avoid service. Then, in response to this motion for attorney fees under the Lanham Act, defendant engaged in unnecessary, vexatious, and costly tactics in preparation of his opposition to the motion. The Ninth Circuit discourages major litigation with respect to attorney fees. See, e.g., Camacho, 523 F.3d at 981; Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) (“A request for attorney’s fees should not result in a second major litigation.”). Defendant’s serving of interrogatories and taking of plaintiff’s deposition amounted to a mini-trial on plaintiff’s motion for fees. Indeed, plaintiff incurred an additional $37,650.25 in fees and costs after his motion was filed. Despite this additional discovery, defendant has presented no evidence to support his initial contention that plaintiff’s attorney is on a mission to “turn Internet gripe sites into profit centers for him and
Public Citizen Law Group.” Doc. #45, at 4. Defendant has failed to show that his additional discovery efforts led to anything other than additional frustration for plaintiff and his attorneys. Accordingly, plaintiff’s efforts to respond to defendant’s litigation tactics merit the imposition of a fees award.

Judge Seeborg rejects Carreon's argument that the settlement precluded an award of attorneys fees. Carreon drafted his own offer of judgment. He could have made it clear that the offer precluded fees. He didn't.

Defendant cannot now escape the consequences of his inartful drafting.

Charles Carreon could have escaped with a much lower award, or no award at all. The court declined to award fees for the filing of the declaratory relief suit itself, or for the brief litigation of its substance, finding that Carreon's initial threats did not render the case exceptional under the Lanham Act. The bulk of this order — $37,650.25 — results from Carreon's bizarre discovery demands in response to the motion for fees itself, which the court described as "unnecessary, vexatious, and costly." Most of the rest of the order — $8,450 — results from Carreon's evasion of service. So, instead of facing a costs bill for a few thousand dollars at most, Charles Carreon is facing a bill for $46,100.25. Character is destiny.

There are consequences for bad behavior. They come slowly. But they do come.

Note: I was going to wait for Paul Alan Levy to write about this first, since it's his win based on his work. But Adam Steinbaugh and Mike Masnick scooped me.

Edited to add: Paul Alan Levy offers his thoughts, plus some very kind words for which I am grateful.

In Which Charles Carreon Says Mostly True Things About Me In A Footnote

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Last year I blogged quite a bit about the saga of the saga of attorney Charles Carreon's disputes with Matt Inman of The Oatmeal. I have an update. It is a minor one.

You may recall that Carreon uttered extravagant threats against a satirical blogger, only to settle the case in the blogger's favor when the blogger — aided by Public Citizen — sued for declaratory relief.

That case is now embroiled in a dispute over the blogger's request for attorney fees. Mr. Carreon, resisting any award of fees, served me with a subpeoena for communications with the blogger and the blogger's attorneys of record. I objected. Mr. Carreon has now filed his opposition to the motion for fees; you can read about his arguments at Techdirt or Adam Steinbaugh's blog.

I write not of the substance. I confine myself to noting footnote one of Mr. Carreon's brief:

White, a criminal defense lawyer with a Libertarian following, derides other lawyers at Popehat.com as “Censorious Asshats.” http://www.popehat.com/2012/12/26/vote-in-the-secondannual-popehat-censorious-asshat-of-the-year-poll/ White conceived a special dislike for the Lawyer, recruiting readers to play a “Twitter hashtag game: #charlescarreonnewcareers,” and recruited them as an “Army of Davids” to “take a screenshot or print … to pdf [any] web page” showing that the Lawyer had made “an inconsistent statement [or] shows hypocrisy.” (Carreon Dec. ¶ 5; Exhibit 1.) When served with a subpoena for documents in this case, White responded with the disclosure that he had exchanged over 200 emails with the Gripesite Operator, and refused to produce anything, claiming that the Lawyer possesses “animus” towards White. (Carreon Dec. ¶ 5; Exhibit 2.)

Much of the footnote is true. I am a criminal defense attorney. I have a libertarian following. I deride attorneys, including Mr. Carreon, as censorious asshats. I conceived a special dislike for Mr. Carreon. I made up a hashtag game about him, and recruited people to point out where Mr. Carreon and his wife had engaged in rhetoric that was inconsistent with his contrived pearl-clutching horror over the contents of Mr. Inman's blog.

But Mr. Carreon's last sentence suggests that I refused to produce documents a subpoena in a federal case on the grounds that the lawyer issuing it had animus against me.

That is, at the most charitable interpretation, misleading.

Here are the objections I filed to Mr. Carreon's subpoena. As you can see, I objected to the subpoena, and declined to produce documents, on the grounds that (1) some of the communications Mr. Carreon sought were protected by the attorney-client privilege, or by the attorney work product doctrine, and (2) some of them didn't exist and never, so far as I knew, had existed.

The only mention of animus came in the paragraph in which I refused to produce a privilege log. A privilege log is a time-consuming document that would identify each email, its date, its subject, its sender, its recipient, and the basis for the assertion of privilege. It is a burdensome task. In my objections, I refused to produce such a log, on the grounds that Mr. Carreon had no good faith basis to demand the documents, and that the demand was likely made to harass, in light of his animus against me. The point about animus is located in the discussion of the privilege log, after I have refused to produce the documents based on the privilege.

Mr. Carreon's suggestion that I refused to produce documents based on an argument about his animus is, therefore, misleading at best. At worst, it is a deliberate lie to a United States District Judge. Or perhaps it merely represents a failure of even minimal reading comprehension. Mr. Carreon attaches my objections as an exhibit, as the footnote quoted above suggests; whatever this is, it's clumsy.

