Another day, another story about Charles Carreon digging himself a deeper and deeper hole. This time, it starts with him threatening to sue both the person who set up the parody site charles-carreon.comand Register.com, where the domain was registered. Register.com failed to live up to its own "privacy" promises regarding registration info, and exposed the name and personal info of the person who registered the site after receiving a letter from Carreon, despite direct promises to the person's lawyer. After another phone call in which the lawyer, Paul Levy, warned Register.com that it faced breach of contract charges, it made the info private again.
However, Carreon continued to threaten the blogger, leading to a rather bizarre exchange between Carreon and Levy, which relates to some history that Carreon has had with Levy's organization, Public Citizen, and a case we wrote about last year, involving a website run by Carreon and his wife. In the end, the owner of charles-carreon.com felt sufficiently threatened by Carreon's claims that s/he has decided to file for declaratory judgment to stop Carreon from suing. Part of the reason for seeking declaratory judgment was Carreon's direct threat to go after the blogger at a later date in various jurisdictions. He also threatened to use the DMCA takedown process to try to censor the site, because it uses a photo he claims copyright over. There's significant irony in the fact that Carreon is now threatening to abuse the DMCA process to stifle speech -- when what kicked this whole thing off was his DMCA-based defense of Funnyjunk and its failure to remove copyright-covered images.
Carreon's threat-letter response to Levy is something to behold, and can be viewed towards the bottom of the filing (pdf and embedded below). Here's a key part:
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:
There there is essentially no statute of limitations on this claim, and the prima facie laches defense would not kick in for at least three years.
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.
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 sake of convenience and the need for speed, and not from a lack of resources.
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.
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.
That a judgment can be renewed indefinitely until collected, and that California judgments accrue 10% interest, which can compound once ever ten years by capitalizing the accumulated interest.
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.
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).
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.
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.
He goes on to chide Levy and Public Citizen for "leaping to the defense of someone who is in league with a person who has harnessed the lowest impulses of puerile, vituperative Internet youth to generate a Charitable Fund that has been used to bribe two major charities into tacitly endorsing a campaign that is utterly devoid of charitable purpose, and is a mere cover for a hate campaign."
Uh, yeah. At best, this demonstrates that Carreon still has no clue about what's happening. He still thinks that there's some big campaign against him, and he's still lashing out without realizing that every time he does so he just draws more negative attention to himself. Most people tend to learn that when doing something makes the situation worse, they shouldn't keep doing it. Carreon seems unable to make that basic connection. The rather blatant threats against the blog owner -- to go after her in multiples jurisdictions and at a later date when Public Citizen might not be able to take her case -- are examples of the exact wrong way to handle something like this. It's an old-fashioned lawyer attitude: take an extreme position that you can back down from later. But in this case, it just seems to display -- quite vividly for the judge -- Carreon's true intentions: to be such a nuisance that people stop mocking him. One of these days, he may discover that each time he does that, he's only encouraging more and more ridicule.
Oh, and in the meantime, as for his attempt at getting a temporary restraining order to stop the money raised from being distributed, the judge has asked for proof that the charities have received the money -- as has been stated by IndieGoGo and Matthew Inman. If that is shown to be true, it seems likely that the judge will find no reason to consider the TRO request any more, since it's meaningless.
Another day, and still, Charles Carreon keeps digging. In case you just woke up from a coma, here are all the earlier posts on Carreon. The latest is both a bizarre semi-backtrack, as well as another case of him feverishly continuing to dig that Carreon Effect hole deeper and deeper.
The "backtrack" comes to us via Popehat, pointing us to an interview with Carreon in which he admits that the letter he sent to kick off this whole mess... was a mistake. Yes. You read that right:
Ironically, the threat of the first lawsuit [Funnyjunk suing Inman] 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.
You would think that, upon realizing this -- that the entire premise of his letter which kicked off this entire thing was wrong -- he would think better off pursuing a separate strategy in response to the backlash for what he now admits was in error. But, no. Also, as Ken at Popehat points out, saying these things could be construed as "revealing a confidential attorney-client communication between himself and FunnyJunk in order to make himself look less ridiculous."
And then he continues to dig, dig, dig, dig dig.
