Note: our entire series of posts about the Oatmeal v. Funnyjunk situation is now complied under the Oatmeal v. Funnyjunk tag.
Yesterday afternoon, I started getting tweets and emails (to both my work and Popehat accounts) and Facebook messages tipping me to a bogus-lawsuit-threat-on-the-internet story. As of this writing I have received thirty-one tips and suggestions that I offer pro bono help to the recipient of the threat. For a while I was tempted to regard this as a reflection of my own notorious puissance, and my look-at-me-I'm-the-fucking-BATMAN attitude grew until it threatened to collapse into a noisy singularity of self-regard.
Then I realized: the flood of mail is not a reflection of me. The flood of mail is a reflection of The Oatmeal being unspeakably awesome. I'm just the towel-boy they shout for to wipe the glistening beads of asskickery from The Oatmeal's noble brow.
Turns out I'm OK with that.
People were writing me because they know, from reading this or this, or from seeing the Popehat signal, or from posts sparring with bogus-lawsuit-threateners, that I offer and coordinate pro bono help for bloggers faced with bogus defamation threats. The Oatmeal, unfortunately, is now the victim of such a threat.
No, wait. That's really not fair. Strike "victim" and "unfortunately."
Here's the bullet. There's a site called FunnyJunk. FunnyJunk lets its users post amusing things they find elsewhere, like videos and pictures and cartoons. Given the sort of people who hang out on FunnyJunk — a crowd I shall describe later — much of what is posted there is other people's work, scraped and slapped up without permission or attribution. FunnyJunk — which makes money from the advertising on its site, and gets traffic based on what is posted by its users on its site — maintains that it does not support such conduct and that it responds to copyright notices. Last year The Oatmeal called bullshit on this model, and FunnyJunk and its flying monkeys responded in classic passive-aggressive, whiny-entitled, mommy-mommy-he-beat-me-twice-at-Counterstrike-it's-not-FAIR form.
So. This week, The Oatmeal got a bogus legal threat from Charles Carreon, ATTORNEY AT LAW. Mr. Carreon was involved in the sex.com case some time ago, a fact he conceals in roughly the same way that Al Bundy conceals that he used to play football for Polk High. Mr. Carreon threatens a federal lawsuit for defamation and false advertising under the Lanham Trademark Act [sic]. He does so based on the fiction that FunnyJunk is "a competitor of the Oatmeal in the field of online humor." This is true in the sense that Sting is in competition with the homeless busker singing "Englishman in New York" in the subway. I can't do justice to The Oatmeal's explanation of why the claims are factually bogus. I will note, however, that Mr. Carreon and FunnyJunk are by far the first people to try the "you named me when you said mean things about me; that's a trademark violation" gambit in a creative-like-a-preschooler-with-paste-and-glitter attempt to evade the protections of the First Amendment. Courts are increasingly getting wise to this attempt to abuse trademark law to chill free speech. I'd explain more, but I'd prefer for FunnyJunk and Mr. Carreon to enjoy a voyage of legal discovery themselves at the appropriate juncture.
Mr. Carreon, by the way, demanded that The Oatmeal take down its criticism, and demanded the sum of TWENTY THOUSAND DOLLARS. The Oatmeal, instead, solicited money for wildlife and for cancer research, and has already reaped five times his $20k ask. Thus The Oatmeal in the space of 24 hours has already accomplished more for humanity than the collective members of FunnyJunk could do in a lifetime, even if that lifetime terminated immediately by a collective donation of vital organs to what presumably would be an extremely lax and non-judgmental medical facility.
The dispute led me to examine FunnyJunk. I found quite a few unattributed images that other people had created and posted elsewhere. I found people supporting The Oatmeal by saying that the FunnyJunk moderator was acting like "a Jew." I found people demanding to have The Oatmeal situation explained to them briefly; people too lazy to click links; people who would need others to provide them with an executive summary of a lolcat caption. I found people angry at The Oatmeal because they are entitled — not only to free content, not only to free content they can reach instantly on the internet, but entitled to their free content served directly to their cheeto-dusted fingers at their favorite ass-ugly hangout by their good pal, user nigg3rzsuklol. FunnyJunk appears to be broken into three categories: (1) a few normal people who are unchoosy about where they view their reheated memes; (2) unloved and unwashed twelve-year-old boys, steeped in the internet tradition of poseur nihilism, the sort of twelve-year-old boys you hope will not hang out with your children, the sort of twelve-year-old-boys from the neighborhood who seem utterly unsupervised, unfed, and grimier than a crack-den's doorstep, the sort of twelve-year-old boys who inspire a secret and guilty sigh of relief and satisfaction when they are sent away to a secure "academy" and thereafter are only seen lurking, oddly dressed and glaze-eyed, in the back of family pictures; and (3) people whose lives are so unutterably sad that they feel cooler by hanging out with group (2).