I leave the decision about which one it is to the reader — and to the judge.

The Oatmeal v. FunnyJunk, Part XII: Brave Sir Charlie Ran Away

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[All of our coverage of Charles Carreon's journey from relative obscurity to justifiable infamy is collected under this tag.]

Charles Carreon continues to be Charles Carreon, only more so.

Back in Chapter Eight I describe how the blogger behind "Censoriousdouchebag — a satirical diary about Charles Carreon" sued Carreon for declaratory relief in federal court in the Northern District of California. That was the most effective way to deal with Carreon's censorious threats to the blogger, which amounted to "I'm going to sue you at some point, in as inconvenient a location as possible, in as expensive a way as possible." Here's a reminder of that threat, directed to the blogger's pro bono attorney, Paul Alan Levy of Public Citizen:

As far as when and where I will sue your client, be certain that it will occur if your client does not cede the domain, and advise her of ten things:
1. That there is essentially no statute of limitations on this claim, and the prima facie laches defense [ed. note: that's an equitable defense that asserts "you waited too long to file this."] would not kick in for at least three years.
2. That venue in this action can be validly laid in at least three places, maybe four, if she doesn't live in Arizona, Florida, or California.
3. That I am capable of employing counsel to handle my claim against her, who will incur attorneys fees and seek recovery of the same. I filed pro se against Inman simply for the sake of convenience and the need for speed, and not from a lack of resources.
4. That the law in this area cannot be predicted with certainty, will evolve substantially over the next three years, during which I will be using digital forensics to establish actual trademark damages in addition to seeking the maximum cybersquatting penalty of $100,000.
5. That a judgment that recites that the domain was obtained by fraud upon the registrar, in the form of a misrepresentation that she did not know of my trademark on the name, might well be non-dischargeable in bankruptcy.
6. That a judgment can be renewed indefinitely until collected, and that California judgments accrue 10% interest, which can compounded once ever ten years by capitalizing the accumulated interest.
7. That you cannot guarantee that Public Citizen will provide her with free legal services on June 1, 2015, when I may very well send the process server 'round to her door.
8. That I have the known capacity to litigate appeals for years (check my Westlaw profile, and of course, the drawn out history of Penguin v. American Buddha, now in its third year, having passed through the Second Circuit and the NYCA, and still hung up in personal jurisdiction in the SDNY).
9. That the litigation, being of first impression in virtually every Circuit, grounded in a federal question, involving a registered trademark, and dispositive of many open issues in the field of Internet commerce and speech, might very well continue for a decade.
10. That Public Citizen might well be unable and/or unwilling to provide her with representation until the resolution of such an extended course of litigation.

Despicably thuggish.

Once the blogger sued him, Carreon could have stood up — he could have come to court to defend his belief that he has a valid claim against the blogger. Instead Carreon has been doing what he can to hinder and delay the lawsuit by cowering and evading service. The blogger — ably represented pro bono by Paul Alan Levy of Public Citizen and Cathy Gellis — has been attempting to serve Carreon, and Carreon has been going to ridiculous lengths to avoid being served. You can read Paul's brief describing Carreon's evasions here, and Paul's supporting declaration here. Or consider the judge's summary in an order from this week:

Plaintiff seeks a declaratory judgment that his satirical website does not infringe the trademark defendant has in his own name. Prior to filing a complaint, plaintiff’s counsel was in contact with defendant via email. After filing the complaint, defendant and his wife publicly discussed the pending litigation. Plaintiff’s counsel mailed defendant a request for waiver of summons to his address in Tucson, Arizona, which defendant did not execute. Instead, the entire envelope was mailed back to plaintiff, unopened, inside a second envelope. This same sequence of events was repeated after plaintiff filed an amended complaint. At plaintiff’s request, the Court issued a summons, and plaintiff hired an Arizona process service company to serve the summons at the residential address. On the first visit, the server announced himself and was told “No thank you,” and left with the papers. On the second and third visits, nobody answered. The process service company then tried to serve the summons and complaint by certified mail, but the package was never claimed.

During this time, defendant contacted the general counsel of Walgreens, plaintiff’s employer, stating plaintiff had used Walgreens’ computer equipment or internet access to create the allegedly actionable website, and implying he might make Walgreens a party to the litigation under a theory of respondeat superior. The demand letter sent to Walgreens contained the same Tucson, Arizona address and email address that plaintiff had been using to attempt service on defendant.
On September 25, 2012, plaintiff’s counsel again emailed defendant a copy of the summons, complaint, and amended complaint using both the address listed on defendant’s letterhead and the gmail address defendant had used to correspond with counsel for both plaintiff and Walgreens.

Plaintiff’s counsel requested defendant meet and confer about plaintiff’s intent to file a motion to declare service effective. Defendant has not responded.

Regrettably, even though Carreon knows about the lawsuit, has written about the lawsuit, has threatened the blogger's former employer about the lawsuit, has refused to accept service from a process server, and has returned the lawsuit unopened, the Court has ruled that the blogger must make further efforts to serve Carreon:

Because of the due process and personal jurisdiction concerns that arise with respect to proper service of a defendant, substituted service by email is not granted out-of-hand. While defendant is apparently making service of process difficult for plaintiff, in accordance with our traditional notions of due process, plaintiff must redouble efforts at traditional service of process before resorting to this Court for authorization of substituted service.

So: now the blogger must pay to have process servers hang out and try to catch Charlie the Censor to serve him. That's an expensive proposition — about $60 per hour, in an effort that can easily take tens of hours if Carreon continues to work to evade service.

