The Oatmeal v. Funnyjunk: How The Court Of Public Opinion Beats The Court Of Baseless Legal Threats

from the funny-cause-it's-true dept

About a year ago, Matthew Inman wrote a short article highlighting Funnyjunk, one of the many image aggregating sites on the internet. This article, titled What should I do about FunnyJunk.com? was a short exploration of his impression of the site and some of the complaints he had about it. Primary among them was that the site hosted copies of his comics without attribution or links back to his site. Other than that, his complaints revolved around the shear ugliness of the site (they still have not updated it). He ended that exploration with a level-headed look at the big picture.
I realize that trying to police copyright infringement on the internet is like strolling into the Vietnamese jungle circa 1964 and politely asking everyone to use squirt guns. I know that if FunnyJunk disappeared fifty other clones would pop up to take its place overnight, but I felt I had to say something about what they're doing.
No legal threats. No claims that this site was destroying his business. Just a recognition of the issues and a call for a discussion about it with Funnyjunk. Funnyjunk then responded with a rather hyperbolic claim that The Oatmeal was going to sue the site and have it shut down. Clearly not the case. Matthew had thought that was the end of the issue. Until recently.

Yesterday, Matthew wrote on his blog that Funnyjunk has sent him legal papers threatening the Oatmeal with a defamation suit. The letter makes a wide array of claims, some correct and some just outright weird. Matthew does a fairly good job of taking apart each of the claims against The Oatmeal. So I will let you read through those on your own. Our interests lie, rather, in some of the finer points of this dispute.

Funnyjunk, as a user generated content site, is probably protected by the DMCA, something it goes through great pains in its legal letter to explain. Much like Imgur or Youtube, as long as it complies with the DMCA (i.e., has a registered agent, properly responds to takedowns, does not "induce" infringement), it is likely protected. However, that really isn't at issue here. No one but Funnyjunk has brought up the DMCA or talked about lawsuits.

Instead, I think it is time to hearken back to a few years ago when we talked about something similar happening in the comedy business. The idea is that social mores and rules can result in punishment of what society feels is unfair or unethical. So although Funnyjunk is working within the bounds of current law, it was still perceived as doing something unethical and the community responded appropriately. Much the same way the comedian who copied his jokes was shunned by the community.

Which leads us to one of the key complaints made by Funnyjunk, that Matthew's blog post "injured Funnyjunk in its trade, business or profession." That is most likely true considering the power of enforcement through social norms. The Oatmeal has a very strong following around the internet (274,924 followers on Twitter, nearly 600,000 on Facebook). So of course those people would be upset when Matthew is upset and they would probably respond in kind (it helps when Matthew actually asks his fans to respond). This is completely normal. But telling people your opinion as to why you dislike a particular site, and letting them make their own decision about it isn't illegal. It's kind of the crux of how our system of free expression works.

Perhaps most interesting of all, Matthew has also taken this public shaming of Funnyjunk to a new level. In response to this legal threat demanding $20,000, Matthew has decided to instead raise that money and donate it to charity. He has done this because he feels that Funnyjunk's claim of defamation has no merit and he does not want to deal with a lawsuit over the next year. As a result of this very public slap in the face, The Oatmeal raised $20,000 in 64 minutes. It has raised over $100,000 at the time of this writing. None of which is going to Funnyjunk.

In the end, it seems like a great lesson from pretty much every direction. It's an example of where you don't need to rely on laws to make things right -- and, in fact, the one party who tried to rely on laws (by being way way way way too overaggressive) gets "punished" in the court of public opinion instead. Seems like a good solution all around... though we haven't yet seen how Funkyjunk will respond. If they're smart, they'll either apologize (very very publicly) or just shut up about all of this.


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    Yakko Warner (profile), Jun 12th, 2012 @ 1:28pm

    Please let Funnyjunk pursue this

    For purely selfish reasons, I hope Funnyjunk presses their attack. Not that I want Oatmeal to have to go through the hassle of the courts (he's had a couple offers of free help, so it would likely only cost him time and annoyance), but I find it quite entertaining seeing him draw new cartoons to publicly shame and trounce Funnyjunk.

     

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      The eejit (profile), Jun 12th, 2012 @ 1:32pm

      Re: Please let Funnyjunk pursue this

      It's even funnier when you consider that Funnyjunk was supposed to take over /b/ s the meme generator of choice. Added to that, it really is like someone took the Ugly Stick and beat the website until it looked like the wrong end of a nuclear bus.

      Also, Lol Streisanded!

       

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        Some Other AC (profile), Jun 12th, 2012 @ 3:06pm

        Re: Re: Please let Funnyjunk pursue this

        "Added to that, it really is like someone took the Ugly Stick and beat the website until it looked like the wrong end of a nuclear bus."

        You are being too kind, sir. This site looks like some chewed up all of the content, vomited, and the splatter painted it across the page.

         

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          TtfnJohn (profile), Jun 12th, 2012 @ 7:28pm

          Re: Re: Re: Please let Funnyjunk pursue this

          Actually Funnyjunk's site looks like the designer read the first 25 pages of HTML for Dummies 1st Edition and then designed and launched the site.

          AFTER a might in the local pub sampling the newest beers in vast quantities.

           

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    Androgynous Cowherd, Jun 12th, 2012 @ 1:38pm

    Did anyone ...

    Did anyone ever tell Funnyjunk that trying to police defamation on the internet is like strolling into the Vietnamese jungle circa 1964 and politely asking everyone to use squirt guns?

     

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    GMacGuffin (profile), Jun 12th, 2012 @ 1:44pm

    Wikipedia is fast!