You see, in another interview (dude gets around), this time with Ars Technica, Carreon
trots out his latest bizarre theory of liability for Matthew Inman. In the lawsuit, he claimed that he thought Inman might keep everything raised above the target goal of $20,000, even though Inman never made any suggestion that was true, and in fact, Inman had said quite clearly (way before Carreon's rampage and lawsuit) that he was going to donate 100% of everything raised to charity. But Carreon says it doesn't matter:
“It sounds like he stands to make $180,000,” Carreon said. “He’s the authorized agent of IndieGoGo. I know this shit is hard to put together. That’s why we hire lawyers, because we read the statute and we take the risk.” (“Inman's commitment after the fact is not evidence of his original intention," Carreon clarified later by e-mail).
It should be noted, of course, that it does not appear that Carreon has "hired a lawyer" since he filed the case pro se (representing himself). The whole "authorized agent of IndieGogo" thing seems to be an astoundingly weak attempt to twist what IndieGoGo does and what Inman did to fit it under the California law on commercial fundraisers.
But, here's where Carreon goes really far out on a limb. On the very same post where Inman tells everyone that 100% of the money is going to charity, he also points out that he is going to add some other charities to the list. Nearly everyone thinks this is a really good thing. More money going to more charities. Awesome. But, no, not to Carreon. Apparently this is evidence of a nasty "bait & switch"
“Inman's idea to add two more charities is another act that shows the risk of money being raised for one purpose to be diverted to another. For example, I raise money for an Israeli charity to pay for trips to the Holy Land, but then decide that half the money should go to Palestinian orphans, or more disturbingly, to Hezbollah, which also has a charity wing. It's one more reason why IndieGoGo should not contract with agents like Inman who do not know that ‘adding charities’ to a campaign is obviously ‘bait and switch’ false advertising.”
Yeah, because everyone is just so sure that Inman's now going to add two charities that involve speeding up cancer causing agents and killing off bears to counter his original two charities.
Now that the details have come out about Charles Carreon's lawsuit against Matthew Inman, IndieGoGo and the two charities Inman is raising money for (and the details are as nonsensical as we expected), Matthew Inman has written an open letter to Carreon, suggesting that he might want to calm down a bit. He points out that, contrary to Carreon's claims, he did not "incite security attacks" on Carreon. In fact, Inman not only focused his anger at Funnyjunk, but also went further than necessary to keep Carreon mostly out of it:
So when did this transform from Oatmeal VS FunnyJunk to Carreon VS the internet?
I'm going to take a wild shot in the dark here and guess that it's when you announced to a journalist at MSNBC that you were trying to shut down a charity fundraiser which would benefit cancer victims and endangered wildlife.
THAT was the moment when the tide of public opinion focused on you instead of FunnyJunk. I never encouraged anyone to attack, harass, or otherwise contact you.
In fact in my original letter I blurred out your contact information and I linked to your Wikipedia page instead of your website.
If I've directed energy anywhere it's been to the fundraiser page.
He also tells people not to harass Carreon. He goes on to point out, accurately, that this whole thing has probably been humiliating and points out that the lawsuit is quite likely going to get dismissed, but also offers Carreon a possible path to backing out of this mess:
Your lawsuit is meritless and it'll probably just get dismissed, but
I'm guessing you're just going to keep trying
until you find an angle that sticks with a judge.
My advice: take a few weeks off, stop saying crazy shit to journalists, and come back when you've calmed down.
Write an apology to whomever you feel is appropriate, or just don't write anything ever again.
Maybe start your own charity fundraiser as way of apology.
Also known as "the stop digging" solution. The same one half the internet has been suggesting for the past week. The same suggestion that Carreon keeps ignoring -- leading at least some people to start calling the impulse to keep digging the Carreon Effect. That moniker will likely disappear if he does, in fact, stop digging. But what are the odds of that happening?
Earlier this morning we wrote about Charles Carreon suing Matthew Inman, IndieGoGo, the National Wildlife Federation and the American Cancer Society. At that time, all anyone had was the summary of the lawsuit as written by Courthouse News Service. Now, Carreon has posted the filing to his own website (with portions redacted) and the full version is now available via PACER. I've attached the officially filed version below. Rather than reveal new theories that we had missed in our original analysis, it would appear that our initial thoughts were dead on. This case is just begging to be anti-SLAPPed out of existence, in which case Carreon may find himself on the hook for significant legal fees.
When I was writing about the original case, I went looking through California's regulations on charities, and couldn't find anything that would impact Inman or IndieGoGo and all I came across was this law from this page on the California Attorney's General website. But I couldn't see how that specifically applied to Inman or IndieGoGo, since it seemed to be focused (a) on charities themselves or (b) on professional fundraisers (i.e., people hired to fundraise on a charity's behalf). It did not seem to apply to people who just tried to raise money which they promised to donate to a charity. However, that is the law that Carreon is relying on. Carreon seems to try to twist the definition of a "commercial fundraiser" to make it apply to Inman and IndieGoGo, but it's a pretty massive stretch. Inman isn't doing this "for compensation," so the law doesn't seem to apply to him. IndieGoGo is just the platform, but isn't doing the soliciting or directly touching the funds. The law is designed for an entirely different purpose.