The blogger doesn't have a lot of money. Though Carreon will eventually be ordered to reimburse his service costs, right now those up-front costs are a huge barrier to him being able to get justice. This is exactly how censorious lawyers like Carreon can abuse the system to suppress criticism.

Therefore, I'd like to ask for a favor. If you've enjoyed reading this series, please consider making a modest donation to Public Citizen for the purposes of paying costs in this case, including the cost of serving Carreon. Levy's post with the donation link is here. I understand that any excess funds will be used to pay litigation expenses in other Public Citizen online free speech cases. That's a worthy cause.

Perhaps you'll say, "Ken, why don't you put your money where your mouth is?" I'd answer like this: I believe strongly enough in this case that I donated the filing fees and other initial expenses — more than $700 — out of my own pocket. Please step up and throw in a few bucks yourself to help a blogger protect himself from censorious thuggery.

The Oatmeal v. Funnyjunk, Part XI: What Remains

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[All of our coverage of Charles Carreon's journey from relative obscurity to fading infamy is collected under this tag.]

It's been a while since we visited the strange world of Charles Carreon's claims against Matthew Inman and The Oatmeal, hasn't it?

There's been nothing new on the direct confrontation between Charlie the Censor and Inman since Charlie slunk away braying that he had prevailed. Inman has done his level best to troll Carreon by raising more than $1.1 million for a Nikola Tesla Science Center, but Carreon has not risen to the bait. There hasn't even been so much as an effort to tie Tesla to the Freemasons or Rosicrucians or something.

If the Carreon/Inman battle has ended, Charlie the Censor's battles with his detractors have not. You may recall that in Chapter Seven I described how the author of the satirical blog Censoriousdouchebag, aided by Paul Alan Levy of Public Citizen and attorney and blogger Cathy Gellis, took the initiative by filing a declaratory relief action against Carreon. This allowed the blogger to preempt Carreon's contemptible and censorious threats against him by asking a federal judge to rule upon the threats without Carreon himself filing suit.

The suit proceeds — more about that later — but the most notable action has been outside of court. As the blogger himself describes, in July Carreon sent a letter to the blogger's employer, Walgreens. Ostensibly the letter asks Walgreens to preserve digital evidence based on Carreon's unsupported presumption that the blogger must have used Walgreens computers or internet connections to blog about Carreon. The context and content of the letter, however, suggest that Carreon's true motives are retaliation and intimidation. Carreon hopes to get the blogger in trouble with his employer and thus impose a high cost upon his decision to exercise his First Amendment rights to criticize and ridicule Carreon. Remember — Carreon has spent much of his career styling himself as a free speech lawyer.

Now, "please preserve digital evidence" letters can have a legitimate purpose, and are not uncommon. I've sent a few myself (for instance, when a stalker used CraigsList from work to post fraudulent "looking to trade sex for a room" advertisements in the name of a romantic rival.) But they are also a favored tool of legal thugs. Charles Carreon is not himself a convicted domestic terrorist, but by sending this letter he's using a tactic akin to what convicted terrorist Brett Kimberlin used in an effort to intimidate critical bloggers. Carreon's history of conduct in this case suggests his purpose in writing the blogger's employer in this manner. Stay tuned.

[Disclosure: I provided limited legal assistance to the blogger, mostly including helping him find suitable pro bono counsel. Since then, though I have not appeared in the case, I have continued to offer limited pro bono advice. Consider my words accordingly. Nothing in this post reveals attorney-client communications between the blogger, the legal team, and me.]

The Oatmeal v. FunnyJunk, Part X: Philanthropy > Douchebaggery

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[All of our coverage of Charles Carreon's transformation from an obscure attorney to a figure of internet-wide ridicule is collected under this tag.]

It's time for some updates, boys and girls. I'm at an undisclosed location vacationing with the family, so I will by necessity be brief.

Money Talks. In This Case It Says "F.U.": Matt Inman has, as promised, posted pictures of the money he raised for charity. The pictures are beautiful. The triumph of good over evil usually is.

Forget It, He's Rolling: Charles Carreon, having dismissed his suit against Matt Inman, IndieGoGo, and two national charities, has now declared victory. Carreon apparently believes he prevailed because Judge Chen asked Mr. Inman to submit proof that he had written checks to the two charities. But Judge Chen did so in the context of requesting the basis he needed to deny Carreon's application for a temporary restraining order as moot. This is roughly like crowing that you dominated the captain of the firing squad by making him offer you a blindfold and a cigarette before shooting you.

Or perhaps Carreon believes he achieved victory because the cash Mr. Inman photographed was technically his own funds, not the funds he raised and forwarded to worthy charities. If this is what Mr. Carreon needs to live with himself, I say we let him cherish it. Oh, very well done, Mr. Carreon.

The Law Should Be What I Say It Is: Stinging from his recent infamy, Mr. Carreon has started a website called Rapeutation. Because being ridiculed based on your bad behavior is equivalent to sexual assault, you know.

The purpose of Rapeutation — aside from scrawled-on-the-asylum-wall poetry and disturbing videos — is to advocate for a new, rather ill-defined cause of action to address something called "Distributed Internet Reputation Attack":

Distributed Internet Reputation Attack (DIRA): noun, an attack against the reputation of an individual that harnesses the distributed efforts of large numbers of both human and digital Internet zombies to proliferate unmanageable quantities of disparaging information in an effort to alter the conduct of the individual or entity.