    Har, Wikipedia's already updated to discuss this "dispute." - No, I won't link to it...

     

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    Anomylous, Jun 12th, 2012 @ 1:50pm

    Funnyjunk isn't entirely wrong

    It technically is incorrect to say that Funnyjunk stole the content, since Funnyjunk IS DMCA protected and DOES remove content after complaints. So in that sense, the Oatmeal did commit defamation.

     

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      duffmeister (profile), Jun 12th, 2012 @ 1:53pm

      Re: Funnyjunk isn't entirely wrong

      If saying something like that in an obviously humorous fashion is defamation, then I am in trouble.

       

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        Anonymous Coward, Jun 12th, 2012 @ 2:30pm

        Re: Re: Funnyjunk isn't entirely wrong

        Apparently it was not obvious to everyone. It certainly wasn't to me.

        Where is the small disclaimer that says "this is actually humor and not meant seriously"?

         

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          Chosen Reject (profile), Jun 12th, 2012 @ 2:33pm

          Re: Re: Re: Funnyjunk isn't entirely wrong

          I'm not sure if you are serious, or if you just forgot your disclaimer.

           

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            Anonymous Coward, Jun 12th, 2012 @ 3:08pm

            Re: Re: Re: Re: Funnyjunk isn't entirely wrong

            I am serious. What's the objective, unbiased test to determine if something is humor or not?

            If I threaten to kill somebody and when I'm arrested, I claim it was only humor, how will the judge decide whether or not to believe me?

            So far all I hear is that "it's common sense/obvious that it was humor". That's nice, but how do we objectively decide what common sense and obvious is?
            Do we give famous humorists/comedians a "get out of slander accusations free" card?

            I'm inquiring about how this works in the law.

             

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              bratwurzt (profile), Jun 13th, 2012 @ 1:43am

              Re: Re: Re: Re: Re: Funnyjunk isn't entirely wrong

              You're going the Clinton way?

              "It depends on what the meaning of the word 'is' is." ?

              Did not pan out that good for him...

               

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                nasch (profile), Jun 13th, 2012 @ 7:02am

                Re: Re: Re: Re: Re: Re: Funnyjunk isn't entirely wrong

                Did not pan out that good for him...

                Really? He kept his job and didn't get convicted of anything. That doesn't sound so bad.

                 

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                  AndyD273 (profile), Jun 13th, 2012 @ 8:56am

                  Re: Re: Re: Re: Re: Re: Re: Funnyjunk isn't entirely wrong

                  He did get impeached.
                  He just didn't leave office.
                  I don't know how that works.

                   

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                    hobo, Jun 13th, 2012 @ 9:09am

                    Re: Re: Re: Re: Re: Re: Re: Re: Funnyjunk isn't entirely wrong

                    Impeach != convict.

                    Impeachment is akin to a formal accusal or bringing a case to trial, at least in the U.S. Being an accused liar does not make one a convicted liar nor an actual one.

                     

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              Andrew F (profile), Jun 13th, 2012 @ 11:46pm

              Re: Re: Re: Re: Re: Funnyjunk isn't entirely wrong

              Under the legal system, the jury decides if it was a joke. If the parties have waived their right to a jury trial, the judge decides if it was a joke.

               

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        Dave, Jun 13th, 2012 @ 12:07pm

        Re: Re: Funnyjunk isn't entirely wrong

        Actually, they're entirely wrong. He spoke the truth, that is a defense to any defamation claim. They took his IP without attributing it to him. They lose. It's literally that simple. Also, anything he did say was either based on fact or opinion that no one would suspect as an assertion of fact.

         

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          nasch (profile), Jun 13th, 2012 @ 1:07pm

          Re: Re: Re: Funnyjunk isn't entirely wrong

          He spoke the truth, that is a defense to any defamation claim. They took his IP without attributing it to him. They lose. It's literally that simple.

          I'm not saying the defamation claim has any legs. But if he said that somebody "stole" his comics, that is not factually accurate. His comics were copied, not stolen. His intellectual property rights were infringed; his intellectual property was not taken from him.

           

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          Andrew F (profile), Jun 13th, 2012 @ 11:49pm

          Re: Re: Re: Funnyjunk isn't entirely wrong

          I think the argument is that they didn't (directly) take his IP. FunnyJunk is like YouTube. FunnyJunk's users uploaded the images, not FunnyJunk itself.

           

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      Anonymous Coward, Jun 12th, 2012 @ 1:56pm

      Re: Funnyjunk isn't entirely wrong

      Do they lose their safe harbors by acknowledging the content is there? I'm no fan of the DMCA. I'm just curious how it applies in this specific instance.

       

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      E. Zachary Knight (profile), Jun 12th, 2012 @ 1:59pm

      Re: Funnyjunk isn't entirely wrong

      So then the MPAA, RIAA, ESA and the BSA can all be sued for defamation by all these sites they accuse of "stealing" their content?

       

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        Anonymous Coward, Jun 12th, 2012 @ 2:31pm

        Re: Re: Funnyjunk isn't entirely wrong

        Yes they can, since they are big corporations.

        But the Oatmeal is a little guy, an independent artist, so they should get a free pass at slander and defamation.

         

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          E. Zachary Knight (profile), Jun 12th, 2012 @ 2:50pm

          Re: Re: Re: Funnyjunk isn't entirely wrong

          Not sure what you are responding to. I was asking a question that was meant to lead to the thought "Oh, maybe suing someone for stating their opinion of your actions is a bad idea." Neither The Oatmeal's or the MPAA etc should be sued for saying that copyright infringement is stealing.

