There must be something in the air. In the past month, we’ve created sci-zombies by way of a terrible new drug craze. We’ve started a discussion about a sci-fi movie that will never end because it refuses to answer any questions it raises. And everyone is suing everyone else over cut and dry copyright cases.
No, not the copyright holder suing the copyright violater. Flip it around. It’s Threaten/Actually Sue People for Holding a Copyright and Publicly Trying to Defend It Month on the Internet. Didn’t you see the fliers?
I really didn’t want to go into The Oatmeal versus FunnyJunk business. I figured it was a very cut and dry case of a legal shakedown for some quick cash on a defamation suit. I was wrong. Terribly wrong.
Here’s the order of events so far:
Matthew Inman of The Oatmeal webcomic contacted the admin of FunnyJunk to have his comics taken down. Funnyjunk hosts user uploaded content and leaves it up to its users to police for copyright violaters. FunnyJunk complied with Inman’s first request.
Inman sents a second request to have hundreds, not dozens, of his comics removed. The FunnyJunk admin refused. Inman blogged about the experience. FunnyJunk tried to destroy The Oatmeal by falsely claiming Inman was going to shut down FunnyJunk. Inman decided to cut his losses and go back to making comics.
Lawyer Charles Carreon sent Matthew Inman legal notice of an intent to sue over defamation. Why? Because Inman never updated his original blog post (a year later) to change out the links to the stolen content on FunnyJunk. Carreon claimed it was defamation because the links were out of date and requested $20,000 on behalf of FunnyJunk to stop further legal proceedings. There were also claims of SEO shenanigans to make The Oatmeal post about FunnyJunk a top Google search, but that’s not how the Internet works at all. You can’t physically manipulate that data anymore like that to get a higher search engine ranking. If anything, those tactics can get you pulled from the Google listings.
But I digress. Inman posted Carreon’s letter–contact information blocked out–and added in his own response to Carreon’s threats. He defended his position and listed hundreds of other comics FunnyJunk hosted that were stolen from him. Inman then started a charity fundraiser to raise $20,000 for the American Cancer Society and the National Wildlife Foundation. He also drew a comic of FunnyJunk admin’s mom seducing a bear.
From here, we don’t know all the facts because there’s no way to verify a lot of the details of the story. It’s literally “he said, he said” territory. Where you can prove that FunnyJunk is still hosting comics from The Oatmeal and you can prove that Carreon sent Inman a letter (and Inman and his lawyer have responded), you can’t prove a lot of the other claims involved now.
Carreon claims that Inman intentionally called on his readers to harass him, hack his website, and ruin his reputation. Carreon claims his website was hacked and that people are impersonating him online to ruin him. He also claims that he will shut down the charity fundraiser.
Inman claims he didn’t do any of that. He claims he’s not responsible for the actions of his readers and just wants to make comics. He also claims that he didn’t make a yo mama joke about Carreon’s mother.
This was where I said, “there’s no way it can go further. Ignore it and everything will be fine.” I was wrong.
Carreon has now filed a federal lawsuit against Matthew Inman, IndieGoGo, the American Cancer Society, the National Wildlife Foundation, and 100 undisclosed defendants for trademark infringement, cyber-vandalism, false personation, and illegally raising money for charity.
To quickly break it down:
- Carreon’s name is trademarked. The Oatmeal’s letter damages the value of the trademark with allegedly false statements.
- Carreon claims his website was hacked. He says no damage was done before he changed the password, but the hacking counts as cyber-vandalism.
- Carreon claims that someone (and he suspects Inman) created a fake Twitter account in his name to damage his reputation.
- Carreon claims that IndieGoGo has not filed the proper paperwork to donate money to the American Cancer Society and the National Wildlife Federation. Therefore, the charity fundraiser is illegal because a PayPal-like crowd-sourcing site collected money for charity in the name of Matthew Inman.