The use of the word "zombies" is always a signifier of serious and credible legal analysis.

[T]he frequency of DIRAs makes it apparent that old laws concerning defamation need reforming to take account of the pernicious effects of allowing Internet mobs to run riot, placing meaningful limits on what is fair play in the realm of social media. Suggestions will be made for ways to deal with the problem that will protect publishers from being required to play censor, including the creation of a new DIRA tort.

Even in lashing out, Carreon is unoriginal. Entire-internet-suer Joseph Rakofsky already offered the ass-damp tort of "internet mobbing," which in his case meant multiple bloggers criticizing him for making his very first trial an attempt to defend a man accused of murder. Rakofsky's fawners — the sort who figure that being an underdog is automatically a sign of having a defensible argument — have rushed to promote (in notably ambiguous terms) this supposed tort. And now comes Charlie the Censor.

But I must ask — why is a new tort necessary?

If anyone has uttered false statements of fact about Mr. Carreon, the law provides a remedy through the tort of defamation. That's still true in the internet age – it doesn't matter if the false utterance is made by blog, twitter, or cartoon on Facebook. What change could Mr. Carreon be suggesting?

Unless . . . Mr. Carreon, through the Trojan horse "fair play," is suggesting a major revision of fundamental First Amendment concepts solely to protect his own wounded pride and the feelings of his ilk. Will Mr. Carreon seek to change the familiar, crucial, and exquisitely American concepts that satire and parody are protected speech? Will he seek to erode the rule that statements of opinion cannot be defamatory if they do not imply false statements of fact? Will he seek to overturn the decades of precedent that speech does not fall outside the aegis of the First Amendment simply because it hurts somebody's feelings? Will he offer some insipid and unprincipled volume-based exception to the First Amendment, under which one or two people may criticize him, but ten thousand may not? Is Mr. Carreon foolish enough to imagine for a moment that such exceptions to free speech principles would not be abused — or is he too enraged to care?

People I respect — people I trust — say that Mr. Carreon was in the past a decent man who defended free speech. For such a man to stoop to undermine one of his own principles, and one of the most important principles of American society, is nothing short of tragic.

Oatmeal v. FunnyJunk, Chapter IX: Charles Carreon Dismisses His Lawsuit

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[All of our coverage of Charles Carreon's big day in court is collected under this tag.]

On July 3, 2012, just short of 4 P.M., Charles Carreon filed a notice of dismissal of his lawsuit against Matt Inman, IndieGoGo, the American Cancer Society, the National Wildlife Federation, and (as a party to be joined "if feasible") the Attorney General of California. As drafted, the notice dismisses all parties, including Does.

Mr. Carreon's filing is here.

Some initial thoughts:

1. Mr. Carreon can dismiss the case without leave of court because no party has yet answered.

2. Dismissal is, without court intervention, without prejudice, meaning that Mr. Carreon could re-file if he wanted. Will he? Who knows.

3. Based on some quick research, it appears to me that Mr. Carreon's voluntary dismissal of the action does not preclude Mr. Inman from seeking attorney fees and costs under the Lanham Act. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 394–95 (1990). That doesn't mean that Mr. Inman will, or should, seek fees, for practical reasons too lengthy to discuss in this post. [Edited to add: behold the dangers of "quick research" -- a kind term for "talking out of your ass" or, more popularly, "blogging." This is probably wrong, for reasons I may address in another post. But I leave it up as an example of ass-dampery.]

4. Mr. Carreon could walk away from this particular set of opponents. But somehow I doubt he will. I predict that he will crow that he achieved a victory by "forcing" Mr. Inman and IndieGoGo to handle the charitable contributions differently than they otherwise would have. And I suspect he will continue threatening and suing others. Time will tell.

Edited to add: here's the Electronic Frontier Foundation's statement.

Second, Bizarre Update: Just got a message from a twitter account in the name of Jonathan Lee Riches — who, as Adam Steinbaugh points out, is a vexatious serial litigant who is either crazy or some sort of performance artist. He filed two frivolous motions to intervene in Carreon's case in NDCA.

The purported Jonathan Lee Riches Twitter account said "@Popehat @oatmeal carreon dropped his lawsuit because inman is suing him in another case , # 4:12-cv-00490-rcc , district of arizona tuscon." I checked the Arizona docket and there is, indeed, a pro se lawsuit filed in the name of Matt Inman, using the bizarre and farcical style of Riches. Whether this is actually Riches or someone else doing it for the lulz is unclear.

However, whoever did it, I submit they've crossed a line they may regret. Filing a frivolous and farcical lawsuit as performance art in your own name is one thing. Filing it falsely under someone else's name is a false statement to the courts. It is very arguably a federal felony under 18 U.S.C. section 1001. I often write here about abuse of 18 U.S.C. section 1001 by the government, but I'm going to have to chew over whether or not this ought to be charged as a crime or not.

Oatmeal v. FunnyJunk, Part VIII: Charles Carreon Gets Sued, Paul Alan Levy of Public Citizen Joins The Fray

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[All of our coverage of Charles Carreon's legal voyage of self-discovery is collected under this tag.]

Everyone knows what you do when someone like Charlie the Censor sues you. You lawyer up. If you're very lucky, you have funds to hire a good lawyer, or you can get the backing of extraordinary advocates like those at the Electronic Frontier Foundation.

But what do you do if someone like Charlie the Censor just threatens to sue you at some unspecified future time or place, but doesn't yet? Do you simply wait and see? Do you live your life under that cloud?