           

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            Anonymous Coward, Jun 12th, 2012 @ 3:15pm

            Re: Re: Re: Re: Funnyjunk isn't entirely wrong

            In your original post you did not ask if they could be sued for saying copyright infringement is stealing. You asked if they could be sued for accusing websites of infringing copyright. And yes, they can be sued for that, especially if they can't prove copyright infringement.

            I will point out to you that an accusation is not opinion but a statement of fact - it's a statement that somebody has done something.

            I was also referring to the fact that everyone jumps on the RIAA/MPAA when they accuse legitimate websites of copyright infringement, but when an independent artist does it, a lot of people rush to his defense. I think you and I at least agree that somebody is given preferential treatment, we just don't agree what that treatment should be.

             

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              The Groove Tiger (profile), Jun 12th, 2012 @ 4:33pm

              Re: Re: Re: Re: Re: Funnyjunk isn't entirely wrong

              Coward, we see what you are doing.

              You're equating the "little guy" complaining about "infringement" (neither taking down nor suing) with the RIAA/MPAA going on a full legal barrage to take stuff down, putting people in jail for the same perceived "infringement".

              Then you are equating community "jumping on" (threatening with defamation) the RIAA/MPAA for that completely hostile and aggressive behavior, to FunnyJunk going full-on legal with accusations of defamation against that same "little guy" because he dared say something about it.

              RIAA going nuclear =/= Oatmeal voicing their opinion
              FunnyJunk going nuclear =/= the community voicing their opinion.

               

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                The Groove Tiger (profile), Jun 12th, 2012 @ 4:35pm

                Re: Re: Re: Re: Re: Re: Funnyjunk isn't entirely wrong

                "Then you are equating community "jumping on" (threatening with defamation)"

                should read

                "Then you are equating community "jumping on" (NOT threatening with defamation)"

                 

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          slander (profile), Jun 13th, 2012 @ 3:52am

          Re: Re: Re: Funnyjunk isn't entirely wrong

          Er, why are you bringing me into this?

           

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      Anonymous Coward, Jun 12th, 2012 @ 2:04pm

      Re: Funnyjunk isn't entirely wrong

      Funnyjunk IS DMCA protected and DOES remove content after complaints.

      Funnyjunk has NOT registered an agent with the DMCA, so, no they are NOT "DMCA protected".
      http://www.plagiarismtoday.com/2012/06/12/the-funnyjunkoatmeal-debacle/

       

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      Karl (profile), Jun 12th, 2012 @ 2:44pm

      Re: Funnyjunk isn't entirely wrong

      So in that sense, the Oatmeal did commit defamation.

      Um, no. What the Oatmeal said may not have been entirely, 100% accurate (it doesn't "find" images but lets users post them). And, Funnyjunk may be lawful.

      But that doesn't mean The Oatmeal rose to the level of defamation. For example, The Oatmeal never claimed that what they were doing was "willful criminal infringement." (In fact, it wouldn't be, even if that's what they did.) And, other than the word "find," what The Oatmeal said was accurate (though obviously snarky).

      If anything, Funnyjunk claiming that The Oatmeal wanted to "sue" and "shut down" their site is more defamatory than anything The Oatmeal said, since it was completely false.

      Of course, that doesn't rise to the level of defamation either. But, if the lawsuit actually goes forward (which I'm sure it won't), Funnyjunk would absolutely lose, big time, for all of the other idiotic things they claimed.

      This whole thing just proves Mike's point. In fact, it's likely that neither side is legally guilty of anything, and even attempting to duke it out it in court would be a complete waste of the court's time, and both parties' money.

       

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      Jordan Hudgens, Jun 12th, 2012 @ 4:32pm

      Re: Funnyjunk isn't entirely wrong

      It's not defamation to simply state his opinion regarding FunnyJunk's business practices (unless they both operated in the UK).

       

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      Anonymous Coward, Jun 13th, 2012 @ 9:06am

      Re: Funnyjunk isn't entirely wrong

      Funnyjunk didn't remove all the content. It left most of it on there. Gain some reading comprehension skills, dolt.

       

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      Bob from IT, Jun 19th, 2012 @ 6:12am

      Re: Funnyjunk isn't entirely wrong

      Actually, from what I have seen and as noted in Inman's Layer's letter responding to FunnyJunk's demands letter, FunnyJunk is not protected by the DMCA since they do not appear to have a registered agent as would be shown by a quick search of the Copyright Office's list of Registered Agents.

       

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    STStone, Jun 12th, 2012 @ 1:51pm

    A good ol' fashioned public shaming beats legal threats/lawsuits any day of the week.

     

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    Anonymous Coward, Jun 12th, 2012 @ 1:52pm

    Oatmeal comics make me laugh and the author seems like a pretty nice guy.

    Hope this goes well for him and ends quickly.

     

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    art guerrilla (profile), Jun 12th, 2012 @ 1:53pm

    and *that* sums up one of the main problems with society...