I can’t speak on the first three (shaky on trademark law, saw no evidence of the website hacking, saw no evidence of the false personation). I will suggest that Mr. Carreon might not understand how IndieGoGo works. Their role in fundraising is providing a platform to raise money. They collect the funds and take a cut of the finished projects. They are not responsible for the people raising money the same way PayPal isn’t responsible for the companies who break the rules while using their service. IndieGoGo’s role is not raising money but providing webspace to raise money. Big difference.
Inman himself does not get the money until the donation period is over. Perhaps he is waiting to have the money in his account before filing paperwork to donate to the ACS and NWF. Maybe there’s a loophole allowing an individual to donate without the filings Carreon was looking for. That I cannot speak to.
The reason this case has become so interesting is the inclusion of IndieGoGo, the ACS, and the NWF. What do those three organization shave to do with a copyright/defamation dispute between Inman, Carreon, and FunnyJunk? Does Inman saying where the money is going constitute responsibility for the recipients and intermediaries? Carreon thinks so. I would disagree, especially based on the actual filing of the lawsuit.
Here’s what the case actually boils down to. Charles Carreon went after Matthew Inman because of a year old blog post. He claims that Inman cannot respond with legal action against FunnyJunk because he didn’t register copyright for every page on his website.
Matthew’s done a great job spinning it, but he’s not going to sue FunnyJunk. He couldn’t sue FunnyJunk. He couldn’t even counter sue FunnyJunk for copyright infringement if we sue him because he hasn’t registered the copyrights on any of those domains. Even if he did an expedited registration…he would get no per incident damages because the “infringement” occurred before the registration. He’s got nothing.
There’s a serious flaw to that logic. Matthew Inman published a book featuring a number of the stolen comics. Those are registered. He can easily prove damages based on those comics.
Furthermore, it is not necessary to file copyright to have a copyright. As soon as you put your novel idea down in a file, you have a copyright. It’s just not registered. A registered copyright only assists in taking legal action against violation. It’s not essential. It makes it easier to prove damages, but so does having each comic dated on the website with his copyright information on the bottom. It’s very hard to sue and win if you aren’t registered, but that doesn’t mean you can’t.
This is also why everything on the Internet isn’t free to use. You can’t just assume that because the little (c) is missing on a picture that no one has the copyright. Technically, the person who took the photo has the copyright. Now whether or not someone is willing to let you use their images is an entirely different issue altogether.
Carreon has actually claimed at this point that he didn’t know FunnyJunk ever hosted Inman’s comics without permission. His defense to that is claiming the only action is to file a DMCA takedown. That, too, is a bold assumption.
Every article I’ve ever encountered on how to handle DMCA disputes suggests contacting the person who stole the content first. You request they take down your copyright. If they refuse, you escalate to a DMCA claim. You don’t ever have to file a DMCA claim. Even if you do file a claim, it does not guarantee the content is taken down if the violater is combative. The only guarantee is if the webhost actually pulls the violater’s site and refuses to reupload it until the infringing content is removed.
If anything, FunnyJunk immediately deleting the hundreds of stolen comics that Inman posted linked to in the response to Carreon’s letter proves that FunnyJunk knew they were violating Inman’s copyrights. Carreon’s knowledge of the violation does nothing to mitigate this.
What we have here is a pretty cut and dry copyright case that blew up because of public action. If neither Inman nor the admin of FunnyJunk never blogged about the initial dispute, this might not have happened. Could you imagine if we heard about every DMCA/copyright violation claim in the news? I would guess that we would need a separate section of the paper just to cover the daily cases, not to mention an hour or two of programming on the major news networks every night to cover just the general interest cases.
But if the cases like this weren’t discussed, we wouldn’t know about all the different ways that lawyers can try to angle IPR law to create victims and villains. That’s useful information.
Look on the bright side. Someone has managed to make IPR law fun and trendy. That’s as good an excuse as any to brush up on your IPR knowledge and get a better perspective on how the US system works.
Thoughts? Please refrain from harassing comments or alleged defamation. Focus on the case, not the characters. Carreon’s not the only lawyer who thinks you can sue for defamation based on writing about news stories on a blog or website. Thanks.
Mr. Carreon will be happy to note that I did not use his name nor FunnyJunk as keywords on this post.