Well, you could. But that's chilling. Fortunately, once someone like Charlie the Censor utters frivolous censorious threats, the law offers a remedy to the bold.

You lawyer up, and you take it to him.

(more…)

The Oatmeal v. FunnyJunk, Part VII: Charlie The Censor Files A Motion

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[All of our coverage of the Oatmeal v. FunnyJunk debacle is collected under this tag.]

Here it was, Saturday night, and I was all set for a relaxing evening: a few beers at the Yard House and then a movie with my lovely wife, perhaps a few (or a few dozen) turns of Civ V (with the expansion), and sleep. Or maybe I was going to spend the evening conferring with my shadowy Illuminati brethren, spinning our web to control your destiny. It really depends on whom you ask.

Our pal Charlie the Censor had other plans.

Charles Carreon, fresh from amending his complaint against Matt Inman, IndieGoGo, and two charities, filed an application for a temporary restraining order, seeking court intervention to prevent IndieGoGo from distributing the astounding $220,000 Matt Inman's BearLove campaign raised to fight cancer and help bears.

Adam Steinbaugh scooped me on this, and has both the documents and some good analysis. I learned of it via a PACER email and considered starting a post immediately, then considered the likely consequences if I started typing the standard for preliminary injunctions into my iPhone in the middle of date night, and reconsidered.

I'm only going to offer only limited analysis; I'll provide the opposing briefs when they pop up on PACER. For now, consider this:

1. Charlie the Censor continues to assert that Matt Inman is a "commercial fundraiser for charitable purposes." However, as I noted in Chapter V, the statute doesn't seem to support that claim. Mr. Carreon offers no legal authority or argument for why Inman falls into the definition. To be fair to him, he does assert the proposition "plainly" and "clearly" several times, and I think once he may have said "strenuously," though I may be misremembering that.

2. Charlie the Censor correctly states that preliminary relief (including both temporary restraining orders and preliminary injunctions) are employed by courts to prevent "irreparable harm." However, he fails to note that "irreparable harm" generally excludes pure monetary harm. Such harm is not irreparable because it can be addressed by an award of damages against the alleged wrongdoer. Hence, it is generally not a basis for preliminary injunctive relief. “(P)laintiff must demonstrate potential harm which cannot be redressed by a legal or an equitable remedy following a trial. Los Angeles Memorial Coliseum Comm'n v. NFL (9th Cir. 1980) 634 F2d 1197, 1202 [monetary harm alone does not constitute irreparable harm]. Here, Mr. Carreon is allegedly concerned that Mr. Inman will abscond with the money, or that donors will be deprived of the monetary value of tax write-offs. Both of those harms can be addressed by money. They're not irreparable. There are exceptions, but this will be a problem for him.

3. Charlie the Censor uses the application as a vehicle to accuse Mr. Inman and IndieGoGo of defrauding donors by falsely suggesting that their donations would be tax-deductible. Yet as Adam Steinbaugh pointed out in a comment here, IndeGoGo offers perfectly clear guidance on this subject. In other words, it's so clear that even a Popehat reader can find it.

4. As Adam explains in his post, Charlie the Censor's motion illustrates how petty he is. By filing and amending his lawsuit, he's tried to reframe the narrative to be about him vindicating the rights of donors everywhere, enforcing California charity law, and preventing abuse of charities. But the motion reveals that he was willing to let IndieGoGo off the hook — abandon his opposition to their 4% fee and capitulate on his quest to have a court order them to comply with what Mr. Carreon imagines it to be — if they just agree to breach their contract with Mr. Inman and send the money directly to the two charities. In other words, he wants to save face, to achieve some sort of pathetic victory over Mr. Inman, no matter how mean and small. I find this more pitiful than maddening, actually.

5. Charlie the Censor says, in explaining why the Court should prohibit IndieGoGo from releasing the money to Inman, "[a]lthough he induced many donors to donate,his desire to engage in showboating with the proceeds does not demonstrate the sober, responsible attitude appropriate to the trustee of a charitable fund." Sorry, Charlie, could you repeat that? I think you were saying something about a sober, responsible attitude, but I somehow got distracted.

6. Charlie the Censor seems to have turned down his outrage a few notches regarding the fact that IndieGoGo gets a 4% fee. Perhaps he realized how thoroughly that is disclosed on IndieGoGo's website. Or perhaps he realized that a 96% return to the charities is vastly better than the cut charities usually get from fundraising conducted in their name under the statutory scheme he seeks to impose upon IndieGoGo and Mr. Inman.

7. Charlie the Censor remains outraged that Mr. Inman wants to sully the good reputation of charitable fundraising through a "publicity stunt." This is truly an excellent point. If charity fundraising is characterized by anything, it's high levels of dignity. You'd never see a publicity stunt like people standing in front of a comically outsized check. You'd never see politicians and celebrities using charitable donations for attention. You'd never see something like an eating contest to promote an anti-hunger charity. No, like anything associated with money, it's really quite pure. Thank goodness we have people like Charlie the Censor who are willing to use the legal system to tell people what to think, what to say, and how and why they may donate to charity, to keep it that way. [Or maybe you don't think Charlie the Censor should be telling people what kinds of charitable campaigns shouldn't be allowed because the offend his delicate sensibilities. Maybe you think that it's none of Charlie the Censor's damn business if someone like Matt Inman wants to point to a bad actor -- a bad actor like Charlie the Censor -- to inspire people to donate money to a good cause in defiance. If you feel that way, it's too late to donate to BearLove -- but it's not too late to donate a few bucks to Ann Bransom's campaign, premised on the notion "My intentions in donating my own money are nobody's business."]