    ...anything that isn't deemed 'illegal', is 'okay'...
    um, well, no its NOT: using 'illegality' as a measure of morality is such a low bar as to be meaningless in everyday social interactions...
    in general, i don't GIVE A SHIT what the 'laws' say (which is only what our superiors with money are able to enact), MY MORALS are INFINITELY more restrictive than stupid, shitty 'laws'...
    i don't do stupid, unethical stuff to people *because* it is not 'legal'; i don't do stupid, unethical stuff to people because my momma taught me IT AIN'T RIGHT, REGARDLESS of what 'The Law' says ! ! !
    art guerrilla
    aka ann archy
    eof

     

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    Brent (profile), Jun 12th, 2012 @ 1:56pm

    the ability to raise $20,000 in 64 minutes for a good cause makes me want to click the "Like" button for humanity. Go us! (no aliens)

     

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    DandonTRJ (profile), Jun 12th, 2012 @ 1:57pm

    Funnyjunk's legal claims are almost entirely without merit, IMO. The false advertising claim is bullshit -- clear nominative use of the trademark. Inman probably has qualified immunity as to the defamation claim (criticism on a matter of public importance - copyright infringement on a high profile website) that he only loses with a showing of actual malice or known falsity. There might even be an anti-SLAPP counterclaim in there, depending on the jurisdiction. At any rate, I think we can all agree Funnyjunk is a scummy site, even if they operate entirely within the DMCA, and I hope they get what's coming to them from a purely business end.

     

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      Anonymous Coward, Jun 12th, 2012 @ 2:39pm

      Re:

      I posted a much longer content below detailing my opinion on this matter, but I'll just say a few things here.

      I agree FunnyJunk is over-reacting and some of their accusations are exaggerations.

      However, what I think is going on, is that websites like FunnyJunk, who host content uploaded by users, are constantly bullied and threatened by copyright holders. Some have already been shut down, had their domains seized, etc.
      It's clear that Oatmeal can't or won't give FunnyJunk much legal trouble, but I think FunnyJunk is just being very sensitive about these kinds of accusations, because they don't want to be the justice system's next Pirate Pay or Megaupload.

      I'm siding with FunnyJunk personally, at least on the slander/defamation accusations. Like you say they might not hold, but I don't think they are overkill or without merit personally.
      I hate FunnyJunk, I don't hide it, but I side with them because this does not concern just them. All websites who host content uploaded by users are in the same boat, constantly fighting off false accusations of piracy and struggling against legal attacks just to stay online.

      If FunnyJunk could sue and win, it would set a nice precedent to make the MPAA/RIAA shut up instead of throwing piracy accusations all around.

       

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        nasch (profile), Jun 12th, 2012 @ 3:56pm

        Re: Re:

        If FunnyJunk could sue and win, it would set a nice precedent to make the MPAA/RIAA shut up instead of throwing piracy accusations all around.

        That is sad. The solution to problems like this is more speech and better speech, not censorship and chilling effects.

         

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        Anonymous Coward, Jun 12th, 2012 @ 4:12pm

        Re: Re:

        meh a few differences. One stuff uploaded to funnyjunk purposely has attribution ripped off, e.g. the oatmeal.com line at the bottom of his pictures. By users or the site idk or care. But no "piracy site" has ever tried to claim they made Avatar.

        They have not registered their dmca agent.

        When Inman wrote about them instead of asking their users to look for and remove his content they lied and said he threatened them and asked users to spam him.

        They try to sue him despite knowing they have hundreds of his comics on their site. They removed the thousands of links he lists and claim they never existed and then quickly remove the hundreds of links he provides in his response letter. You could try to say they were just doing what he asked but they are only doing it to further their legal bullshit, he provided the owner with a list of all his comics and their locations back when all this started, he could have easily just removed them then.

        Also it started with an author complaining they had all his content. Not a trade organization suing FJ without even reaching out to them first.

         

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        DandonTRJ (profile), Jun 12th, 2012 @ 7:06pm

        Re: Re:

        Problem: What, exactly, is Funnyjunk "fighting off" with The Oatmeal? He specifically said he had no interest in going to court, and he's not the kind of entrenched player with lobbying clout to put ICE on the job. All he did was slam their business model using colorful language. He never accused them of a crime; at best, he accused them of acquiescence to their users' activities and dragging their feet on addressing the rampant infringement on the site. There's absolutely nothing wrong with pointing that out, even if it's not illegal.

        There's a Grand Canyon's worth of difference at being "very sensitive" about accusations (from a layman who had no interest in suing, mind you -- not the government or anyone in a position to "seize" their domain) and threatening suit to stifle someone's freedom of speech. So, no. Funnyjunk ain't in the right here, and your last statement is absolutely horrifying from a personal liberty and freedom of speech standpoint. I suggest you rethink your position very carefully.

         

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    Anonymous Coward, Jun 12th, 2012 @ 2:05pm

    Carrion is the carcass of a dead animal.
    The lawyer's name is Charles Carreon


    Are Funnyjunk carrion feeders or Carreon Feeders?
    Is either desirable?

     

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    Anonymous Coward, Jun 12th, 2012 @ 2:27pm

    First, I want to say that I really dislike FunnyJunk. I'm familiar with the website, I went there on a regular basis a while ago, but I've grown to hate it. I'm surprized myself that I find myself defending it.

    Now here's my take on this, because I think everybody is missing the point:

    Content hosts like Megaupload have been shut down and it started with simple complaints of "they're stealing my stuff and not doing enough to prevent users from uploading it to their website". Veoh, Limewire... Techdirt mentions all the time how the MPAA and RIAA are accusing Youtube of not doing enough to control what users upload.
    That's the age old tactic against websites that host user-uploaded content: blame them for not doing enough, say that unless they monitor every single upload they are helping piracy, etc.
    Then these websites get shutdown, or we get laws like SOPA.

