This is an absolute domination. Not only is it far more thorough than Carreon's original statement and quite clearly dismantles every single point he makes, but it's a very reasonable and human-readable letter that contains a number of well informed possible outcomes and suggestions for courses of action that funnyjunk can take.

Honestly at this point the best think funnyjunk can do is publish an apology. This whole issue has been extremely public and has not only completely ruined funnyjunk's reputation (if they ever had one), but also made Carreon (who seemed previously to be a relatively respected lawyer) look like an absolute idiot and a scumbag for his frankly stupid and uninformed research and attempts to take down a charity initiative.

Sometimes you have to realize that you have been absolutely dominated and just drop your pride and give in before it gets any worse. This is one of those situations.

I know it's not in the fun tone of these particular proceedings, but consider that this exchange illustrates a problem that does exist on the Internet: the DMCA, as it exists today, seems to create asymmetric incentives for the infringement vs. protection of copyrighted content.

The collection of copyrighted content from around the web can be "outsourced" to the users of a site like FunnyJunk or (as the letter points out) YouTube. The content is then hosted and advertising run next to it, generating revenue for the hosting company.

This basically allows companies to leverage the fans of content against the creators of that content. People upload The Oatmeal comics to FunnyJunk because they like the comics! But by doing so they are enabling the redirection of financial gain from The Oatmeal to FunnyJunk.

To fix this redirection, the owner or controller of the copyright must then file DMCA requests for each individual instance of infringement at each individual website. It's an impossible task, as The Oatmeal has pointed out repeatedly. And I don't know of any way to crowdsource it--to incent The Oatmeal fans to do it for The Oatmeal.

We're all cheering for The Oatmeal now, but tell the same story with The Pirate Bay and Sony Music, or YouTube and Viacom, and would the comments below be of the same tenor? I would guess probably not. But the structural issue is exactly the same.

I'm not advocating for any particular solution, just trying to draw parallels.

This is amazingly and impressively thorough. He cites relevant caselaw left and right; the two that particularly struck me were:

- "FunnyJunk also alleges The Oatmeal's statements constitute false advertising under the Lanham Act. However, the statements made by The Oatmeal do not constitute commercial advertising or promotion, and therefore section 1125(a)(1)(B) of the Lanham Act is inapplicable."

- "Even assuming that all of the content on FunnyJunk is uploaded by users and FunnyJunk otherwise qualifies for DMCA immunity, it’s possible that The Oatmeal may be able to satisfy the “red flag” exception for DMCA immunity. See Viacom Int’l, Inc. v. YouTube, Inc., 676 F.3d 19, 41 (2d Cir. 2012) (discussing “red flag” test and reversing grant of summary judgment in favor of YouTube). It is also possible that FunnyJunk hasn’t complied with the requirements of the DMCA and thus cannot take advantage of its protections. Among other things, the DMCA requires a service provider to designate an agent, provide contact information, and file a notice of designation with the Copyright Office. Without taking a position on the other issues, I’ll note simply that FunnyJunk does not appear to have a notice of designation on file with the Copyright Office. This alone would be enough to undermine anydefense of immunity to claims of infringement that The Oatmeal (or third parties) may assert."

Great lawyer.

So let's say Funnyjunk stops threatening and decides not to sue. What have they lost?

* Legal fees for sending a couple of threating letters.

What have they gained?

* A full-page spread in The Oatmeal advertising the fact to all readers of Slashdot, HN, and many other social media sites that Funnyjunk exists, carries user-submitted comics such as would be interesting to readers of The Oatmeal, and are friendlier to content submitters than they are to the DMCA.

* Massive SEO links. Four out of the first six search results for "the oatmeal" from DDG refer to Funnyjunk. Funnyjunk has an entire section on http://en.wikipedia.org/wiki/The_Oatmeal#FunnyJunk_legal_dis... and an entire article dedicated to the dispute.

Now most of us want to believe "But this is negative publicity and Funnyjunk couldn't possibly want that". But before you conclude that, consider how little people are going to remember about this incident in just a few weeks. For example, do you remember even today the name of the Funnyjunk CEO or of his lawyer? I don't, but I remember Funnyjunk whereas I had never heard of it at all before. I've even been to their site several times now (following up on links posted at The Oatmeal).

I hate to say it, but this was brilliant and The Oatmeal fell for it.

I love the summary:

"At the end of the day, a lawsuit against The Oatmeal in this situation is just a really bad idea"

Never has a lawyer summarised a situation so clearly and succinctly.

The Oatmeal's lawyer, Venkat Balasubramani [1], is a regular contributor to Santa Clara law professor Eric Goldman's Technology & Marketing Law blog [2].

[1] https://twitter.com/#!/VBalasubramani

[2] http://blog.ericgoldman.org/

Smart people have at times succumbed to the foolishness of representing themselves in court. This reply should be a testament to the invaluable help a great lawyer can be in making one's case (if it weren't obvious already).