Watch for an update Monday night.

FIRST UPDATE: Sunday July 1st, 3:00: PACER just informed me that IndieGoGo filed its opposition. I downloaded it. Here is the memorandum of points and authorities, and the relevant supporting declarations are here and here.

IndieGoGo's opposition is devastating. The main points may be summarized as follows:

1. Even though Carreon filed suit on June 15, 2012, and even though he knew exactly when IndieGoGo would transfer the funds, Carreon delayed until June 28, 2012 to file his application for a TRO — after IndieGoGo had already transferred the money, and after IndieGoGo told Carreon they had already transferred the money. As IndieGogo points out, Carreon offers no explanation for his delay.

2. IndieGoGo explains that it was only ever in possession of about half of the money anyway — the half contributed by credit card. If you contribute at IndieGoGo through PayPal, the money goes directly to the person who started the campaign (here, Mr. Inman.) If you contribute through a credit card, the money goes to IndieGoGo. IndieGoGo gives its estimate of how much was left after fees.

3. At Mr. Inman's request, IndieGoGo distributed the credit card money directly to the two charities, the National Wildlife Fund and the American Cancer Society. So Mr. Inman doesn't get to take his picture with the entire pile of money (only the part that came through PayPal) and Charlie the Censor gets a petulant amoral victory. However, because Charlie the Censor was willing to abuse litigation and frustrate the charitable purpose of Mr. Inman's campaign, Mr. Inman's approach was strategically sound. The pedagogical point that Mr. Inman could have achieved by taking the picture has been achieved by the nationwide attention to Mr. Carreon's appalling and unprofessional behavior.

4. IndieGoGo argues, as I did above, that because this involves money, there is no showing of irreparable harm, and thus preliminary injunctive relief is inappropriate.

5. IndieGoGo argues that it is immune from Charlie the Censor's cause of action against it under Section 230 of the Communications Decency Act, which generally speaking says that online service providers are not liable for the postings of their guests and customers. (That's why if you post something defamatory on Facebook, Facebook is not liable the way a newspaper would be if it printed your op-ed making the same defamatory statement.)

6. IndieGoGo — unlike Charlie the Censor — engages in a thoughtful and persuasive discussion of pertinent authorities on California charity law, and establishes rather convincingly that he lacks standing to sue. (Charlie the Censor probably foresaw this argument, which is why his First Amended Complaint attempts to drag the California Attorney General into the case.)

This is an extremely well-drafted rebuke to Charlie the Censor and would be humiliating to any normal attorney. In the case of Charlie the Censor, he'll probably try to sue PayPal next.

SECOND UPDATE: July 1: [I made you an original version of this update, but apparently I eated it.] The Electronic Frontier Foundation has filed their opposition on behalf of Mr. Inman. It's awesome. So is their commentary.

Just a few important points from the opposition:

1. The EFF eviscerates Carreon's argument that Mr. Inman is a commercial fundraiser, using — and I know this will be shocking if you have been following the case so far — actual law.

2. The EFF invokes the First Amendment in a way that IndieGoGo does not, explaining that charitable fundraising is protected speech entitled to more deference than standard commercial speech, and thoroughly refuting Mr. Carreon's quasi-Victorian couch-fainting (and deeply hypocritical) approach to fundraising decorum.

3. The EFF ably demonstrates that Mr. Inman did not, in fact, make any false statements about the fundraiser.

4. The EFF offers an answer — a resounding "no" — to the now common question "can Charlie the Censor manufacture standing by just making a donation?" Again bringing law to Mr. Carreon's rhetoric-fight, the EFF demonstrates that Mr. Carreon has no standing to police charities under California law.

The rest is entertaining rubble-bouncing. That's going to leave a mark.

THIRD UPDATE: July 2, 2012 at 3:30 PST: Judge Chen has issued an order asking Mr. Inman to submit evidence that he has, in fact, sent checks to the two charities, suggesting this would make the motion moot. This is a very strong indication that Judge Chen will deny the motion as moot if Mr. Inman supplies the evidence.

Fourth Update: July 3, 2012 at 3:30 PST: Mr. Inman's attorney responded to the Court's order by filing a declaration indicating that he personally mailed the checks written by Mr. Inman to the two charities. That's it. Really nothing to see.

The Oatmeal v. FunnyJunk: Request For Pro Bono Help In Bay Area

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[Note: our prior coverage of the Oatmeal v. FunnyJunk debacle is collected in this tag.]

The Popehat Signal

Thanks much to the lawyers, law students, paralegals, technical experts, and others who have previously offered pro bono help to people caught up in Charles Carreon's litigation arising from The Oatmeal v. Funnyjunk perfect storm of internet ridiculousness.

I'm writing today, and throwing up the Popehat Signal, to make a very specific follow-up request. I'm looking for a lawyer admitted in United States District Court for the Northern District of California, and preferably working in the Bay Area, to act as pro bono local counsel for someone involved in this case. Lead counsel is a figure of unmitigated awesomeness and consummate qualifications for the case at hand. [Please do not speculate about details in the comments. You'll find out soon enough.]

Drop me an email, please.

Update: Charles Carreon Files First Amended Complaint

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Just a very brief update in the Oatmeal v. FunnyJunk saga — Charles Carreon has filed a First Amended Complaint.

I've downloaded it from PACER. It's available here.

Busy day ahead, but I hope to offer commentary by tomorrow morning.