    So maybe FunnyJunk is simply very sensitive about The Oatmeal's accusations, and fears this might only be the first step in something bigger, where more powerful parties might get involved, and which may result in FunnyJunk's death.
    In their position (i.e. operating a kind of website that is legal, should be legal, but frequently dies at the hand of copyright bullies) I would be very sensitive too about the kind of accusations the Oatmeal is making. And if I were operating such a website, I would counter-attack 10 times harder if anyone came at me in any way.
    I think FunnyJunk has no choice: they need to send a message that going after them will not go unpunished, otherwise more parties will try coming at them. They need to intimidate. I think this might be what they're doing, and it's what I would do in their situation.
    Blame the copyright industry and corrupt Justice for creating this situation where content hosts need to be paranoid and watch their backs constantly and feel the need to quash any threat with a 10-ton hammer.

    I've read The Oatmeal's response to FunnyJunk's legal threat. Frankly, I think FunnyJunk has some grounds - it did appear to me that part of what The Oatmeal wrote was slander.
    For instance, as I understood it, The Oatmeal ONCE contacted FunnyJunk to have some of their content removed. The process was, according to the Oatmeal, a bit complicated and The Oatmeal decided not to bother again. Now here's the kicker: from what I understand, the Oatmeal did not submit a proper DMCA notice. Here are some quotes that indicate so:

    "To the admin of FunnyJunk: I put together a list of all my comics which you can download here and use to remove the remainder of the stolen material. "

    That's not how it works. Admins are not required to go out of their way to identify infringing content. If you want content taken off, send a DMCA notice with links to the proper content. ALL the content. Don't expect website admins to search the web for lists of content and then to download those lists from third-parties.

    "Remember FunnyJunk? Almost exactly a year ago I published a blog post about my comics being stolen, re-hosted, and monetized on FunnyJunk's website. The owner of the site responded and some of the comics were taken down,"

    Right, so according to this quote FunnyJunk was apparently not send a proper DMCA notice. Instead The Oatmeal wrote a post on their own website, and yet FunnyJunk still did the right thing and removed the content.

    "I first contacted them about a year ago after I found a handful of my comics uploaded on their site with no credit or link back to me. They took down the offending images, but since then they've practically stolen my entire website and mirrored it on FunnyJunk: "

    There we are: the part where FunnyJunk was contacted by the Oatmeal. Except this still doesn't sound like a proper DMCA letter was sent. So FunnyJunk was under no obligation to remove anything and on top of that, if they removed stuff based on unofficial requests, they might end up removing stuff on the request of somebody impersonating the copyright holder.
    A DMCA notice is at least official and benefits all parties: if the person filing the DMCA is the copyright owner, the DMCA letter gives him some protections and recourse should the letter be ignored by the recipient. At the same time, filing a false DMCA notice is pretty bad and thus protects the recipient against false copyright claims.

    The Oatmeal, as far as I can tell, has never issued a proper DMCA take-down request. In fact here's the proof for that:

    "Should I send them a cease and desist?"

    Yeah, he wouldn't ask if he had already done it.


    Here's what it comes down to:
    The Oatmeal asked FunnyJunk to take down content but did not send a proper DMCA take-down request. The Oatmeal apparently also did not tell FunnyJunk which specific images had to be removed - instead, it seems The Oatmeal expected FunnyJunk to find all of the links to Oatmeal content.
    Despite this, FunnyJunk, by The Oatmeal's own admission, removed some content.

    But that was not enough for the Oatmeal, which then published this:
    http://theoatmeal.com/blog/funnyjunk

    Including this little paragraph at the top of the article:

    "Here's how FunnyJunk.com's business operates:

    Gather funny pictures from around the internet
    Host them on FunnyJunk.com
    Slather them in advertising
    If someone claims copyright infringement, throw your hands up in the air and exclaim "It was our users who uploaded your photos! We had nothing to do with it! We're innocent!"
    Cash six figure advertising checks from other artist's stolen material"

    And this is not presented as opinion but as fact. And if it is untrue, then it's slander.

    Let me summarize what seems to have happened:
    1) Oatmeal asks FunnyJunk "remove our stuff" but fails to provide links or even file a real DMCA notice.
    2) FunnyJunk does their best to comply (despite not being legally obligated to comply - so that's score +1 for FunnyJunk).
    3) Oatmeal is not satisfied, wants them to magically find all infringing material and identify future material before it is uploaded; slanders FunnyJunk out of spite.

    To me this seems like a simple case of a copyright holder not understanding the DMCA, not understanding that the law gives content hosts some protections, and then doing something stupid (in this instance, accusing a legitimate website of committing copyright infringement).

    Like I read elsewhere, if this was Youtube vs. the RIAA everyone would be saying "The RIAA needs to file the official paperwork and realize that Youtube can't screen every single video". But I guess this being The Oatmeal and the author being a "little guy" instead of a big corporation, all sympathy goes to him.

    As far as I know, the Oatmeal got what they deserve - they messed with a type of website that already has a lot of trouble with false accusations of piracy. They did slander FunnyJunk, and now FunnyJunk is fighting back.
    Is FunnyJunk exaggerating? Yes. But it's understandable. And it doesn't change the fact that The Oatmeal messed up first.
    The Oatmeal is the bully. They made to FunnyJunk the same unreasonable requests that the RIAA/MPAA make to Youtube all the time. And when FunnyJunk couldn't give them satisfaction, they resorted to slander.

    I also want to point out that a DMCA take-down notice is a form of legal threat: when filing such a notice, it is implied that a lawsuit will follow should the DMCA notice be ignored. And the Oatmeal did post an article in which it was considering this option. FunnyJunk over-reacted but was not way off when they said the Oatmeal wanted to sue them.

     

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    •  
      identicon
      Rich, Jun 12th, 2012 @ 2:33pm

      Re:

      Well someone has a lot of time on their hands.