And even if, somehow, a court actually believes that this law applies here, you might wonder how it's possible that Carreon has any standing to sue whatsoever. The fundraiser has nothing to do with him (it was about Funnyjunk, but remember that Carreon is suing on his own behalf, not Funnyjunk's.). Carreon appears to just be suing because he's pissed off. Except, that Carreon thinks he found a loophole. He donated to the campaign himself in order to create standing:
Plaintiff is a contributor to the Bear Love campaign, and made his contribution with the intent to benefit the purposes of the NWF and the ACS. Plaintiff is acting on his own behalf and to protect the rights of all other contributors to the Bear Love campaign to have their reasonable expectation that 100% of the money they contributed would go to a charitable purpose. Plaintiff opposes the payment of any funds collected from the Bear Love campaign to Indiegogo, on the grounds that the contract between Indiegogo and Inman is an illegal contract that violates the Act, and its enforcement may be enjoined. Plaintiff opposes the payment of any funds to Inman because he is not a registered commercial fundraiser, because he failed to enter into a written contract with the Charitable Organization defendants, because the Bear Love campaign utilized false and deceptive statements and insinuations of bestiality on the part of Plaintiff and his client’s “mother,” all of which tends to bring the Charitable Defendants and the institution of public giving into disrepute.
Yeah. Once again, Carreon contributed to Inman's campaign for what appears to be the sole reason of using that as a way to get standing to sue. I'm somewhat stunned.
Also, how can he possibly blame the charities? Well, Carreon's lawsuit fails in that it never actually states a claim against the charities. Seriously. At one point in the explanation of the lawsuit, he does state the following, but never actually includes the charities in any of the actual claims:
Although the Charitable Organization defendants have notified by Plaintiff in writing about the fact that the “Bear Love” campaign alleged infra is being conducted by Inman and Indiegogo in violation of the Act, and that the campaign is being conducted in a manner that could cause public disparagement of the Charitable Organization defendants’s good name and good will, neither the ACS or the NWF have acted to disavow their association with the Bear Love campaign, thus lending their tacit approval to the use of their names to the Bear Love campaign.
Again, just for emphasis, I'll point out that even with this paragraph, Carreon fails to name either charity with any of the actual claims in the lawsuit. He does include them in part of the claim, by stating that they "have failed to perform their statutory duty to exercise authority over the Bear Love campaign," but still fails to directly assert the claim against them. Even if he somehow figured out a way to work them into one of the claims, this particular legal theory of not disavowing "their association" with Inman's campaign leading to "tacit approval" is pretty ridiculous as well, and not something I could see standing up in court.
Meanwhile, Carreon's theory that Inman "disparages the image of charitable fundraising" again seems to stretch all kinds of definitions and understanding of the internet. Basically, he relies on the fact that Inman likes to mock people he doesn't like. But that's entirely unrelated to the issues at hand. Furthermore, despite Inman and Inman's lawyer explaining (in great detail) to Carreon, earlier, that Inman has an ASCII pterodactyl on all pages of The Oatmeal's source code, Carreon spends an inordinate amount of space talking about how awful this is.
Inman has announced his vindictive response to his real and imagined enemies by posting, within the source code of all of the webpages on his main website, www.theoatmeal.com, the following image and text, depicting himself as a pterodactyl that will “ptero-you a new asshole.” A screencapture of the core of the source-code appears as follows:
Following the link to http://pterodactyl.me leads the Internet user to a page on TheOatmeal.com where a video created by Inman and Sarah Donner depicts Inman, in his character as a carnivorous, prehistoric flying reptile that first rips the intestines out of a man's anus, then flogs him with his entrails, then steals a pineapple from a boy, tears his head off, flings it a girl and knocks here head off, then grinds up the girl’s head up in a wood-chipper, blends it with the pineapple, and drinks the grisly cocktail
The filing then shows screenshots from the video in question, which we'll just embed here for your viewing pleasure:
Carreon tries to claim that these images actually incite Inman's followers into action:
Inman’s followers are by and large with technologically savvy young people eager to follow the
latest trend, who embrace Inman’s brutal ideology of “tearing you a new asshole.”