Edited to add: I've praised PACER as a resource for citizens to become informed about court proceedings and practice investigative blogging — for instance, in my Anatomy of A Scam Investigation series. If you are interested in a particular federal case, you can get a PACER account and sign up for automatic email notifications each time a document is filed in the case. You'll know what's happening as quickly as the media and participants do.

The Oatmeal v. FunnyJunk, Part VI: The Electronic Frontier Foundation Steps In

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Note: All of our coverage of the Oatmeal v. FunnyJunk matter is collected under this tag.

Only a very brief update today. Matthew Inman of The Oatmeal was already represented by the eminently qualified Venkat Balasubramani, whose initial response to Charles Carreon's bumptious demand was near-perfect. Today the Electronic Frontier Foundation announced that it would be joining the fight at Venkat's side.

“This lawsuit is a blatant attempt to abuse the legal process to punish a critic,” said EFF Intellectual Property Director Corynne McSherry. “We're very glad to help Mr. Inman fight back.”

Aces.

So, it looks like Matthew Inman is going to be just fine without likes of me or even Kevin. Nonetheless, it's not year clear who is representing the charities or IndieGogo, let alone the satirists and critics who may next be the subject of Carreon's wrath. So: my offer to attempt to find and coordinate pro bono help to any defendant (named or Doe) in this case remains. Thanks again for the many kind offers of help from lawyers, law students, and other professionals. (Fair warning: I may keep you in mind next time some other blogger is threatened with a bogus suit.)

First Edit: By the way:

Ironically, the threat of the first lawsuit never materialized. Carreon admits he was misinformed: Before demanding the $20,000, which was based on FunnyJunk's "estimate of advertising losses sustained due to the taint of being accused of engaging in willful copyright infringement," Carreon was told that all Oatmeal comics had been taken off the FunnyJunk site, even though they hadn't. "If I had known… no demand would have gone out," he says.

Correct me if I am misinterpreting it, but it sure sounds to me like Mr. Carreon is revealing a confidential attorney-client communication between himself and FunnyJunk in order to make himself look less ridiculous. Did FunnyJunk authorize Mr. Carreon to make that disclosure, which could prejudice FunnyJunk?

The Oatmeal v. FunnyJunk, Part V: A Brief Review of Charles Carreon's Complaint

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

Background: our previous coverage of the epic and (epically ridiculous) battle between FunnyJunk attorney Charles Carreon and The Oatmeal can be found here: Part I, Part II, Part III, and Part IV.

A few days ago I discussed a report — which proved true — that FunnyJunk's attorney Charles Carreon had sued Matthew Inman of The Oatmeal, IndieGoGo, and two charities in a fit of what can only be described as unbalanced, from-Hell's-heart-I-stab-at-thee pique.

Today, as promised, I'm going to talk a bit about the merits of — no, the substance of — you know, scratch that. I'm going to talk about the butthurt that Charles Carreon angrily crayoned down and chucked at a federal judge.

(more…)

The Oatmeal v. FunnyJunk, Part IV: Charles Carreon Sues Everybody

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

Background: the previous entries in our coverage of Charles Carreon's bizarre and contemptible behavior on behalf of his client, FunnyJunk, against The Oatmeal can be found here at Part I, Part II, and Part III.

On Friday, June 15, 2012, attorney Charles Carreon passed from mundane short-term internet notoriety into a sort of legal cartoon-supervillainy.

He transcended typical internet infamy when he filed a federal lawsuit last Friday in the United Sates District Court for the Northern District of California in Oakland. He belonged to the ages the moment he filed that lawsuit not only against Matthew Inman, proprietor of The Oatmeal, but also against IndieGoGo Inc., the company that hosted Inman's ridiculously effective fundraiser for the National Wildlife Federation and the American Cancer Society.

But that level of censorious litigiousness was not enough for Charles Carreon. He sought something more. And so, on that same Friday, Charles Carreon also sued the National Wildlife Federation and the American Cancer Society, the beneficiaries of Matthew Inman's fundraiser.

Yes. Charles Carreon, butthurt that someone had leveraged his douchebaggery into almost two hundred thousand dollars of donations to two worthy charities, sued the charities.

I learned of this from Kevin Underhill, a Northern California attorney and proprietor of Lowering the Bar. If you don't already have Lowering the Bar in your RSS feed or your bookmarks, go put it there now. Now. There is no better site on the internet for simultaneously teaching and entertaining about the legal system.

Kevin emailed me because he spotted a notice from Courthouse News Service that Carreon had filed suit on Friday. The suit is not available on PACER as of the time of this writing. Here's what little Kevin found, and told me, from CNS:

1. The lawsuit is captioned Charles Carreon v. Matthew Inman; IndieGogo Inc.; National Wildlife Federation; American Cancer Society; and Does [Does are as-of-yet-unnamed defendants], Case No. 4:12 cv 3112 DMR.

2. Charles Carreon appears as "attorney pro se," meaning "I am attorney but am representing only myself" and "I will continue to wreak havoc until forcibly medicated."

3. CNS included the following description of the case, which is most likely drafted by CNS upon review of the complaint: "Trademark infringement and incitement to cyber-vandalism. Defendants Inman and IndieGogo are commercial fundraisers that failed to file disclosures or annual reports. Inman launched a Bear Love campaign, which purports to raise money for defendant charitable organizations, but was really designed to revile plaintiff and his client, Funnyjunk.com, and to initiate a campaign of "trolling" and cybervandalism against them, which has caused people to hack Inman's computer and falsely impersonate him. The campaign included obscenities, an obscene comics and a false accusation that FunnyJunk "stole a bunch of my comics and hosted them." Inman runs the comedy website The Oatmeal."