       

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      •  
        identicon
        Anonymous Coward, Jun 12th, 2012 @ 2:57pm

        Re: Re:

        I know, reading is such an effort these days. I probably should have just written "lol go funjnk otmeel suck lol!!!" and spare myself the "tl;dr" comments that will likely follow.

        What can I say, I like to be clear, concise and accurate.
        I could have just given my opinion - basically that FunnyJunk was being bullied by Oatmeal, but how would that be informative to anyone if I didn't provide the evidence and facts I base this on?

        I took the time to write this, I can only hope those who feel like commenting on it will take the time to read it.

         

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        •  
          icon
          iamtheky (profile), Jun 12th, 2012 @ 3:16pm

          Re: Re: Re:

          What can I say, I like to be clear, concise and accurate.

          ...and bloviate all over the comments. You could at least sign your mess like RJR so we could berate you by name.

           

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          •  
            identicon
            Anonymous Coward, Jun 12th, 2012 @ 3:21pm

            Re: Re: Re: Re:

            Go to Youtube if you don't like reading.

             

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            •  
              icon
              bratwurzt (profile), Jun 13th, 2012 @ 5:58am

              Re: Re: Re: Re: Re:

              Go somewhere else if you think soft trolling works here. We can read here and we can also separate shit from gold.

              I don't like funnyjunk, BUT...

              How is that relevant - what you like? Or are you trying to "FOX balance" your reply?

              And this is not presented as opinion but as fact. And if it is untrue, then it's slander.

              Really? Why is that - I read it as a joke. A funny comic. Opinion, mixed with awesomeness. And here you are - stating an opinion of artists intentions as a fact. Irony much?

              FunnyJunk does their best to comply

              Really? Admin posted lies to their forums after Oatmeal first post. Backlash from funnyjunk users. Oatmeal posts links into a reply. FunnyJunk removes them (and just that) and them replies that it(infrigment) is not true - these links are dead!

              You're putting a lot of lipstick onto a very ugly pig. (or phrase "their best" is meant to be sarcastic)


              If Oatmeal is the bully here, it's bullying a crackdealer across the street from school.

               

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        •  
          icon
          nasch (profile), Jun 12th, 2012 @ 3:58pm

          Re: Re: Re:

          What can I say, I like to be clear, concise and accurate.

          Well, two out of three's not bad.

           

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      •  
        identicon
        Anonymous Coward, Jun 12th, 2012 @ 4:47pm

        Re: Re:

        But he's right.

         

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    •  
      identicon
      Anonymous Coward, Jun 12th, 2012 @ 2:45pm

      Re:

      Since FunnyJunk has not filed with the copyright office (which is required to retain DMCA immunity)...
      http://www.copyright.gov/onlinesp/list/f_agents.html
      ...they can't claim they're obeying the law!

       

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      •  
        identicon
        Anonymous Coward, Jun 12th, 2012 @ 3:39pm

        Re: Re:

        You make a good point, I wasn't aware you had to register to be covered.
        I'm reconsidering my position now, FunnyJunk should probably have registered to begin with. I'm curious to know why they didn't.

        Another thing I'd like to know: in what sense are you outside of the law if you don't register with the copyright office, exactly? Does that mean your website is automatically illegal and should be taken down? Does it mean you just lose all protections against copyright claims (i.e. no fair use defense, etc.)?

         

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        •  
          icon
          Karl (profile), Jun 12th, 2012 @ 4:33pm

          Re: Re: Re:

          in what sense are you outside of the law if you don't register with the copyright office, exactly? Does that mean your website is automatically illegal and should be taken down? Does it mean you just lose all protections against copyright claims (i.e. no fair use defense, etc.)?

          It means that you do not have automatic immunity from copyright infringement charges. It does not mean that you are guilty of infringement.

          You can still raise any and all other defenses to copyright infringement (fair use, etc). In fact, if the only thing you did was not register a DMCA agent, but followed the law in every other way, the judge will probably find you innocent anyway. (See the Rapidshare case.) I don't know why anyone would risk it, however, especially if they're a U.S. company.

           

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    •  
      identicon
      akp, Jun 12th, 2012 @ 2:53pm

      Re:

      This is exactly what I've been trying to point out as well.

      I like The Oatmeal, dislike FunnyJunk, and I think your analysis is spot on.

       

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    •  
      identicon
      Noah Callaway, Jun 12th, 2012 @ 3:22pm

      Re:

      I disagree in your assertion that The Oatmeal is the bully.

      In this case The Oatmeal did nothing other than publicly explain how he felt, and ask his readership for advice on his course of action. A year later, a lawyer shows up asking for 20 grand?

      Even if I _disagree_ with The Oatmeal's position (in that I believe it would be an unreasonable burden on FunnyJunk to pre-emptively take down all of The Oatmeal's content without notice as to which specific items are infringing), I strongly believe that The Oatmeal is allowed to publicly _express_ his position in the goings on.

      The alternative is to use the "bully smell test". Whoever starts the legal threats - probably the bully!

       

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      •  
        identicon
        Anonymous Coward, Jun 12th, 2012 @ 3:33pm

        Re: Re:

        I probably don't need to point out what a ridiculous test that is, I don't assume you were seriously arguing it as a valid test anyway.

        I quoted a paragraph in my original comment, which you can find at the top of this page:
        http://theoatmeal.com/blog/funnyjunk

        This 6-point list is where I see an actual claim of fact and not an opinion. It doesn't say anywhere "This is what I think". It's a statement: "This is how FunnyJunk operates" (slightly paraphrased). No opinion there as far as I can tell.

        I'm open to the possibility that I'm missing something here and this should actually be considered an opinion, but so far I don't see it.