Seriously? Carreon is literally arguing that fans of a silly comic with cartoonishly ridiculous violence leads them to "embrace" this "brutal ideology?" Carreon really ought to spend more time online. Carreon repeatedly makes incredibly weak connections between Inman's cartoons, his online persona and the later hatred directed his way, but without any actual evidence.
Later in the lawsuit, Carreon again claims that Inman's statement that Funnyjunk "stole" images is "false and misleading." Whether or not that's true, it's irrelevant here. Funnyjunk is not a plaintiff in the lawsuit. He also goes off on Inman for "fighting
words, and incitements to commit cybervandalism, none of which are entitled to constitutional
protection." Neither of those make sense. It's nearly impossible to see how Inman's cartoons, as sophomoric as they might be, qualify under the standard legal definition of "fighting words" or any kind of incitement to violence. In fact, Inman has made no references inciting his audience to do anything other than give money to charities (which most people would consider a good thing).
Moving on... we've got the trademark and publicity rights claim. As expected, Carreon is asserting that various actions violate the trademark on his name and his publicity rights. The key is that someone set up a fake Twitter account in his name and tweeted various statements that might make Carreon look silly. Of course, reading some of the tweets, it seems rather obvious that the account is fake. For example, one of them talks about "backtracing" Inman's IP -- a rather obvious reference to the famous ya dun goofed internet meme. Also, as he had suggested in an interview on Friday, Carreon makes interesting leaps of logic in suggesting that Inman himself may have set up the fake account.
Then, finally, we have the "inciting and committing cybervandalism in the nature of trespass to chattels, false personation and identity theft." Here, he claims that the fact that his email address was made public was part of that incitement, claiming that he never made it public:
As noted above, Doe1 or Inman proliferated Plaintiff’s email address via a fake tweet made by “@Charles_Carreon.com.” Plaintiff had not posted the email@example.com email address anywhere on the Internet except where required by law and Internet regulations. (The email address appears on legal papers in PACER filings in cases where required by the rules of this and other U.S. District Courts; however, these filings are viewable only by PACER users. The email address was also used in the Whois registration database for various websites Plaintiff has registered for his benefit, and as by the authorized registrant/agent of various legal clients.) Inman or persons incited by Inman also proliferated the email address and Plaintiff’s home address on social networking websites, again for the malicious purpose of enabling cybervandalism.
Except... court filings are not only viewable to those with a PACER account. Filings with the court, if not under seal, are considered public documents and are often available from a variety of sources, including the Internet Archive and other places as well. Separately, if he didn't use an anonymizer, the whois info that includes his email address is public info. Furthermore, his address is available elsewhere online as well, including (um...) both the websites for the State Bar of California and the State Bar of Oregon. Oh, and the email address is also clearly stated in the version of the legal filing that Carreon posted to his own website. While he redacted his email address in the header, he did not within the text of the complaint. In other words, that address was widely available to the public already.
His second claim of cybervandalism was that someone tried to reset the password on his webhosting account:
On June 13, 2012, at 9:28 p.m., either Inman or one of the persons named as Does 1 – 100 engaged in the act of trespass to chattels, cracking the password on Plaintiff’s website at http://www.charlescarreon.com and requesting to reset the password. Fortunately, the intrusion discovered instantly by Plaintiff who was sitting looking at his computer screen when he received an email from the website software system, and was able to retain control of the website by immediately changing the password using the hyperlink in the email.
First of all, merely requesting a reset password is not "cracking the password." It's requesting a new password, which the user would not be able to act upon unless they had access to Carreon's email (and there is no indication that that happened). In fact, it appears that the password reset system worked as designed, in that Carreon was warned that someone wanted to reset the password. And, actually, the fact that Carreon admits to "using the hyperlink in the email" suggests that that could have been the real hack attempt. You should never change your password using a hyperlink sent to you in an email. You should always go directly to the site yourself and login and make the change. Normally, if you receive one of those reset emails and haven't tried to reset your password, you're supposed to ignore it so that the password doesn't get reset. Clicking on the link and changing a password that way makes one susceptible to phishing attacks.
Finally, Carreon notes that some idiots online have signed his email account up for various spam emails/newsletters. If true, that's pretty stupid on whoever signed him up for those kinds of things, and people really shouldn't do that. But claiming that's "cybervandalism" or anything that can or should be pinned on Inman (again, whose target was Funnyjunk, not Carreon) seems ridiculous in the extreme.
The situation with Charles Carreon just keeps on progressing. The latest is that, according to a report from Courthouse News Service, Carreon has now not only sued Matthew Inman, but also IndieGoGo and the National Wildlife Federation and the American Cancer Society. Read on for the details...