Now, that summary, most likely written by CNS, may be flawed; thorough analysis must await getting a copy of the complaint. But to the extent the summary is accurate, it suggests a number of patent defects in the complaint. First of all, Carreon — appearing pro se — doesn't have standing to sue for false statements against FunnyJunk, or for trademark violations against FunnyJunk. Second, if the "trademark infringement" is premised on the notion that The Oatmeal violated Charles Carreon's trademark in his own name by criticizing him, it is knowingly frivolous for the reasons set forth in the excellent letter Mr. Inman's attorney sent. Inman's discussion of Charles Carreon was self-evidently on its face classic nominative fair use, because it named him to shame him and not to make commercial use of his name. Similarly, I can say that Charles Carreon remains a petulant, amoral, censorious douchebag without violating his trademark because that's nominative, not commercial.

Further analysis must await review of the complaint, which should be available to the public soon. Note that there is no way to tell yet — without the complaint — the causes of action he has levied against the charities. He may have sued them only for injunctive or declaratory relief.

Charles Carreon is entitled and self-righteous to an abnormal degree, as you can see in these comments to Nick Nafpliotis, who did a great job tracking him down and interviewing him. In that interview, Carreon used a tactic that is now typical of litigious and thin-skinned people who are introduced to the Streisand Effect — he indulged in some good old-fashioned Godwinizing and quasi-Victorian pearl-clutching and couch-fainting:

I don't know if you're familiar with his cartooning–people having their heads thrown in a chipper, his character of a pterodactyl consuming blended brains with gusto–I've actually never seen anyone incite people to violence in that fashion."

. . . .

"It might not have seemed very dehumanizing when Walt Disney made Japanese people look silly with buck teeth and big glasses who could not pronounce their 'R's or their 'L's. But it was dehumanizing, and the purpose was to direct evil intentions against them, which ultimately resulted in the only nuclear holocaust that ever occurred in the history of humanity. I don't think Truman would have ever done that if we hadn't so dehumanized the enemy."

When you evaluate Charles Carreon being shocked and appalled at the violence in cartoons on The Oatmeal (which are milder, in fact, than many things you can see on South Park), and when you consider his contrived opposition to people "dehumanizing" the opposition, bear in mind that the site he and his wife run includes badly photoshopped cartoons of George W. Bush and Condoleeza Rice having sex, and a song about Rice by Charles Carreon himself with a picture of Rice photoshopped to appear topless on a can of "Tits and Rice" soup. (Betcha there's more on their site; I haven't waded through all of the nutty incoherent sub-normal muck yet.) So: in addition to being a censor, Carreon is a hypocritical tool. He's the most universally scorned figure in the schoolyard: bully who can dish it out but can't take it.

But those are words. Carreon has filed suit. That's action. It calls for action in return. So act.

1. Kevin and I have offered pro bono help, and will be recruiting other First Amendment lawyers to offer pro bono help. It's not just Mr. Inman who needs help. IndyGoGo does to. So do the charities. No doubt the charities already have excellent lawyers, but money that they spend fighting Carreon (whatever the causes of action he brought) is money that they don't have to fight cancer and help wildlife. That's an infuriating, evil turn of events.

2. You could still donate through the IndieGoGo program The Oatmeal set up. Or you could donate directly to the American Cancer Society or the National Wildlife Federation. I like animals, and I loved my mother who died at 55 of cancer, but I have no qualms whatsoever about encouraging people to donate to those causes as part of a gesture of defiance and contempt against Charles Carreon and the petulant, amoral, censorious douchebaggery he represents.

3. Spread the word. Tell this story on blogs, forums, and social media. Encourage people to donate as part of a gesture of defiance of Charles Carreon and entitled butthurt censors everywhere. Help the Streisand Effect work.

4. Do not, under any circumstances, direct abusive emails or calls or other communications to Mr. Carreon. That helps him and hurts the good guys. I don't take his claims of victimhood at face value — not in the least — but such conduct is wrong, and empowers censors.

Up next: an analysis of the complaint once it is available, and a discussion of federal court options. (Maybe. As I said before, it may be more instructive for Mr. Carreon to learn about those by finding himself on the business end of them.)

Edit One: Kevin's post is up at Lowering the Bar.

Edit Two: As of 745 PST Monday, I have the complaint from various sources. You can find it at Carreon's website, though caution is probably warranted there. I have the unredacted version, and haven't yet compared it to the redacted version that Carreon publishes.

I'll discuss my analysis of the complaint when time permits. However, that analysis is likely to be quite limited, as I think the best policy is to keep the powder dry for the Rule 11 motion and motion to dismiss. In brief, however, Carreon names the two charities and IndieGoGo to seek to have the proceeds of the fundraiser held in a charitable trust and to force the charities to "police" fundraisers using their name so that people like Carreon won't be butthurt. His trademark claim is premised on an obviously fake and satirical Twitter account that used his name to parody him for a couple of days; he accuses Inman "upon information and belief" (meaning "without evidence") of being behind it. He also sues Inman and Does for "Inciting and Committing Cybervandalism In the Nature of
Trespass to Chattels, False Personation, and Identity Theft," on the theory that Inman is liable for things that people allegedly did to him. Uh-huh. It's not as illiterate as I expected, but it's definitely overtly petulant-entitled-crazypants.

Edit Three: As a consequence of the Streisand Effect, many people are already examining and critiquing the complaint closely. From commenter W. Ross, we already have an easily provable false statement of fact from the complaint.