         

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        •  
          identicon
          Anonymous Coward, Jun 12th, 2012 @ 4:20pm

          Re: Re: Re:

          "I'm open to the possibility that I'm missing something here and this should actually be considered an opinion, but so far I don't see it."

          If you go to a blog that is used by the author to express humor and opinion what you read their will be humorous and based on opinion.

          Any other interpretation would be on-par with suing the Onion for false news reports or slander/def.

          If he said that in a NY times editorial it would be one thing saying it on a humor blog is entirely different. Context is everything, its his opinion of what is going on not a supposedly fact checked journalistic news piece.

           

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    •  
      icon
      LDoBe (profile), Jun 12th, 2012 @ 3:47pm

      Re:

      I also want to point out that a DMCA take-down notice is a form of legal threat: when filing such a notice, it is implied that a lawsuit will follow should the DMCA notice be ignored. And the Oatmeal did post an article in which it was considering this option. FunnyJunk over-reacted but was not way off when they said the Oatmeal wanted to sue them.

      This is an intellectually dishonest statement. By your own admission, a DMCA req. means that the Oatmeal (TOA) wants to sue FunnyJunk (FJ). But TOA didn't send one, and asked his community if it would be a good idea. Therefore, claiming that TOA wanted to sue FJ is incorrect, and possibly libel or slander in itself, since all you can glean from that particular quote is that he considered suing, not the he wanted to sue.
      In addition, you're misrepresenting TOA, since he claims he doesn't want to get into a legal battle in the first place.
      I don't want to get tied up in courtroom nonsense.--Matt Inman

      And a few days later in his rebuttal in response to FJ's alarmist overreaction to Matt's request to have the uncredited comics taken down:
      To the users of FunnyJunk: I never had plans to sue FunnyJunk and get it shut down; I just wanted my stolen comics removed

      You sir, are the one who might be guilty of slander.

      But I do agree that it's messy not going through the proper legal channels. I don't think bullying has anything to do with it though.

       

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    •  
      identicon
      PT, Jun 12th, 2012 @ 5:19pm

      Re:

      AC, Andrew Orlowski over at The Register wants to buy you a drink.

       

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    •  
      icon
      Jeremy Lyman (profile), Jun 13th, 2012 @ 6:07am

      Re:

      I would be a lot less pissed off with the RIAA if their response to Youtube was to publicly state "Hey, it kinda sucks that our stuff is on this other site. But we're not going to sweat it and just keep making music you want."

       

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    •  
      icon
      Daniel (profile), Jun 13th, 2012 @ 8:50am

      Why?

      Is it getting to the stage where someone with a good talent, makes a living of selling his cartoons online, has to be an expert in law?

      You're expecting Inmam to follow DMCA processes, when it's clear the opposing party doesn't.

      I completely understand his side of the argument, FJ are using his content, and making money off it, it's as simple as that, he shouldn't have to be an expert in law, FJ hosts a *lot* of content, none of it is original (theirs) it's all user submitted, so they should be making it *very* easy to get stuff removed.

       

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      •  
        identicon
        hobo, Jun 13th, 2012 @ 10:33am

        Re: Why?

        Point taken, but you should probably be up to speed on the law surrounding your chosen field if you are a small business owner.

        If I decide to sell a kit car or open a restaurant it would behoove me to know auto or food prep regulations, respectively.

         

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        •  
          identicon
          Anonymous Coward, Jun 14th, 2012 @ 7:57pm

          Re: Re: Why?

          Not certain I follow your reasoning or response, here. You do know that one does not have to file a DMCA request before going to a lawsuit, right?

           

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          •  
            identicon
            hobo, Jun 15th, 2012 @ 8:11am

            Re: Re: Re: Why?

            My response to Daniel is in regards to his statement that: "Is it getting to the stage where someone with a good talent, makes a living of selling his cartoons online, has to be an expert in law?"

            "Expert" may be going a bit too far but my point was that it would indeed be quite useful to understand the laws and regs surrounding your profession if you are a sole-proprietor.

            I was not responding to anything regarding a DCMA notice.

             

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    •  
      identicon
      Anonymous Coward, Jun 13th, 2012 @ 9:09am

      Re:

      "Frankly, I think FunnyJunk has some grounds - it did appear to me that part of what The Oatmeal wrote was slander." It's libel, not slander. Now shut up and go to school.

       

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    •  
      identicon
      Victor, Jun 13th, 2012 @ 12:22pm

      Re:

      I also want to point out that what FunnyJunk is threatening to sue about is a year old post. After that has the Oatmeal continued to pressure them with these unofficial requests? Nope. Fast forward to this year, it just seems like greed pure and simple since instead of asking the Oatmeal to just remove the age old post, they also officially demand $20,000.

      Somehow they applied the same ficitious formula of the MPAA and RIAA to justify some lost revenue over a period of months from having that post sitting there.

      Oh and let's not forget that the Admin in FunnyJunk posted a message to all the site users saying that they were threatened to be sued and to contact the Oatmeal to complain. What has the Oatmeal done to directly incite a mob? NOTHING. Just a rebuttal post in defense of that lie and with this latest sign of litigation bullying from FunnyJunk he sets up a charity fundraiser.

       

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  •  
    identicon
    jacques of france, Jun 12th, 2012 @ 4:01pm

    Let me sum it up. Techdirt always insisted on the facts that:
    A- Copyright infringement is not theft
    B- User-generated content services can't be liable for non-induced infrigement by their users
    Which is entirely true IMO

    But then, that comic strips artist writes a (totally serious) blog post in which he says FJ "have practically stolen [his] entire website and mirrored it" Read this and tell me it's "obviously humorous": http://theoatmeal.com/blog/funnyjunk

    Calling someone a thief when he's not IS defamation. When the MAFIAA calls a website a thief it does no direct harm (as long as there are no lawsuits) because the audience doesn't care about them. But when a person with influence on the web audience say "these guys are robbing me!", this is serious trouble. Defamation+Harm=Lawsuit.