If you've been away from the internet for the past week, this story started as an online dispute between Matthew Inman, creator of the webcomic The Oatmeal, and a site called Funnyjunk, which lets users post content to the site. About a year ago, Inman wrote a blog post complaining about Funnyjunk's reposting of his webcomics. As we've noted a few times, Inman's statements about Funnyjunk were overly aggressive -- and did mention "stealing" of his own work. He seemed to ignore that it was users who uploaded the content. However, while we disagree with Inman's original characterization of Funnyjunk and how it operates, it certainly did not reach the level of "defamation." Also, we appreciate that Inman chose not to sue, but rather to make use of the court of public opinion. In response, Funnyjunk lashed out, incorrectly stated that The Oatmeal wanted to sue him (when Inman very clearly stated he had no intention to sue) and also asked a bunch of Funnyjunk users to contact Inman.
Everything seemed to die down, until about a week ago, when lawyer Charles Carreon, representing Funnyjunk, sent a letter to Inman, threatening to sue Inman for the initial blog post, claiming that it was defamation and a Lanham Act (trademark) violation for false advertising. Neither claim makes much sense, and Inman responded with both an excellent letter from (occasional Techdirt contributor) Venkat Balasubramani, and Inman's now famous annotated letter, leading to an IndieGoGo campaign to raise $20,000 (the amount Carreon/Funnyjunk demanded from Inman) for two charities: The National Wildlife Federation & the American Cancer Society.
Following that, Carreon told MSNBC he intended to shut down the fundraisers, and then bizarrely accused Inman of "instigating security attacks" against his website. Finally, on Friday he told Forbes that he wasn't backing down and that there had to be "something" in the California code that he could sue Inman over.
Apparently he's found something. As reported by both Ken at Popehat and Kevin at Lowering the Bar, Courthouse News has a notice saying that Carreon has filed a lawsuit in the federal district of Northern California. And, as mentioned above, he doesn't just sue Inman, but also IndieGoGo and the two charities. Yes, the two charities. I'll repeat that again: Charles Carreon appears to be suing two of the most well known charities because Matthew Inman asked people to donate to them. Ken's summary -- based on what limited info is available via Courthouse News:
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"....
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."
As Ken notes, the summary from CNS may be flawed. In fact, it clearly is, because it says "Inman's computer" was hacked, and I'm sure the complaint means Carreon's. So take it with a grain of salt until the actual filings appear on PACER or Carreon shares them with others. However, there would appear to be a bunch of problems with the filing if the other parts are accurate. Let's start with the big one: Carreon is filing for himself, representing himself. According to the report above, it does not appear that he is doing this representing Funnyjunk. That raises significant questions about what standing Carreon has alone, unless he's arguing that Carreon is Funnyjunk as well. Either way, Carreon seems to rely on things said about Funnyjunk, but is still filing on his own behalf. That's just weird.
Blogger Nick Nafpliotis called Carreon on Friday and posted an interview with him, which reveals a bit more behind Carreon's thinking on the legal front, and may explain why IndieGoGo and the charities are included in the lawsuit:
Carreon replied that under California law, you must be properly registered to conduct a fundraiser, something he is certain that Mathew Inman (operator of The Oatmeal) and IndieGoGo (the crowdfunding site being used The Oatmeal) are not.
"You might think of it as the 'Pseudo Santa' law," he explained. "Anybody can get a Santa suit. Then around Christmas time, you can probably make pretty good money wearing one outside of Macy's, ringing a bell, and saying you'll give the money to the Salvation Army. But you can't do that."
Carreon went on to say that he had been in contact with the American Cancer Society and the National Wildlife Federation and confirmed that Indiegogo had not executed the proper fundraiser paperwork. He explained that this missing documentation gives a sponsoring organization the power to shut down a campaign that may bring a charity itself into disrepute or injure its goodwill...or might be "using a charity as a human shield for a slander campaign inciting people to cyber vandalism," Carreon added.
Even given all of that, I'm not sure why IndieGoGo, NWF or ACS were included. Even if we assume that Carreon is correct that this is some sort of "illegal" fundraiser, it seems like IndieGoGo should be protected under Section 230 of the CDA. Amusingly, since Carreon continually insists that Funnyjunk is protected under the DMCA's safe harbors, you would think he would be up on the 230 safe harbors as well. Separately, again, even assuming that Carreon's analysis is correct, I'm not sure why that gives him standing to sue. Others (the charities? the government?) would seem like more reasonable entities who could bring a case. But Carreon?