So I guess what I'm saying is that I back The Oatmeal in this fight.
It's not going to go well for FunnyJunk. Even if the threat letter wasn't simply stagecraft — a big assumption — they're going to get curb-stomped in court, whether in initial motion practice or in a proctological discovery campaign waged by free-speech-supporting pro-bono lawyers (let's just say I'm not the only one offering to help). Their lawyer has just given himself +eleventy in "censorious twatwaffle" on Klout, and the Streisand Effect is looming.
Pack it up and go home, FunnyJunk. This isn't going to turn out well for you.
Edited To Add: Marc Randazza, whose First Amendment credentials are extraordinary, and who has routinely stood up against thuggish threat letters, has this to say about Mr. Carreon:
I have known Charles for a few years, and know him to be one of the good guys. I did ask him "what the fuck were you thinking?" when I first saw his letter.
I think he just made a judgment error, which is different from saying that this event exposes a latent character flaw. I've never known him to do anything like this before, and I am prepared to give him a First Amendment mulligan. Let he who has never fucked up before cast the first stone. Well, ok, cast stones even if you have fucked up — since he might have asked for it and he can likely handle it, but I ask everyone to try and remember that Charles has been on the right side of the good fight far more times than he's been on the wrong side. On balance, he's one of the good guys, and I think he's engaging in some valuable self-reflection right now — which is itself a sign that he is one of the good guys.
This doesn't change my evaluation of the letter in question. But Marc's word is worth a lot with me, and I recognize that anyone — perhaps especially a lawyer — can take a very wrong-headed approach to something on a bad day.
Second Edit: OK, with all respect to Marc, I take back my charitable thoughts based on his words about Charles Carreon. According to MSNBC:
Carreon tells me that Inman's blog post was interpreted as a complaint — similar to a DMCA takedown notice — and that the content the cartoonist listed in it was removed from the FunnyJunk website promptly. He also explains that he believes Inman's fundraiser to be a violation of the terms of service of IndieGoGo, the website being used to collect donations, and has sent a request to disable the fundraising campaign. (The fundraising website has only responded with an automated message so far.)
So, The Oatmeal tried to turn this into something good — something that would benefit wildlife protection and cancer research — and Charles Carreon had a snit and tried to shut it down because it was embarrassing to him and his client?
Fuck him. He's vermin. He's not forgivable. Let any good he has ever done be wiped out. Let the name "Charles Carreon" be synonymous with petulant, amoral censorious douchebaggery.
Third Edit: In fairness to Marc, I gave him a shot at amending his prior statement, which he did:
Despite my earlier charitable comments, I can not find any words to defend trying to shut the fundraiser down. I can't even gin up a minor benefit of the doubt on that one. I can see an ill-considered demand as a mistake in judgment while hoping to gain an advantage for your client. But taking a shot at the fundraiser would not do that – it would just be lashing out to hurt bears and cancer patients? Holy fucking shitballs inside a burning biplane careening toward the Statue of Liberty, Captain! I hope that the reporter merely got the story wrong, because if not, that's more fucked up than a rhino raping a chinchilla while dressed up in unicorns' undergarments.
Fourth Update: In in this follow-up post I critique Carreon's suggestion that his letter was not bullying, but making fun of it is.
Fifth Edit:Welcome, really alarmingly large number of Darths & Droids
readers. We are Star Wars geeks here, though we more often write about free speech and abuse of the legal system and stuff. To prove our bona fides, and show the connection between your favored topics and ours, the talented PencilBloke made you a drawing:
Sixth Edit: OK, our legal department is insisting that I make clear that I am not claiming that Charles Carreon is in Ewok. As far as I know, he is not. He actually more reminds me of JarJar. I'm not saying that FunnyJunk is an Ewok either. It's more like the Sarlacc Pit.
Seventh Edit: More ligitious Ewoks:
Nathan Burney's Ewok achieves personal service whilst on meth:
Gretchen Koch's Ewok is better dressed than I am. Not that that's a high bar, most days:
Last 5 posts by Ken White
- A Response To Marc: Institutions, Agendas, and the "Culture War" - January 13th, 2016
- Lawyering Is About Service, Not Self-Actualization - January 11th, 2016
- Lawsplainer: Was FAU Prof. James Tracy Fired in Violation of His First Amendment Rights? - January 7th, 2016
- Defy, Defy, Defy. - January 7th, 2016
- President Obama And The Rhetoric Of Rights - January 5th, 2016