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Not Much Funny About This Junk

Sometimes stating the obvious is necessary – like in the photo attached to this post (which I took while traveling in Australia this past winter).  People ask why in society we need disclaimers preventing behavior that would seem obvious and unnecessary to 99.999999% of the population.  The next time someone complains about unnecessary disclaimers to me, I will point them to this post about the online and now legal saga between FunnyJunk.com (Funny Junk) , TheOatmeal.com (The Oatmeal), and attorney Charles Carreon (who, according to Arstechnica.com, is a self-proclaimed “counsel to the good and the good looking“).  I guess homely evil-doers need not apply.  Yes, I’m talking to you Kim Jong-un.

To many, lawyers have a sketchy reputation.  Just recently, we’ve had lawyers as prostitutes [insert lawyer joke here], lawyers planting drugs on an elementary school volunteer, and possibly even as murderers.  Now we have lawyers suing charities.  Wonderful.

How did we get to a lawyer suing charities including the American Cancer Society (especially one with a storied and successful career)?  Read more below.

For a quick background, The Oatmeal creates web comics which people can view for free with a web store available to purchase merchandise that incorporates different comics and characters.  Funny Junk is an aggregator that allows users to submit content (including comics) and may pick-up comics from around the web on its own.

It all started innocently about one year ago when The Oatmeal apparently realized that Funny Junk had scraped The Oatmeal’s entire website (or someone had submitted the entire site to Funny Junk) and made a post asking its readers what it should do.  The post accused Funny Junk of:

Here’s how FunnyJunk.com’s business operates:

  1. Gather funny pictures from around the internet
  2. Host them on FunnyJunk.com
  3. Slather them in advertising
  4. 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!”
  5. Cash six figure advertising checks from other artist’s stolen material

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.

In response, Funny Junk sent an e-mail to all of its users (note that the below e-mail appeared on The Oatmeal):

Also, Funny Junk removed the material The Oatmeal complained about – well some of it anyway.  For its part, The Oatmeal maintains that they never threatened to sue Funny Junk in its initial post.

Fast Forward a year.  On June 2, 2012, Funny Junk’s attorney, Charles Carreon sent a demand letter to The Oatmeal (which you can read in full here) demanding the The Oatmeal retract the statements made one yer earlier (by removing them from the Oatmeal’s website) and pay $20,000.

The Oatmeal responded with a comic (in addition to a letter from its lawyer) that essentially said “no” and “Oatmealed” the letter inserting various comics along the way.  At the end of the comic, The Oatmeal informed Funny Junk that instead of paying Funny Junk $20,000, they would raise the $20,000 online, take a picture of the cash and then donate half to the National Cancer Society and the other half to the National Wildlife Federation.  The comic also contained a reference to the lawyer’s mom and an unsuspecting bear that should probably not be mentioned here.

Then things got weird.

The donation campaign was wildly successful.  To date, The Oatmeal has raised over $200,000 (ten times the initial goal).  Not surprising, Mr. Carreon did not take this missive lying down.

Before we move on this story, I should tell you about a situation I faced about 8 years ago.  I was involved in a case in which I was defending an attorney who faced a frivolous suit by an unhappy litigant (from the opposing side of a case of the targeted lawyer).  Without too much effort, I had the case dismissed and the unhappy litigant turned his attention towards me by buying a domain name that contained my name and the words “sucks” in it.  The website did not contain any content.  Needless to say, I was a bit unhappy – partly because for whatever reason that website was on the first page when someone searched for my name on the internet.  I was picturing prospective clients searching for my name and seeing that website and running for the hills.  I thought about sending a demand letter, bringing a suit for defamation, or taking any number of actions.  My girlfriend at the time – who is my wife now (and right much more than she is wrong about these things) – convinced me to sit back and do nothing.  And guess what – it worked.  The website fell in the rankings because of a lack of content and one year later, the litigant decided not to renew the domain name.  Lesson learned.

Soon after The Oatmeal published its letter and commenced its donation campaign, someone set up a fake Twitter account purporting to defend Mr. Carreon, but did so in a way that made him look worse.  I would like to think if that happened to me, I would have the good sense to move on (or a least a wife who would promote that idea like she did 8 years ago).

Mr. Carreon’s original response on Twitter was perfectly reasonable(and he successfully got Twitter to shut down the account):

Unfortunately, Mr. Carreon does not have someone with the good sense of someone like my wife in his life or else what I am about to tell you would not have occurred.  To start with a good rundown is here and here.  Here is my cliff notes version:

Mr. Carreon responded by filing a lawsuit – not on behalf of Funny Junk (remember them?), but on his own behalf against The Oatmeal’s founder, Matthew Inman, the website hosting the fundraising activity, Indiegogo, and the charities themselves: the American Cancer Society and the National Wildlife Federation. In the suit, Mr. Carreon also names Does he is attempting to unmask for starting the fake Twitter account and other instances of cyber-vandalism.

I note initially when reading the complaint (which you can read here via PopeHat or here via Mr. Carreon’s own website – PopeHat also has a rundown of the lawsuit here), that Mr. Carreon names the two charities as defendants, but seemingly fails to assert claims against them.  In subsequent interviews, Mr. Carreon states that his aim in naming the charities in the lawsuits was to ensure that they received the money (by creating a trust over the donated monies) and apparently created standing for himself by making a donation himself.  I have two issues with this.  First, this can be accomplished without bringing the charities into the lawsuit.  The money does not reside with the charities – it resides somewhere else.  A trust can be created requiring the monies to be paid to the charities.  The charities do not need to be involved in legal proceedings at this point. This is evidenced by Mr. Carreon’s own complaint, as the causes of action in the complaint fail to allege anything against the charities themselves.  Second, by suing the charities, Mr. Carreon is requiring them to expend funds to defend the lawsuit (which will probably involve making a Rule 12(b)(6) Motion to Dismiss).  That costs money and is unfortunate that organizations dedicated to solving cancer and protecting the environment have to divert resources to this silliness.

Now Mr. Carreon is threatening to serve subpoenas to unmask the person behind the fake Twitter account (which Twitter disabled) and the Electronic Frontier Foundation has taken to Mr. Inman’s defense.  What frustrates me most about this suit is that hate speech on the Internet is a very serious thing (as Mr. Carreon should know) and it can be very damaging for companies and people that are targeted.  The reality is, in today’s environment, a campaign by a few anonymous bloggers can ruin someone.  I have seen it first-hand.  Lawsuits like this, however, do nothing to advance that cause (specifically, not policing the Internet, but assuring those aggrieved that they have a way to remedy the wrong against them) and need to stop.

Even a friend (the lawyer who famously took Righthaven down) of Mr. Carreon  has begged Mr. Carreon to stop.  I don’t think he’s listening.

Stay tuned.

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