IndieGoGo has told others that Carreon did, indeed, request it take down Inman's fundraising effort, and it turned him down, but (unlike the DMCA safe harbors), that's not that big of a deal. There's no "takedown" requirement to retain immunity in Section 230.
Separately, I can't see where there's a trademark claim. Carreon has indicated that he has trademarked his name, but unless there's something in the filing that shows something completely different than what's currently been made public, I can't see how there's any trademark issue at all. Inman's statements may have mocked Carreon, but that's not trademark infringement. You'd have to be using the name in commerce in a manner that caused a likelihood of confusion in that people would somehow believe that Carreon supported Inman's actions. That is difficult to believe no matter how you look at this.
We'll wait to see what's in the actual filing, but from what's already been said, this seems like a massive uphill battle, and one not made any better by the fact that he appears to be suing two famous charities in the process.
Two other points:
In that interview with Nafpliotis, Carreon makes some odd justifications for why he thinks it's okay to blame Inman for various attacks on his site (and a fake Twitter account). He basically says that because the comics that Inman draws are "dehumanizing," it's fair to assume that the attacks are because of that -- and (I'm not joking) compares it to Disney drawing cartoons that mocked Japanese people leading to Truman dropping the bomb on Japan:
"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 dehumanize someone, that is the first step to inciting people. The emails that I've gotten...many of them wish me death or wish for the complete collapse of my law practice...and they are virtually all uninformed."
If people are sending Carreon nasty emails, that's a pretty stupid thing to do, but it's silly to blame Inman for it.
Carreon also hints that Inman might be responsible for someone setting up a fake Twitter account in his name which had some "offensive statements." His evidence that Inman was responsible? At the same time that the fake account tweeted some stuff, Inman posted a tweet mocking Carreon in somewhat offensive terms. That tweet did not link to or reference the fake account, but according to Carreon: "I don't know if that's coincidence. Why was he on twitter at the same time the impersonator was? I don't know."
We've suggested in the past that Carreon might want to learn a bit more about how the internet works. And here's one reason why: many people who use Twitter are pretty much always on Twitter. There's nothing surprising or odd about being on Twitter all the time. Inman's tweet indicates that he uses TweetDeck, one of (if not) the most popular Twitter applications, which you leave running all the time and thus has you "on Twitter" basically all the time.
As most people know, you will find perhaps no person around who is more vehement in saying that copyright infringement is not theft. I have argued that at length for years. Copyright infringement is not theft. It's not theft, it's not stealing. It's just not. That said, in no way do I think that someone who discovers that their work has been infringed and then refers to it as "theft" or "stealing" has "defamed" someone else. That's just crazy. It's an inaccurate portrayal, but one that is used colloquially all too frequently. To rise to the level of defamation would be something else entirely. Of course, it does not appear from the description that defamation is even a consideration here, since the lawsuit is from Carreon not Funnyjunk.
Lastly, Inman here has definitely won in the court of public opinion, and Carreon's legal efforts aren't doing him any favors in that battle -- by just not knowing when to stop digging (and almost creating a Godwin's law reference).
Wow. Just... wow. Following the net fight between The Oatmeal webcomic creator Matt Inman, and aggregator of non-funny stuff, Funnyjunk, we've been pointing out that Funnyjunk's lawyer, Charles Carreon needs to stop digging himself deeper into the hole he's found himself in. Instead, he seems to have decided on the opposite strategy, and he's digging deeper and deeper every minute.
If you don't recall, he was trying to shut down the fundraising effort that Inman set up in response to Funnyjunk's threat. And then he accused Inman of "instigating security attacks" against his website. The latest is that he's now redirected his own website to a sales page for his book, but also has done an interview with Dave Thier at Forbes, in which he's even more aggressive in fighting back against Inman and those who are mocking him. It's really quite incredible. Thier describes Carreon as being "excited about this bizarre new world he had stumbled into" and now focused on somehow pinning the blame on Matt Inman:
In his 20 years as a lawyer, he says, he’s written hundreds of letters like the one he sent Inman, but the response to this one was unique.
“So someone takes one of my letters and takes it apart. That doesn’t mean you can just declare netwar, that doesn’t mean you can encourage people to hack my website, to brute force my WordPress installation so I have to change my password. You can’t encourage people to violate my trademark and violate my twitter name and associate me with incompetence with stupidity, and douchebaggery,” he says. “And if that’s where the world is going I will fight with every ounce of force in this 5’11 180 pound frame against it. I’ve got the energy, and I’ve got the time.”