    If Justin Beiber (or some other mainstream celeb) had said, talking about youtube "they steal my content", because of users uploading videos exclusive to his website(I guess he have that), Techdirt would have ridiculed him and rightly so!

    Even though funnyjunk admin overreacted (you're never pleased being called a thief), it seems like you're having double standards. Beware of any loss of credibility, Techdirt, you need it to spread some important messages.

     

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    •  
      identicon
      Anonymous Coward, Jun 12th, 2012 @ 4:51pm

      Re:

      "Read this and tell me it's "obviously humorous": http://theoatmeal.com/blog/funnyjunk"

      Just reading the link, especially theoatmeal.com part, tells me it is obviously humorous since that is the sole purpose of theoatmeal.com

      Its like complaining The Onion doesn't end all its articles with /sarc.

       

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    •  
      icon
      G Thompson (profile), Jun 13th, 2012 @ 6:44am

      Re:

      Calling someone a thief when he's not IS defamation.

      Wrong.. you need to actually look up both the elements of defamatory actions and then the defences before you spout off about things you know not.

      Otherwise It will lead myself and others to reach the conclusion that you are a blithering fool, and believe me that that too is not defamatory.

       

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  •  
    identicon
    Anonymous Coward, Jun 12th, 2012 @ 4:23pm

    "Now here's the kicker: from what I understand, the Oatmeal did not submit a proper DMCA notice. Here are some quotes that indicate so:

    "To the admin of FunnyJunk: I put together a list of all my comics which you can download here and use to remove the remainder of the stolen material. "

    That's not how it works."

    What you have quoted is Inman's response to FJ's response to Inman's original article. So it is not how his first attempt to remove content from FJ went, or indicative of whatever happened when he did have that first batch of content removed. He just left that there for FJ to do what they pleased with and washed his hands and walked away from the whole incident.

     

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    •  
      identicon
      Anonymous Coward, Jun 12th, 2012 @ 6:22pm

      Re:

      Yeah it ain't an official DMCA but FunnyJunk didn't have a stated person to submit a DMCA to.

      So he was annoyed with the system and vented on his blog about the situation and did nothing else. A year later FunnyJunk's lawyer wakes the sleeping giant who probably has a better case against FunkyJunk than they have against him. He still avoids going to court, ridicules FunkyJunk, it's lawyer and makes over a hundred grand for charity doing it. Full points for style there.

       

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  •  
    identicon
    Anonymous Coward, Jun 12th, 2012 @ 4:56pm

    Surely it is a simple situation

    Either
    Funnyjunk has a search engine and is therefore a nasty pirate
    or
    Funnyjunk does not have a search engine and is therefore a nasty pirate

     

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  •  
    icon
    Andrew (profile), Jun 12th, 2012 @ 5:39pm

    Oooh! It gets better!

    [Carreon] 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.

    That's going to go down well...

     

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    •  
      icon
      Andrew (profile), Jun 12th, 2012 @ 7:03pm

      Re:

      Comment from Ken at Popehat, who sides with The Oatmeal on this and includes the following quotes from Marc Randazza:

      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 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.

       

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      •  
        icon
        That Anonymous Coward (profile), Jun 12th, 2012 @ 7:39pm

        Re: Re:

        People will know there is no love lost between myself and Randazza, but I think he pretty much sums this up perfectly.

        In other news it appears that Funnyjunk took the list Oatmeal has put in their reply and got around to removing them.

         

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    •  
      icon
      vegetaman (profile), Jun 12th, 2012 @ 7:23pm

      Re:

      Is he... Like... Intentionally trying to boost public goodwill for The Oatmeal?

      BIZZARRO! BIZZARRO!

       

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    •  
      identicon
      Colin, Jun 12th, 2012 @ 7:29pm

      Re:

      I thought this was the best part:

      He ended the conversation with a promise to keep me updated on how things are resolved and on whether he takes any legal action against the folks who have been harassing him since Inman's "BearLove Good Cancer Bad" fundraising campaign started.

      Yaaaay more legal action!

      I also enjoyed:

      "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.

      "Sure, a year ago we told people to contact him, and even gave out contact links on how they could do so. But the absurdity of his supporters doing that to us?!"

       

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  •  
    icon
    Stig Rudeholm (profile), Jun 13th, 2012 @ 8:44am

    Copying is not theft

    I absolutely love The Oatmeal, but I have to say that I'm not a fan of Inman talking about "content theft" as that concept is quite ridiculous in this context. Copying is not theft. As far as I know, when someone posts a The Oatmeal comic on another site, that comic does not magically disappear from theoatmeal.com.

    Attribution is quite another matter though, and personally, I think it is much more important than copyright.

    If I were in Inman's shoes, this is what I would have done:

    * I would relax about my content being monetized by someone else in this way. A dollar earned by someone else on advertising on another site does not equal a dollar lost by me.
    * I would sometimes upload material to FJ myself. If FJ gets millions of visitors, I'd try to convert some of them to fans.
    * I would ask my fans to give proper attribution, and linking, when sharing my stuff on other sites.

    I'm not saying that the FJ people have done nothing wrong here, but Inman has certainly also crossed some lines himself.

     

    reply to this | link to this | view in chronology ]


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