Personally speaking, I don't think it's necessary to send a letter of this length to rebut what is a spurious claim by FJ. The Oatmeal's lawyer has analysed the case well and is aware of its flawed nature, but this didn't need to be stated in the letter, as it would have sufficed to relay his analysis to OM.

I am fairly confident FJ's lawyer is aware of the flaws in his case and although an easy target, he is likely to be aware of relevant case law.

The point is that FJ's lawyer's letter was more akin to a shakedown used to obtain leverage, rather than a legitimate letter before claim detailing the full extent of the accusations present.

I would have responded in a blunt fashion denying their claims and asking them to prove loss to the value of $20,000.

"... I'll note simply that FunnyJunk does not appear to have a notice ofdesignation on file with the Copyright Office."

If true, that's pretty bad- that means that FunnyJunk's safe harbor status can be challenged (17 U.S.C. § 512(c)(2))

Can someone post the text of this outside of Scribd? Their site always breaks in my browsers and I can't log in right now to download the PDF.

The Oatmeal's donation campaign to the Wildlife fund and Cancer Society (and 2 other charities) is up to $168,000! http://www.indiegogo.com/bearlovegood?a=700062

The only winners in this legal brouhaha are the charities, how's that for turning the world up-side-down.

Carreon has certainly been owned by The Oatmeal's lawyer.

For those that didn't read it, I believe the answer from The Oatmeal in his blog is absolutely hilarious: http://theoatmeal.com/blog/funnyjunk_letter

Nicely dismantles all the relevant points pretty easily, needs more bear fondling older ladies. B+.

This article estimated the time of the "Blog Post" by saying the first comment was about "10 months ago", so the posted time must be before that.

This actually points out a very annoying thing that many bloggers do: They don't date the blog posts. For some reason, they think that the posts are timeless. This is especially annoying for technical articles, where the knowledge of time of publication is crucial.

My suggestion is: date your articles.

"(Interestingly, the subsequent blog post contains a screenshot of a statement by FunnyJunk that, under FunnyJunk’s own logic, would constitute defamation: "[t]he Oatmeal wants to sue funnyjunk andshut it down!" The Oatmeal never threatened to sue FunnyJunk, nor did he ever indicate thathe wanted to shut down FunnyJunk’s website.)"

Damn. You need some ice for that burn?!

From two years ago and perhaps the site has a different owner now, but a revealing look at FunnyJunk:

http://www.wickedfire.com/affiliate-marketing/97419-250k-uni...

You need to register to see the thread, but the main part:

Posted: 07-23-2010, 04:28 PM

"My site, Funnyjunk.com has about 6 million page views a day and 250k uniques a day. It currently has no ad networks.

Valueclick, Adsense, and Casale kicked me off for adult content.

What adult content you ask? Nothing worse than you would see on youtube. The porn gets flagged and such."

This is probably some of the best advertising Venkat can do for himself.

Nice letter, and very well written.

I never read anything written like this in portugues. The lawyers here abuse in use legalese.

So, one question that I had initially was addressed in the response, namely: does FunnyJunk actually qualify for DMCA fair harbor status?

From what I've read, it's a pretty simple and strict guideline - register an agent with the US Copyright Office so that you can receive notices of infringement. If you do that, you're protected from user-uploaded content.

In the response, Venkat alludes to the lack of a registered agent, so I went and looked it up (http://www.copyright.gov/onlinesp/list/f_agents.html). I can't see Funny Junk listed anywhere. If this is the case, they should consider themselves very lucky that they aren't getting counter-sued into oblivion.

Am I correct in the need for an agent? Am I looking in the right place?

A successful defamation case in America requires proof that the offender had committed so called actual malice. This is very hard to do.

The Oatmeal's donation campaign to the Wildlife fund and Cancer Society (and 2 other charities) is up $168,000! http://www.indiegogo.com/bearlovegood?a=700062

The only winners in a legal brouhaha are the charities, how's that for turning the world up-side-down.

The only sad thing about reading this, is the incredible expense of creating such a response. In my experience, response letters such as these littered with appropriate references can easily cost several thousand dollars. I guess just the 'cost of doing business' on the internet.

This back and forth public argument feels a lot like the hype up for a professional wrestling, boxing, or mma match. Both sides talking themselves up while the audience picks sides and eats it up.

I'm sure this wasn't intended but it's fascinating to say the least.

This letter is surprisingly readable to non-lawyers. I wonder if this is sometimes done intentionally if the lawyer writing it knows it may/will end up publicly available like this.

From a layman's POV, this just looks like abusing law for profit. There is no potential justice here, just profit. Call me a simpleton, but how is that not a crime in its self?

It's been a big week for the Streisand Effect. Between The Oatmeal and Never Seconds, nearly a quarter million dollars has been raised for charities.

"At the end of the day, a lawsuit against TheOatmeal in this situation is just a really bad idea"

My favourite line.

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Oatmeal shouldnt have said they mirrored his site.

Carreon just got lawyered

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