Except, uh, nowhere has Inman "declared netwar" nor has he encouraged anyone to hack Carreon's website. If it's true that scriptkiddies have gone after Carreon's website, that's unfortunate, but it's a ridiculous (and obnoxious) stretch to pin the blame for that on Inman. Of course, associating someone with incompetence, with stupidity and with douchebaggery is broadly a statement of opinion. There's a First Amendment thing we have that generally says that's okay. People can call each other stupid douchebags, and we like that in America.
The implications of Mr. Carreon's position are profoundly chilling. Under the rule he seems to suggest, if you write about bad behavior by someone else, even if you don't urge action, you run the risk that you will be held liable when one of your readers is inspired to hack or threaten or harass. Perversely, this means that the more criminal or unconscionable or horrific the conduct you are describing, the greater legal risk you take by writing about it. That's not the law, thank God. The very suggestion is un-American and contemptible.
Moreover, note that Mr. Carreon is suggesting that it is actionable not only to inspire people to undertake (alleged) illegal action, but actionable to inspire people to "associate me with incompetence with stupidity, and douchebaggery." In other words, if your criticism of someone's conduct leads others to form an opinion of him, and express that opinion, that's actionable. That's true to the extent that someone states false facts about a person — for instance, by falsely accusing them of child abuse. But The Oatmeal offered satirically expressed opinions about Mr. Carreon's conduct in a letter which The Oatmeal presented to his readers to review. To the extent that The Oatmeal opined that Mr. Carreon is incompetent, stupid, and a douchebag, those are classic opinions absolutely protected by the First Amendment. Under First Amendment law governing defamation, they are particularly protected because The Oatmeal presented the facts based on which he drew his opinions — namely, the letter itself. Under the theory that Mr. Carreon seems to be advancing, if I wrote you a letter suggesting that your wife beds down with diseased ocelots and calling for your children to be flogged, and you publish the letter and say that it suggests that I am a disturbed person of low character, then I would be legally responsible if people formed the same opinion based on the evidence you provided. Indeed, under Mr. Carreon's apparent theory, if he criticizes The Oatmeal's response to him as vulgar or unprofessional or uncivilized, he's legally responsible for people agreeing with him. This is not law, this is madness. And bear in mind that Mr. Carreon markets himself as a First Amendment champion.
But Carreon has decided that "there must be a law!" against this, and dammit, he's going to find it:
He may have a very difficult time proving that Inman “instigated attacks,” as he said on his website, but he’s certain he can find some legal recourse for what’s going on right now – “California code is just so long, but there’s something in there about this,” he says.
Back to Ken at Popehat, who notes in response, why yes, there is a law:
Read them carefully. And think. Think hard. Step back from the precipice. This can get better, by you letting it go. Or it can get worse. Much, much worse.
Carreon tells Thier that he welcomes "the opportunity to confront legally the misuse of a new technology." First of all, it's not that new, and he might want to do some digging into other clueless lawyers who have sought to shut down online criticism of themselves. Carreon is still digging and he's going to lose very, very badly in court with the arguments he's making right now. Given his statements to various reporters, he's already made it clear that he's seeking to suppress speech and that he's willing to use any law he can find to do so. That's a particularly short-sighted thing to do, given California's relatively strong anti-SLAPP law, which one hopes Carreon familiarizes himself with.
But, really, there's the bigger issue: what the hell is he thinking at this point? And isn't there anyone with a basic grasp of the internet who knows him who can sit him down and tell him to stop digging?
We had already suggested that Funnyjunk's lawyer, Charles Carreon, should stop digging after finding himself in quite the internet hole for threatening Matthew Inman, creator of The Oatmeal, over a scathing page mocking Funnyjunk. Inman's response was over the top, but was also pretty clearly protected free speech, including either factual statements or opinion. You would think that Carreon, who styles himself as a protector of the First Amendment, would recognize that. Yet, in response, Carreon has said that he was going to seek to shut down Inman's fundraiser for the American Cancer Society and National Wildlife Foundation.
And, now, it appears that Carreon is continuing to act petulantly after the internet suggested he stop digging. Lots of people pointed out that Carreon pulled down the "contact" page on his own website after the original story went viral, but as some have noticed he's replaced it with a "temporarily unavailable" page that accuses Inman of instigating "security attacks":
If you can't read it, it says:
Due to security attacks instigated by Matt Inman, this function has been temporarily disabled.
Really? Security attacks? And "instigated by Matt Inman"? Inman didn't instigate security attacks. He pointed out why he felt that your poorly thought out legal threat letter was, in fact, poorly thought out -- and he turned that into a force for good by setting up a fundraiser for some very popular charities (which, again, you tried to shut down). Considering how freely Carreon tossed around the threat of "defamation" claims against Inman for what he wrote about Funnyjunk, you'd think that he would be more careful before accusing Inman of instigating "security attacks" on his own website. I doubt Inman would fire back with a defamation lawsuit -- and you could argue which side of the defamation line this claim falls on -- but if we were to weigh the two, it sure seems like this statement from Carreon is a lot closer to defamation than anything that Inman said about Funnyjunk.
By the way, it's worth pointing out that the top blog post on Carreon's site is actually all about Chris Dodd's bad reaction to the internet rising up against him in the SOPA/PIPA fight. Carreon might want to read the first sentence of that post and figure out which character he's playing in this drama (or is it farce?):
The kittens kicked ass on Hollywood, and Hollywood, like every frustrated bully, is sounding like a sore loser.
As the famous saying goes, when you are in a hole, stop digging. Someone might want to send that message to lawyer Charles Carreon, who has (legitimately) worked on some good cases in the past. However, for reasons that are confusing even his friends, he seems to be trying to respond to a big mistake by hinting at an even bigger one. As you have probably heard -- since it's all over the freaking internet -- there's a little fight going on between funny webcomic site The Oatmeal (and its creator Matthew Inman) and the not very funny aggregator of things that people claim are funny site, Funnyjunk. You can read our take on the mess, if you'd like.
The summary version is that Inman got annoyed at people posting his comics on Funnyjunk and spoke out publicly about it (to be honest, his statements seemed to be an overreaction and include lots of silly statements about "stealing" that aren't particularly accurate). However, he was clear that he had no interest in suing or using the law at all. He just wanted to speak his mind and shame the site. Funnyjunk overreacted back... and then waited a while before doubling (or perhaps tripling) down on its overreaction by hiring Carreon to send Inman a letter threatening a lawsuit on a bunch of claims, nearly all of which appear to be totally bogus (the defamation claim is the main one, which is simply ridiculous, but there's also an absolutely crazy trademark claim that seems to suggest that Inman's opinion of Funnyjunk is "false advertising"), as well as demanding $20,000. Inman then responded in true internet fashion, by posting the letter with his thoughts interspersed and (most importantly) setting up a fundraiser at IndieGogo to try to raise $20,000, not to pay off Funnyjunk, but to donate to charity. And it came included with a marginally NSFW drawing involving a mother (apparently "Funnyjunk's") and a bear. You've probably seen it by now.
Anyway, somewhere along the way the Streisand Effect took over, and the whole thing went viral. Now, as we've learned in previous Streisand Effect situations, this is the point at which the person who overreacted begins to recognize how badly they screwed up and how they've made things a lot worse. And then they apologize and grovel or something along those lines -- and we chalk up another hash mark on the big scoreboard on the internet showing how social pressure and the court of public opinion can keep excessive legal threats in check.
But, of course, there are always some people who can't stop digging. In fact, I would guess that the people who often find themselves on the wrong end of the Streisand Effect are probably slightly more prone to excessive-digging in response to said Effect, because the type of person who doesn't really know the Streisand Effect is about to hit them is likely the kind of person who doesn't realize that continuing to dig doesn't get one out of a hole.
And, here, it appears that Carreon has failed to stop digging. He spoke to MSNBC and said a few things so stupid that he might want to have someone who is more internet native act as a filter prior to talking to the press in the future about these sorts of things. Here's the big one:
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.)
"I don't think that what I did was unreasonable," Carreon says while discussing the initial demands sent to Inman. He tells me that while this situation is unique, he is typically open to negotiation. 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.
Yes. A large portion of the internet hates you... and your response is to threaten to shut down a massively successful fundraiser for the National Wildlife Federation and the American Cancer Society? Really? Is that really the smartest response to the situation?
Then there's this:
"I'm completely unfamiliar really with this style of responding to a legal threat -- I've never really seen it before," Carreon explains.
Indeed, I don't think anyone is quite familiar with the full extent of Inman's response, but for a lawyer who plays up his connections to various internet-related lawsuits, you would think Carreon would have, perhaps, spent some time on the internet. And the internet, in general, is not a fan of bogus legal threats. There's a pretty long history of that, and it shouldn't have been that hard to predict that this threat would backfire.
Either way, as another day goes by, one hopes that Carreon's more level-headed friends will suggest that it may be time to ditch the shovel.
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.